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How State Rules and Regulations Impact IDEA
It is essential to read and know your state special education regulations. Why?
Frequently parents and educators believe that only the federal Department of Education can set the rules for kids with disabilities. This is not the case. |
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We cannot say it often enough. It is essential to read and know your state special education regulations. Why?
Frequently parents and educators believe that only the federal Department of Education can set the rules for kids with disabilities. This is not the case.
The Individuals with Disabilities Education Act (IDEA) is the federal law that governs the education of children with disabilities.
Congress reauthorized the IDEA in 2004, and in 2006, the US Department of Education (USED) developed and published the federal special education regulations that clarify and explain how to implement IDEA.
After you understand the federal law and regulations, you should read your state special education law and regulations.
State Rules and Regulations
To receive federal special education funding, states must develop special education statutes and regulations that are consistent with IDEA and the federal special education regulations.
State statutes and regulations may provide more rights than federal law, but may not take away rights provided by federal law.
How State Rules May Differ
Remember: State law cannot be less than federal law – but State law or rules often interpret or add to the federal law and regulations.
Some state laws may actually provide more protections.
Requirement for State Funding
As part of their annual state application to receive funding, states must identify any rules, regulations, or policies that are state-imposed, and not required by IDEA or federal regulations.
States must also inform local educational agencies (LEAs) in writing of these state-imposed rules, regulations, or policies (20 U.S.C. 1407(a)).
As an example, the state of Texas currently reports 30 state-imposed rules. These include:
- Contracting for Residential Educational Placements for Students with Disabilities.
- Instructional Arrangements and Settings.
- Referral for Full and Individual Initial Evaluation.
- Time Line for All Notices.
- Age Ranges for Student Eligibility.
- Procedures for Surrogate and Foster Parents
- Procedures for Use of Restraint and Time-Out.
- Content of the Individualized Education Program (IEP).
- Transfer of Assistive Technology Devices.
- General Program Requirements and Local District Procedures.
- Interventions and Sanctions.
- Allowable Expenditures of State Special Education Funds.
- Qualifications of Special Education, Related Service, and Paraprofessional Personnel.
More examples:
Restraint and Seclusion
While the use of restraint & time-out have become key issues at the national level in the last few years, Texas passed a law on these issues over 20 years ago.
Issues for parents to consider include appropriate staff training, and staff awareness and understanding of district policy and procedures. Texas requires progress monitoring for behavioral needs, as it is required for academic needs.
Recently Texas passed a law requiring cameras in certain special education classrooms.
IEP Team Decisions
In Texas, if a parent disagrees with decisions at the IEP meeting, the school must give the parent the option of recessing, then reconvening the IEP meeting to try to reach a solution. The period for reconvening must not exceed 10 days, unless mutually agreed upon.
Disability Categories
IDEA allows a state to have a disability category for children aged 3 through 9 experiencing developmental delay.
The Texas State Education Agency (TEA) developed the “Non-Categorical Early Childhood (NCEC)” category for students 3-5 who are “evaluated as having an intellectual disability, an emotional disturbance, a specific learning disability or autism.” Rather than looking for a developmental delay, the student must be diagnosed as having one of these labels.
Dual Enrollment
Texas rules allow 3-4 year olds to “dual enroll” in a private school and a public school, but not other students. Children ages 3 and 4 can go to a private preschool and receive services, such as speech therapy, through the public school. As another option, preschoolers may stay home (like many children this age do) and receive needed public school services.
Autism and Dyslexia
For many years in Texas, strong parent groups have represented children with Autism and Dyslexia. Texas has passed a number of laws placing additional requirements on schools for students diagnosed with Autism and Dyslexia (i.e., IEP Team consideration of strategies for improved and innovative programming).
Transition
Federal law says schools must start transition planning for after high school at the age of 16. A Texas state law (2011) requires that transition planning must begin for a student not later than when the student reaches 14 years of age.
Eligibility
IDEA age limit for eligibility (aging out of special education services) is 21. But Texas uses a September 1 date, so if a student turns 22 on September 2, he can remain eligible that entire school year. Texas also requires schools to serve children with hearing and vision disabilities from birth.
Due Process
The US Supreme Court has ruled that the burden of proof is upon the party that files for a due process hearing or a suit in court. In Texas, the burden of proof is on the party that files. A few states have passed a law that puts the burden of proof on the school to show that they have provided FAPE.
Parents often do not have the resources and information to show that the school did not provide FAPE.
Extended School Year (ESY)
IDEA rules require states to set the standards for determining when a student will need extended school year services. While most states use regression as a common standard, IDEA rules do not mention it. The definition of regression varies between states.
Some states use a variety of other standards. This may include situations like starting the school year late, helping to maintain recently acquired skills, or missing a lot of school.
LA state rules for ESY criteria (see page 16) - http://www.doa.la.gov/osr/lac/28v97/28v97.doc
More Differences in State Regulations
Some states have additional requirements for:
- evaluation/eligibility timelines
- teacher certification (including alternative certification procedures)
- teacher/student ratios
- students with disabilities in charter schools
- use of IEP facilitators
- age span in a special education class
- use of non-attorneys at due process hearings
Bottom Line – CHECK YOUR STATE RULES AND REGULATIONS!
If you live in Texas, these examples will illustrate how your state rules can impact the implementation of IDEA and the provision of special education services.
If you do not live in Texas – are you curious (or concerned) about the impact your state rules can have on your child’s special education services? You should be.
It is essential to read and know your state special education regulations.
If you do not have a copy of your state regulations, contact your state Department of Education.
Directory of State Departments of Education and Regs
https://www.yellowpagesforkids.com/help/seas.htm
How Well Do You Know Your State Regulations? Submit your comments--
Do you know how your state special education regulations differ from IDEA?
We would like to hear examples from your state of how special education regulations differ from the federal regulations. Your information might inform and guide other parents. This information could even influence state legislators in pushing for positive change.
Submit your comments on the Wrightslaw Way Blog.
Wrightslaw Note: Our appreciation to Chuck Noe, Education Specialist, Partners Resource Network (PRN), the Texas Parent Training and Information Center, for contributing to this article.
Contact info: cnoe59@hotmail.com
Created: 10/23/19
Revised:
