North Carolina Department of Pub

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1501 DEFINITIONS

The Individuals with Disabilities Education Improvement Act (IDEA) was signed into law on December, 2004 by President George W. Bush. The provisions of the act will be effective on July 1, 2005, with the exception of some elements of the definition of “highly qualified teacher” that took effect upon signing of the act. This is one in a series of North Carolina documents (based on OSEP documents) that provide information regarding changes in IDEA that affect the North Carolina Procedures Governing Programs and Services for Children with Disabilities.

Please note that items in bold signify areas in which North Carolina exceeds the requirements of the IDEA. For these bolded areas, LEA’s are obligated to continue implementing the current State Procedures until further notification. Items in italics signify areas where North Carolina Procedures Governing Programs and Services for Children with Disabilities are in conflict with the IDEA. These italicized items must be implemented in concert with the current procedures.

IDEA 2004 adds:

1. Assistive Technology

Exception – The term does not include a medical device that is surgically implanted, or the replacement of such a device.

2. Related Services

Exception – The term does not include a medical device that is surgically implanted, or the replacement of such a device.

3. Universal Design

The design of products or environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. The term “universal design” has the meaning given the term in section 3 of the Assistive Technology Act of 1998 (29 U.S.C. 3002).

Note: “Universal Design” is used in SEC. 612. STATE ELIGIBILITY

(16) PARTICIPATION IN ASSESSMENTS

(E) UNIVERSAL DESIGN – The state educational agency (or, in the case of a district-wide assessment, the local education agency) shall, to the extent feasible, use universal design principles in developing and administering any assessments under this paragraph.

4. Transition Services

The term “transition services” means a coordinated set of activities for a child with a disability that:

· Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

· Is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and

· Includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and when appropriate, acquisition of daily living skills and functional vocational evaluation.

5. Highly Qualified

For any special education teacher the term “highly qualified” has the meaning given the term in Section 9101 of the Elementary and Secondary Education Act (ESEA) 1965, except that the term also:

· Includes the requirements described in Section 612(10)(B); and

· Includes the option for teachers to meet requirements of ESEA by meeting the requirements of Section 602(10)(C) or (D) of IDEA.

[602(10)(A)]

Note: Section 602(10)(A) and (C)-(F) of IDEA 2004 (definition of a “highly qualified” special education teacher) took effect on December 3, 2004.

6. Ward of the State

Applies to foster children or wards of the state or children in the custody of a public child welfare agency. The term does not include a foster child who has a foster parent who meets the definition of parent.

7. Core Academic Subjects

Refers to English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography

8. School Nursing Services

Added as a related service.

9. Functional Achievement/Performance

Refers to behaviors across different environments such as how the youth interacts with peers at school, in the community, at work; self-care, mobility, self-determination, safety, etc.

10. Peer Reviewed Research

Are those practices that have been scrutinized under strict standards by persons in the same profession or a panel of independent experts that apply strict standards of scholarship to the work they review. IDEA 2004 refers to the statement of special education and related services and supplementary aids and services.

11. Homeless Children and Youth

As defined by Title X McKinney-Vento Homeless Assistance Act means individuals who lack a fixed, regular, and adequate night-time residence and includes:

– Children and youths who are sharing housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are abandoned in hospitals or are awaiting foster care placement;

– Children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings;

– Children and youths who were living in cars, parks, public spaces, abandoned building, substandard housing, bus or train stations, or similar settings; and

– Migratory children (as defined by school law) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described above.

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1504 INDIVIDUALIZED EDUCATION PROGRAM TEAM

IDEA 2004:

1. Members of the IEP team.

The IEP team is composed of the following persons:

· The parents of a child with a disability;

· Not less than one regular education teacher (if the child is, or may be, participating in the regular education environment);

· Not less than one special education teacher, or when appropriate, not less than one special education provider;

· A representative of the local education agency (LEA) who is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; is knowledgeable about the general curriculum; and is knowledgeable about the availability of resources of the LEA;

· An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described above;

· Other individuals, at the discretion of the parent or the agency, who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and

· Whenever appropriate, the child with a disability.

[614(d)(1)(B)]

2. IEP team meeting attendance not necessary.

A member of the IEP team is not required to attend an IEP meeting, in whole or part, if:

· The parent of a child with disability and the LEA agree, due to the fact that the member’s area of the curriculum or related service is not being modified or discussed. The parent’s agreement must be in writing. [614(d)(1)(C)(i)and(iii)]

· The member submits, in writing to the parents and the team, his or her input into the development of the IEP prior to the meeting. [614(d)(1)(C)(i) and (iii)]

3. Excusal from IEP meeting.

A member of the IEP team may be excused from attending an IEP meeting, in whole or in part, if:

· The parent of a child with a disability and the LEA agree, due to the fact that the member’s area of the curriculum or related services is not being modified or discussed.

· The parent consents in writing, and the LEA also; and

· The member submits, in writing to the parents and the team, his or her input into the development of the IEP prior to the meeting.

[614(d)(1)(C)(ii) and (iii)]

4. New provisions for making changes to the IEP.

In making changes to a child’s IEP after the annual IEP meeting for a school year, the parent of a child with a disability and the LEA may agree not to convene an IEP meeting for the purpose of making such changes, and instead may develop a written document to amend or modify the child’s current IEP. [614(d)(3)(D)]

Changes to the IEP may be made either by the entire IEP team or, as provided in Section 614(d)(3)(D), by amending, rather than redrafting the entire IEP. Upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated. [614(d)(3)(F)]

5. Consolidation of IEP meetings.

To the extent possible, the LEA will encourage the consolidation of reevaluation meetings and other IEP team meetings for the child. [614(d)(3)(E)]

6. Alternative means of meeting participation.

When conducting IEP team meetings and placement meetings pursuant to Sections 614, 615(e), and 615(f)(1)(B), and carrying out administrative matters under Section 615 (such as scheduling, exchange of witness lists and status conference), the parent of a child with a disability and the LEA may agree to use alternative means of meeting participation, such as video conferences and conference calls. [614(f)]

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1505 EVALUATION

IDEA 2004 adds:

1. In General

Notwithstanding section 607(b), when determining whether a child has a specific learning disability as defined in Section 602, a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.

2. Additional Authority

In determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based intervention (as defined by NCLB) as a part of the evaluation procedures.

3. In General

Except as provided below, a local educational agency shall evaluate a child with a disability in accordance with this section before determining that the child is no longer a child with a disability.

4. Exception:

In general, the evaluation described above shall not be required before the termination of a child’s eligibility due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for a free appropriate public education under State law.

5. Summary of Performance

For a child whose eligibility under this part terminates under circumstances described in clause (4), a local education agency shall provide the child with summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child’s postsecondary goals.

SPECIAL RULE FOR ELIGIBILITY DETERMINATION (614(b)(5)(A)

In making a determination of eligibility, a child shall not be determined to be a child with a disability if the determinate factor for such determination is:

· Lack of appropriate instruction in reading, including in the essential components of reading instruction (as defined in section 1208(3) of the ESEA of 1965);

· Lack of instruction in math; or

· Limited English Proficiency

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1507 INDIVIDUALIZED EDUCATION PROGRAM FOR CHILDREN WITH DISABILITIES AND WRITTEN EDUCATION PROGRAM FOR THE PREGNANT

IDEA 2004:

1. Changes present levels of educational performance.

· IEPs must include:

* Present levels of academic achievement and functional performance; and

* A statement of measurable annual goals, including both academic and functional goals

· The requirement for short-term objectives or benchmarks has been deleted except for children who take alternate assessments aligned with alternate achievement standards.

[614(d)(1)(A)(i)(I)]

2. Changes regarding assessments in the IEP.

· A statement of any individual appropriate accommodations that are necessary to measure academic achievement and functional performance on state-wide and district-wide assessments.

· If the IEP team determines that the child will take an alternate assessment, a statement must be provided that indicates why the IEP team selected a particular alternate assessment, and why it is appropriate for the child.

[614(d)(1)(A)(i)(VI)(aa), (bb)(BB)]

3. Changes to annual goals.

IEPs are required to include a statement of measurable annual goals, including academic and functional goals.

[614(d)(1)(A)(i)(II)]

4. Changes to measuring progress and reporting.

· IEPs are required to include:

* A description of how the child’s progress toward meeting the annual goals will be measured; and

* A description of when periodic progress reports will be provided to the parents.

· Reporting may include:

* Quarterly reports; or

* Other periodic reports concurrent with the issuance of report cards.

[614(d)(1)(A)(i)(III)]

5. Program for child aged 3 through 5.

· In the case of a child with a disability aged 3 through 5 (or, at the discretion of the Sate educational agency, a 2-year-old child with a disability who will turn age 3 during the school year), the IEP Team shall consider the individualized family service plan that contains the material described in section 636, and that is developed in accordance with this section, and the individualized family service plan may serve as the IEP of the child if using that plan as the IEP is- -

* Consistent with State policy; and

* Agreed to by the agency and the child’s parents.

