[blindlaw] Preliminary Analysis of the New Final Regulations Implementing IDEA

Tue Aug 8 10:57:29 CDT 2006

Below is a preliminary analysis of the new final regulations
>implementing IDEA for 2004.  These focus on visually impaired students
>and the news is, for the most part, good.
>The analysis was prepared by the American Foundation for the Blind.
>
>
>Preliminary Analysis of the Final Part B Regulations for the Individuals
>with Disabilities Education Act Amendments of 2004
>
>Prepared by Mark Richert, Esq., and Kay Alicyn Ferrell, Ph.D., AFB
>Public Policy Center
>
>The US Department of Education held a briefing on August 3, 2006 to
>announce the final regulations for Part B of the Individuals with
>Disabilities Education Act Amendments of 2004. An unofficial copy of the
>regulations is posted at
>http://www.ed.gov/policy/speced/guid/idea/idea2004.html#regulations. The
>official copy will be published in the Federal Register on August 14th.
>The document is 1705 pages in length and 2.2 MB (pdf) to 3.1 MB (MS
>Word) in size. Nearly 73% of the document is devoted to the preamble,
>which purports to respond to each of the more than 5500 comments
>received when the Notice of Proposed Rulemaking was published on June
>21, 2005. Part C regulations are expected to be published later in the
>year.
>
>AFB's preliminary analysis indicates that the regulations do not
>diminish the significant gains we have made in this reauthorization.
>While we did not prevail on all of our concerns, especially with respect
>to needed clarifications of instructional materials accessibility, the
>regulations are generally encouraging for the education of children with
>vision loss. AFB will continue to analyze the implications of these
>regulations and will disseminate our comments to the field on an ongoing
>basis. If you have concerns or questions about the final regulations,
>please contact Mark Richert, Director, Public Policy at
>mrichert at afb.net.
>Key Points
>
>The following paragraphs highlight the parts of the regulations that
>effect students with visual loss.
>
>NIMAS/NIMAC
>
>Section 300.172, regarding access to instructional materials, has been
>revised: (1) to make clear that States must adopt the National
>Instructional Materials Accessibility Standard (NIMAS), published as
>Appendix C to the final regulations; (2) to establish a definition of
>"timely manner," for purposes of Section 300.172(b)(2) and (b)(3) if the
>State is not coordinating with the National Instructional Materials
>Access Center (NIMAC), or Section 300.172(b)(3) and (c)(2) if the State
>is coordinating with the NIMAC; (3) to add a new Section 300.172(b)(4)
>to require SEAs to ensure that all public agencies take all reasonable
>steps to provide instructional materials in accessible formats to
>children with disabilities who need those instructional materials at the
>same time as other children receive instructional materials; and (4) to
>add a new Section 300.172(e)(2) to clarify, that all definitions in
>Section 300.172(e)(1) apply to each State and LEA, whether or not the
>State or LEA chooses to coordinate with the NIMAC.
>
>We are pleased that the Department has accepted our recommendations that
>ensure that students with vision loss are not forgotten if a state were
>to choose not to coordinate with NIMAC. Most significantly, the
>Department of Education has added a new section 300.172(b)(4) that
>states:
>
>(b)(4) In order to meet its responsibility under paragraphs (b)(2),
>(b)(3), and (c) of this section to ensure that children with
>disabilities who need instructional materials in accessible formats are
>provided those materials in a timely manner, the SEA must ensure that
>all public agencies take all reasonable steps to provide instructional
>materials in accessible formats to children with disabilities who need
>those instructional materials at the same time as other children receive
>instructional materials. [emphasis added]
>
>While there has been much concern about the population of children to be
>served under NIMAS/NIMAC, these regulations have carefully delineated
>the population by linking the definition of "blind persons or other
>persons with print disabilities" to "An Act to Provide Books for Adult
>Blind", thus incorporating the definition of those eligible to receive
>materials through the National Library Service for the Blind and
>Physically Handicapped.
>
>The regulations also make it clear that states must provide
>instructional materials in a timely manner and permits each state to
>determine what "timely manner" means, particularly if a state chooses
>not to participate in NIMAC. However, the regulations also make clear
>that children not otherwise included in the definition of "blind or
>other persons with print disabilities" are nevertheless entitled to
>receive instructional materials in a timely manner, even if they are not
>specifically subject to these provisions. [Section 300.172(b)(3)]
>
>The NIMAC File Repository. In spite of universal calls from our field
>for clarity about the role of the National Instructional Materials
>Access Center, how files are disseminated, and who is eligible to use
>them, the Department has declined to provide any additional direction or
>guidance about these vital matters. Clearly, all stakeholders will need
>to continue to work with the Department to address these concerns.
>Senior staff at the Department have indicated their willingness to
>provide subsequent technical assistance on all of the concerns that have
>been raised, and we look forward to continuing to work with the
>Department and NIMAC to resolve these issues.
>
>Orientation and Mobility, Travel Training. AFB recommended modifying the
>definition of travel training to exclude students with vision loss, in
>order to make clear that students with vision loss should be receiving
>orientation and mobility services, a distinctly different type of
>related service with specialized qualifications. The Department agreed
>with this change, stating:
>
>Discussion: We believe that including travel training in the definition
>of orientation and mobility services may be misinterpreted to mean that
>travel training is available only for children who are blind or visually
>impaired or that travel training is the same as orientation and mobility
>services. We will, therefore, remove travel training from Section
>300.34(c)(7). This change, however, does not diminish the services that
>are available to children who are blind or visually impaired. Travel
>training is defined in new Section 300.39(b)(4) (proposed Section
>300.38(b)(4)) for children with significant cognitive disabilities and
>any other children with disabilities who require this instruction, and,
>therefore, would be available for children who are blind or visually
>impaired, as determined by the child's IEP Team. Travel training is not
>the same as orientation and mobility services and is not intended to
>take the place of appropriate orientation and mobility services.
>Changes: We have removed "travel training instruction" from Section
>300.34(c)(7)(ii) to avoid confusion with the definition of travel
>training in new Section 300.39(b)(4) (proposed Section 300.38(b)(4)),
>and to clarify that travel training is not the same as orientation and
>mobility services and cannot take the place of appropriate orientation
>and mobility services.
>Therefore, the definition of orientation and mobility services in
>Section 300.34(c)(7) has been changed to remove the term "travel
>training instruction." Unfortunately, the Department is continuing to
>include the term "travel training instruction" under the definition of
>"special education", at Section 300.39(a)(2)(ii). While the Department
>did accept our recommendation to remove travel training from the
>definition of orientation and mobility as a related service, we continue
>to be concerned that the inclusion of travel training in the definition
>of special education will lead to ongoing confusion about the
>populations appropriately provided these services and the professionals
>qualified to provide them.
>
>Special Education HOUSSE. A new Section 300.18(e), regarding separate
>"high objective uniform State standards of evaluation" (HOUSSE), has
>been added to provide that a State may develop a separate HOUSSE for
>special education teachers, provided that any adaptations of the State's
>HOUSSE would not establish a lower standard for the content knowledge
>requirements for special education teachers and meets all the
>requirements for a HOUSSE for regular education teachers. This provision
>also clarifies that a State may develop a separate HOUSSE for special
>education teachers, which may include single HOUSSE evaluations that
>cover multiple subjects.
>
>Advocates may want to work within their states to create a separate
>HOUSSE governing teachers of students with visual impairments. As we
>have discussed previously, the highly qualified teacher provisions of
>IDEA 2004 and NCLB may adversely affect specialized schools. AFB is
>preparing a more comprehensive analysis of these new regulations,
>including those referring to highly qualified teachers.
>
>Teachers in Private Schools. Section 300.18(h) (proposed Section
>300.18(g)) has been modified to clarify that the highly qualified
>special education teacher requirements also do not apply to private
>school teachers hired or contracted by LEAs to provide equitable
>services to parentally-placed private school children with disabilities
>under Section 300.138.
>
>This provision may impact services to students with vision loss who are
>placed in private specialized schools. We are continuing to evaluate the
>implications of this provision.
>
>Extracurricular and Nonacademic Settings. The definition of
>supplementary aids and services in Section 300.42 (proposed Section
>300.41) has been modified to specify that aids, services, and other
>supports are also provided to enable children with disabilities to
>participate in extracurricular and nonacademic settings. Section
>300.107(a), regarding nonacademic services, has been revised to specify
>the steps each public agency must take, including the provision of
>supplementary aids and services determined appropriate and necessary by
>the child's IEP Team, to provide nonacademic and extracurricular
>services and activities in the manner necessary to afford children with
>disabilities an equal opportunity for participation in those services
>and activities. Section 300.117 (Nonacademic settings) has been changed
>to clarify that each public agency must ensure that each child with a
>disability has the supplementary aids and services determined by the
>child's individualized education program (IEP) Team to be appropriate
>and necessary for the child to participate with nondisabled children in
>the extracurricular services and activities to the maximum extent
>appropriate to the needs of that child.
>
>These provisions reinforce that special education and related services
>is broader than the general academic curriculum.
>
>Free appropriate public education. Section 300.101(c) has been revised
>to clarify that a free appropriate public education (FAPE) must be
>available to any individual child with a disability who needs special
>education and related services, even though the child has not failed or
>been retained in a course, and is advancing from grade to grade.
>
>This new and extremely important provision should assure parents and
>special educators alike that children with disabilities do not have to
>fail or otherwise demonstrate poor academic performance in order to be
>entitled to FAPE.
>
>Least restrictive environment. Section 300.116(b)(3) and (c) regarding
>placements, has been revised to remove the qualification "unless the
>parent agrees otherwise" from the requirements that (1) the child's
>placement be as close as possible to the child's home, and (2) the child
>is educated in the school he or she would attend if not disabled.
>
>The Department has retained the vital requirement for a continuum of
>alternative placements at Section 300.115(a): "Each public agency must
>ensure that a continuum of alternative placements is available to meet
>the needs of children with disabilities for special education and
>related services" and provides examples thereof (instruction in regular
>classes, special classes, special schools, home instruction, and
>instruction in hospitals and institutions).
>
>Section 300.114(b)(2) states that "A State must not use a funding
>mechanism by which the State distributes funds on the basis of the type
>of setting in which a child is served that will result in the failure to
>provide a child with a disability FAPE according to the unique needs of
>the child, as described in the child's IEP."
>
>In general the Department has reaffirmed the continuum of placement
>options and has prohibited preferential funding mechanisms that may have
>the effect of discouraging or limiting placement in specialized schools.
>
>Individualized Education Programs. Section 300.320 (Definition of IEP)
>has been revised in paragraph (a)(5) to replace "regular education
>environment" with "regular class," in order to be consistent with the
>language in IDEA. Our hope is that this provision should further
>emphasize that the educational environment is not the primary basis for
>placement.
>
>Section 300.324(b), regarding the review and revision of IEPs, has been
>changed to include a new paragraph (b)(2), to clarify that, in
>conducting a review of a child's IEP, the IEP Team must consider the
>same special factors it considered when developing the child's IEP. The
>NPRM was unclear about whether special factors were to be considered in
>the review and revision of IEPs, but has obviously been corrected in
>these final regulations.
>
>Discipline procedures. A new Section 300.530(e)(3), has been added to
>provide that, if the LEA, the parent, and members of the child's IEP
>Team determine that the child's behavior was the direct result of the
>LEA's failure to implement the child's IEP, the LEA must take immediate
>steps to remedy those deficiencies. This provision reinforces the
>responsibility of the LEA to meet a child's unique needs.
-------------- next part --------------
Below is a preliminary analysis of the new final regulations
>implementing IDEA for 2004.  These focus on visually impaired students
>and the news is, for the most part, good.
>The analysis was prepared by the American Foundation for the Blind.
>
>
>Preliminary Analysis of the Final Part B Regulations for the Individuals
>with Disabilities Education Act Amendments of 2004
>
>Prepared by Mark Richert, Esq., and Kay Alicyn Ferrell, Ph.D., AFB
>Public Policy Center
>
>The US Department of Education held a briefing on August 3, 2006 to
>announce the final regulations for Part B of the Individuals with
>Disabilities Education Act Amendments of 2004. An unofficial copy of the
>regulations is posted at
>http://www.ed.gov/policy/speced/guid/idea/idea2004.html#regulations. The
>official copy will be published in the Federal Register on August 14th.
>The document is 1705 pages in length and 2.2 MB (pdf) to 3.1 MB (MS
>Word) in size. Nearly 73% of the document is devoted to the preamble,
>which purports to respond to each of the more than 5500 comments
>received when the Notice of Proposed Rulemaking was published on June
>21, 2005. Part C regulations are expected to be published later in the
>year.
>
>AFB's preliminary analysis indicates that the regulations do not
>diminish the significant gains we have made in this reauthorization.
>While we did not prevail on all of our concerns, especially with respect
>to needed clarifications of instructional materials accessibility, the
>regulations are generally encouraging for the education of children with
>vision loss. AFB will continue to analyze the implications of these
>regulations and will disseminate our comments to the field on an ongoing
>basis. If you have concerns or questions about the final regulations,
>please contact Mark Richert, Director, Public Policy at
>mrichert at afb.net.
>Key Points
>
>The following paragraphs highlight the parts of the regulations that
>effect students with visual loss.
>
>NIMAS/NIMAC
>
>Section 300.172, regarding access to instructional materials, has been
>revised: (1) to make clear that States must adopt the National
>Instructional Materials Accessibility Standard (NIMAS), published as
>Appendix C to the final regulations; (2) to establish a definition of
>"timely manner," for purposes of Section 300.172(b)(2) and (b)(3) if the
>State is not coordinating with the National Instructional Materials
>Access Center (NIMAC), or Section 300.172(b)(3) and (c)(2) if the State
>is coordinating with the NIMAC; (3) to add a new Section 300.172(b)(4)
>to require SEAs to ensure that all public agencies take all reasonable
>steps to provide instructional materials in accessible formats to
>children with disabilities who need those instructional materials at the
>same time as other children receive instructional materials; and (4) to
>add a new Section 300.172(e)(2) to clarify, that all definitions in
>Section 300.172(e)(1) apply to each State and LEA, whether or not the
>State or LEA chooses to coordinate with the NIMAC.