6. Changes to statement of services.

Adds to the statement of the special education and related services and supplementary aids and services, for the child or on behalf of the child – that they be based on peer-reviewed research, to the extent practicable.

[614(d)(1)(A)(i)(IV)]

7. Changes Individualized Education Program – Transition:

· Beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter:

* Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills;

* The transition services including courses of study needed to assist the child in reaching those goals; and

* Beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child’s rights under this title, if any, that will transfer to the child on reaching the age of majority under section 615(m).

· Failure to meet transition objectives:

If a particular agency, other than the local educational agency, fails to provide the transition services described in the IEP in accordance with paragraph (1)(A)(i)(VIII), the local educational agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the child set out in the IEP.

North Carolina will retain the provision of beginning transition at age 14 (or younger when appropriate). The State will report to the Secretary and the public this requirement which exceeds federal law.

8. Changes Children with Disabilities in Adult Prisons

In general, the following requirements shall not apply to children with disabilities who are convicted as adults under State law and incarcerated in adult prisons:

The requirements of items (aa) and (bb) of paragraph (1)(A)(i)(VIII) (relating to transition planning and transition services), so do not apply with respect to such children whose eligibility under this part will end, because of such children’s age, before such children will be released from prison.

9. Adds Age of Majority Statement

Beginning not later than 1 year before the child reaches the age of majority under State law, a statement that the child has been informed of the child’s rights, if any, that will transfer to the child on reaching the age of majority under section 615(m).

10. Adds Programs for Children who Transfer School Districts

TRANSFER WITHIN NORTH CAROLINA

In the case of a child with a disability who transfers school districts within the same academic year, enrolls in a new school, and had an IEP that was in effect in North Carolina, the local education agency shall provide the child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the LEA adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.

TRANSFER OUTSIDE STATE

In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and had an IEP that was in effect in another State, the local educational agency shall provide the child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the local educational agency conducts an evaluation in accordance with Section .1505 determined to be necessary by the agency, and develops a new IEP, if appropriate, that is consistent with Federal and State law.

TRANSMITTAL OF RECORDS

To facilitate the transition for a child who transfers in-state, the new school shall take reasonable steps to promptly obtain the child’s records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous school in which the child was enrolled, pursuant to Section 99.13(a)(2) of title 34, Code of Federal regulations (FERPA); and

The previous school in which the child was enrolled shall take reasonable steps to promptly respond to such request from the new school.

11. Rule of construction.

Nothing in Section 614 shall be construed to (1) require that additional information be included in a child’s IEP beyond what is explicitly required in Section 614, or (2) require the IEP team to include information under a component of a child’s IEP that is already contained under another component of such IEP.

[614(d)(1)(A)(ii)]

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1512 DUE PROCESS PROCEDURES FOR PARENTS AND CHILDREN

The Individuals with Disabilities Education Improvement Act (IDEA) was signed into law on December 3, 2004 by President George W. Bush. The provisions of the act will be effective on July 1, 2005, with the exception of some elements of the definition of “highly qualified teacher” that took effect upon signing of the act. This is one in a series of North Carolina documents (based on OSEP documents) that provide information regarding changes in IDEA that affect the North Carolina Procedures Governing Programs and Services for Children with Disabilities.

IDEA 2004:

1. Revises requirements regarding the provision of the procedural safeguards notice to parents.

A copy of the procedural safeguards shall be given to the parents one (1) time a year, except that a copy shall also be given to the parents:

· Upon initial referral or parental request for evaluation;

· Upon the first occurrence of the filing of a petition for a due process hearing under Section 615(b)(6) (Federal)/Section .1512 (NC); and

· Upon request by a parent.

2. Adds a provision for LEA to display the procedural safeguards on its internet website.

A local education agency (LEA) may place a current copy of the procedural safeguards notice on its internet website if such website exists.

3. Adds (to required notice content) requirements for due process hearing requests, and civil actions, including:

· The time period in which to make a complaint;

· The opportunity for the agency to resolve the complaint;

· The availability of mediation; and

· The time period in which to file civil actions.

4. Outlines the method of providing notices required under Section 615 (Federal)/Section .1512 (NC).

A parent of a child with a disability may elect to receive required notices by an electronic mail (e-mail) communication, if the LEA makes such an option available.

5. Specifies that LEAs may not use North Carolina Procedures Section .1512(G) remedies to obtain consent for services.

If the parent of a child [with a disability] refuses to consent [to special education and related services], the LEA shall not provide special education and related services to the child by utilizing a due process hearing, as described in the North Carolina Procedures, Section .1512 (G).

If the parent of such child refuses to consent for their child to receive special education and related services, or if the parent fails to respond to a request to provide such consent:

· The LEA shall not be considered to be in violation of the requirement to make available a free and appropriate public education to the child for the failure to provide such child with the special education and related services for which the LEA requests consent; and

· The LEA shall not be required to convene an individualized education program (IEP) meeting or develop an IEP for the child for the special education and related services for which the LEA requests such consent.

6. Mandates consent for wards of the state.

If the child is a ward of the State and is not residing with the child’s parent, the agency shall make reasonable efforts to obtain the informed consent from the parent of the child for an initial evaluation to determine whether the child is a child with a disability. The agency shall not be required to obtain informed consent from the parent of the child for an initial evaluation to determine whether the child is a child with a disability if:

· Despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child;

· The rights of the parents of the child have been terminated in accordance with State law; or

· The rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law, and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child. See Section .1513 for appointment of a surrogate parent

7. Requires that mediation is available whether or not there is a due process hearing request.

Any state education agency (SEA) or local education agency (LEA) that receives assistance under IDEA shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a due process hearing request, to resolve such disputes through a mediation process.

8. Provides parents and schools the opportunity to meet with disinterested party.

An LEA or SEA may establish procedures to offer to parents and schools that choose not to use the mediation process an opportunity to meet with a disinterested party who is under contract with:

· A parent training and information center or community parent resource center in the state; or

· An appropriate alternative dispute resolution entity, to encourage the use, and explain the benefits, of the mediation process to parents.

9. Adds mediation requirements.

In the case that a resolution is reached to resolve the issues in the due process hearing requested through our state complaint process or through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that:

· Is signed by both the parent and a representative of the agency who has the authority to bind such agency; and

· Is enforceable in any State court of competent jurisdiction or in a District court of the United States.

10. Adds “resolution sessions”.

Prior to the scheduling of an impartial due process hearing, the LEA shall convene a meeting with the parents and the relevant member or members of the individualized education program (IEP) team who have specific knowledge of the facts identified in the due process hearing request:

· Within 15 days of receiving notice of the parents’ petition/request for a hearing;

· Which shall include a representative of the agency who has decision-making authority on behalf of such agency;

· Which may not include an attorney of the LEA unless the parent is accompanied by an attorney; and

· Where the parents of the child discuss their due process hearing request, and the facts that form the basis of the due process hearing request, and the LEA is provided the opportunity to resolve the due process hearing request, unless the parents and the LEA agree in writing to waive such meeting, or agree to use the mediation process.

· Any agreement from the resolution session can be voided within 3 business days of the meeting.

If the LEA has not resolved the issues that are the subject of the request for the due process hearing to the satisfaction of the parents within 30 days of the receipt of the request, the due process hearing may occur, and all of the applicable timelines for a due process hearing shall commence.

In the case that a resolution is reached to resolve the issues that are the subject of the request for the due process hearing at the resolution session, the parties shall execute a legally binding agreement that is:

· Signed by both the parent and a representative of the agency who has the authority to bind such agency, and

· Enforceable in any State court of competent jurisdiction or in a District court of the United States.

If the parties execute such an agreement, a party may void such agreement within three business days of the agreement’s execution.

11. Provides that attorneys’ fees are not available for required resolution session meetings (as required by Section 615(f)(1)(B)(I)).

A meeting conducted pursuant to Section 615(f)(1)(B)(I) shall not be considered:

· A meeting convened as a result of an administrative hearing or judicial action; or

· An administrative hearing or judicial action for purposes of Section 615(i).

12. Adopts current regulations regarding who may request a due process hearing.

Either the parent or the public agency may request a due process hearing with respect to any matter relating to identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education to such child. [34 DFR 300.507(a)(1); 615(b)(6)(A); 615(f)(1)(A)]

13. Requires either party requesting a due process hearing to provide notice to the other party.

Procedures that require either party, or the attorney representing the party, to provide a request for a due process hearing notice in accordance with Section 615(c)(2) (which shall remain confidential) to the other party and forward a copy of such notice to the state education agency (SEA) that shall include:

· The name of the child, address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending;

· In the case of a homeless child or youth (within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the child and the name of the school the child is attending;

· A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problems; and

· A proposed resolution of the problem to the extent known and available to the party at the time.

[615(b)(7)(A)]

A party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets the requirements of Section 615(b)(7)(A)(ii). [615(b)(7)(B)].

The due process notice required under Section 615(b)(7)(A) shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party, in writing, that the receiving party believes the notice has not met the requirements of section 615(b)(7)(A). [615(c)(2)(A)].

14. Specifies timelines for actions related to a request for a due process hearing.

If the LEA has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process request, the LEA shall, within 10 days of receiving the request for a due process hearing, send to the parent a response that shall include:

· An explanation of why the agency proposed or refused to take the action raised in the complaint;

· A description of other options that the individualized education program (IEP) team considered and the reasons why those options were rejected;

· A description of each evaluation procedure, assessment, record or report the agency used as the basis for the proposed or refused action; and

· A description of the factors that are relevant to the agency’s proposal or refusal.

[615(c)(2)(B)(i)(I)]

A response filed by an LEA pursuant to Section 615(c)(2)(B)(i)(I), i.e. Prior Written Notice, shall not be construed to preclude such LEA from asserting that the parent’s due process request was insufficient where appropriate. [615(c)(2)(B)(i)(II)]

Except as provided in Section 615(c)(2)(B)(i), the respondent shall, within 10 days of receiving the notice of request for a due process hearing, send to the other party a response that specifically addresses the issues raised in the request. [615(c)(2)(B)(ii)]

The party who filed the petition for a hearing under Section 615(c)(2)(A) shall provide notification within 15 days of receiving the request for a due process hearing [615(c)(2)(C)]

Within five days of the receipt of the petition for a hearing, under Section 615(c)(2)(D), the hearing officer shall make a determination on the face of the notice of whether it meets the requirements of Section 615(b)(7)(A), and shall immediately notify the parties in writing of such determination. [615(c)(2)(C)]

A party may amend its request for a due process hearing notice only if:

· The other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a resolution meeting held pursuant to Section 615(f)(1)(B); or

· The hearing officer grants permission, except that the hearing officer may only grant permission at any time not later than five days before a due process hearing occurs.

The applicable timeline for a due process hearing under this part shall recommence at the time the party files an amendment notice, including the timeline under Section 615(f)(1)(B).

[615(c)(2)(E)(i)(ii)]

15. Adds provisions regarding hearing officers.

A hearing officer conducting a due process hearing pursuant to Section 615(f)(1)(A) shall, at minimum:

· Not be an employee of the SEA or the LEA involved in the education or care of the child, or person having a personal or professional interest that conflicts with his or her objectivity in the hearing;

· Possess knowledge of, and the ability to understand, the provisions of this title, Federal and State regulations pertaining to this title, and legal interpretations of this title by Federal and State courts;

· Possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

· Possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

[615(f)(3)(B)]

16. Sets guidelines for issues raised at a due process hearing.

The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice filed under Section 615(b)(7), unless the other party agrees otherwise. [615(f)(3)(B)]

17. Specifies parameters for hearing officer decisions.

Subject to Section 615(f)(3)(E)(i)], a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education. [615(f)(3)(E)(i)]

In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies:

· Impeded the child’s right to a free appropriate public education;

· Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or

· Caused a deprivation of educational benefits.

[615(f)(3)(E)(ii)(I-III)]

RULE OF CONSTRUCTION – Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under Section 615. [615(f)(3)(E)(iii)]

RULE OF CONSTRUCTION – Nothing in this paragraph shall be construed to affect the right of a parent to file a complaint with the SEA. [615(f)(3)(F)]

18. Adds provisions regarding the awarding of attorneys’ fees.

In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs:

· To a prevailing party who is an SEA or an LEA against the attorney of a parent who files a request for a due process hearing or subsequent cause of action that is frivolous, unreasonable or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation; or

· To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

[615(i)(3)(B)(i)(II)(III)]

19. Clarifies that parents may file separate due process requests on additional issues.

Nothing in this section shall be construed to preclude a parent from filing a separate request for a due process hearing on an issue separate from a request already filed. [615(o)]

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1516 DISCIPLINARY SUSPENSIONS

IDEA 2004 adds:

1. Adds new authority for school personnel.

School personnel may consider any unique circumstances on a case-by-case basis when deciding to order a change in placement for a child with a disability who violates a student conduct code.

[615(k)(l)(A)]

2. Establishes a new standard for manifestation determinations.

Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local education agency (LEA), parent and relevant members of the Individualized Education Program (IEP) team (as determined by the parent and LEA) shall review all relevant information in the student’s file, including the child’s IEP, any teacher observations and any relevant information provided by the parents to determine if conduct was:

· Caused by, or was in direct and substantial relationship to, the child’s disability; or

· A direct result of the LEA’s failure to implement the IEP.

[615(k)(l)(E)(i)]

3. Adds a new provision when there is a determination that a behavior was a manifestation of the disability.

If the LEA, parent and relevant members of the IEP team . . . determine that the conduct was a manifestation of the child’s disability, the IEP team shall:

· Conduct a functional behavioral assessment and implement a behavioral intervention plan for the child; or

· If a behavioral intervention plan has been developed, review the existing plan and modify it as necessary to address the behavior.

If the behavior is a manifestation of the child’s disability, the child is returned to the placement from which he or she was removed, unless the parent and LEA agree otherwise. [615(k)(l)(F)]

4. Establishes a new standard for special circumstances.

A school is permitted to remove a child with a disability to an alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of child’s disability, in cases where a child:

· Carries or possesses a weapon to or at school, on school premises, or to or at a school function under jurisdiction of a state educational agency (SEA) or LEA;

· Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA; or

· Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or LEA.

[615(k)(l)(G)]

5. Adds a new definition.

Serious Bodily Injury: defined in USC 1365(g) to mean a bodily injury that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ or faculty.

[615(k)(7)(D)]

6. Authority of the Hearing Officer.

In making the determination under Section 615(k)(3)(B)(i), the hearing officer may order a change in placement of a child with a disability … in such situations, the hearing officer may return a child with a disability to the placement from which the child was removed or order a change in placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.

[615(k)(3)(B)(ii)]

When an appeal under Section 615(k)(3) has been requested by either the parent of the LEA, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer, or until the expiration of the time period provided for in Section 615(k)(l)(C), whichever occurs first, unless the parent and the SEA or LEA agree otherwise. [615(k)(4)(A)]

7. Establishes a timeline for expedited hearings for placement during appeals.

The SEA or LEA shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested, and shall result in a determination within 10 school days after the hearing. [615(k)(4)(B)]

8. Revises the standard for a basis of knowledge for children not yet eligible for special education and related services.

An LEA is deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred, a:

· Parent expressed concern in writing to an administrator or a teacher;

· Parent of the child has requested an evaluation of the child pursuant to Section 614(a)(l)(B); or

· Teacher or other school or LEA personnel expressed specific concerns about a pattern of behavior demonstrated to an administrator.

[615(k)(5)(B)]

North Carolina Department of Public Instruction

Exceptional Children Division

IDEA 2004, Implementation

Technical Assistance Document

April 2005

Revised October 2005

.1517 CHILD FIND

IDEA 2004 adds:

1. Child find includes children who are homeless or wards of the state.

2. Equitable participation:

The child find process shall be designed to ensure the equitable participation of parentally placed private school children with disabilities and an accurate count of such children.

3. Activities:

In carrying out child find, the LEA shall undertake activities similar to those activities undertaken for the agency’s public school children.

4. Cost:

The cost of carrying out this clause, including individual evaluations, may not be considered in determining whether an LEA has met its obligations (under clause (i)).

5. Completion period:

Such child find process shall be completed in a time period comparable to that for other students attending public schools in the LEA.

6. Consultation:

To ensure timely and meaningful consultation, an LEA shall consult with private school representatives of parents of parentally placed private school children with disabilities during the design and development of special education and related services for the children, including regarding---

· The child find process and how parentally placed private school children suspected of having a disability can participate equitably, including how parents, teachers, and private school officials will be informed of the process;

· The consultation process among the LEA, private school officials and parents of parentally placed private school children with disabilities, including how such process will operate throughout the school year to ensure that parentally placed private school children with disabilities identified through the child find process can meaningfully participate in special education and related services;

· By whom special education and related services will be provided, including a discussion of types of services, including direct services and alternate service delivery mechanisms, how such services will be apportioned if funds are insufficient to serve all children and how and when these decisions will be made; and

· How, if the LEA disagrees with the views of the private school officials on the provision of services or the types of services, whether provided directly or through a contract, the LEA shall provide to the private school officials, a written explanation of the reasons why the LEA chose not to provide services directly or though a contract.