>
>We are pleased that the Department has accepted our recommendations that
>ensure that students with vision loss are not forgotten if a state were
>to choose not to coordinate with NIMAC. Most significantly, the
>Department of Education has added a new section 300.172(b)(4) that
>states:
>
>(b)(4) In order to meet its responsibility under paragraphs (b)(2),
>(b)(3), and (c) of this section to ensure that children with
>disabilities who need instructional materials in accessible formats are
>provided those materials in a timely manner, the SEA must ensure that
>all public agencies take all reasonable steps to provide instructional
>materials in accessible formats to children with disabilities who need
>those instructional materials at the same time as other children receive
>instructional materials. [emphasis added]
>
>While there has been much concern about the population of children to be
>served under NIMAS/NIMAC, these regulations have carefully delineated
>the population by linking the definition of "blind persons or other
>persons with print disabilities" to "An Act to Provide Books for Adult
>Blind", thus incorporating the definition of those eligible to receive
>materials through the National Library Service for the Blind and
>Physically Handicapped.
>
>The regulations also make it clear that states must provide
>instructional materials in a timely manner and permits each state to
>determine what "timely manner" means, particularly if a state chooses
>not to participate in NIMAC. However, the regulations also make clear
>that children not otherwise included in the definition of "blind or
>other persons with print disabilities" are nevertheless entitled to
>receive instructional materials in a timely manner, even if they are not
>specifically subject to these provisions. [Section 300.172(b)(3)]
>
>The NIMAC File Repository. In spite of universal calls from our field
>for clarity about the role of the National Instructional Materials
>Access Center, how files are disseminated, and who is eligible to use
>them, the Department has declined to provide any additional direction or
>guidance about these vital matters. Clearly, all stakeholders will need
>to continue to work with the Department to address these concerns.
>Senior staff at the Department have indicated their willingness to
>provide subsequent technical assistance on all of the concerns that have
>been raised, and we look forward to continuing to work with the
>Department and NIMAC to resolve these issues.
>
>Orientation and Mobility, Travel Training. AFB recommended modifying the
>definition of travel training to exclude students with vision loss, in
>order to make clear that students with vision loss should be receiving
>orientation and mobility services, a distinctly different type of
>related service with specialized qualifications. The Department agreed
>with this change, stating:
>
>Discussion: We believe that including travel training in the definition
>of orientation and mobility services may be misinterpreted to mean that
>travel training is available only for children who are blind or visually
>impaired or that travel training is the same as orientation and mobility
>services. We will, therefore, remove travel training from Section
>300.34(c)(7). This change, however, does not diminish the services that
>are available to children who are blind or visually impaired. Travel
>training is defined in new Section 300.39(b)(4) (proposed Section
>300.38(b)(4)) for children with significant cognitive disabilities and
>any other children with disabilities who require this instruction, and,
>therefore, would be available for children who are blind or visually
>impaired, as determined by the child's IEP Team. Travel training is not
>the same as orientation and mobility services and is not intended to
>take the place of appropriate orientation and mobility services.
>Changes: We have removed "travel training instruction" from Section
>300.34(c)(7)(ii) to avoid confusion with the definition of travel
>training in new Section 300.39(b)(4) (proposed Section 300.38(b)(4)),
>and to clarify that travel training is not the same as orientation and
>mobility services and cannot take the place of appropriate orientation
>and mobility services.
>Therefore, the definition of orientation and mobility services in
>Section 300.34(c)(7) has been changed to remove the term "travel
>training instruction." Unfortunately, the Department is continuing to
>include the term "travel training instruction" under the definition of
>"special education", at Section 300.39(a)(2)(ii). While the Department
>did accept our recommendation to remove travel training from the
>definition of orientation and mobility as a related service, we continue
>to be concerned that the inclusion of travel training in the definition
>of special education will lead to ongoing confusion about the
>populations appropriately provided these services and the professionals
>qualified to provide them.
>
>Special Education HOUSSE. A new Section 300.18(e), regarding separate
>"high objective uniform State standards of evaluation" (HOUSSE), has
>been added to provide that a State may develop a separate HOUSSE for
>special education teachers, provided that any adaptations of the State's
>HOUSSE would not establish a lower standard for the content knowledge
>requirements for special education teachers and meets all the
>requirements for a HOUSSE for regular education teachers. This provision
>also clarifies that a State may develop a separate HOUSSE for special
>education teachers, which may include single HOUSSE evaluations that
>cover multiple subjects.
>
>Advocates may want to work within their states to create a separate
>HOUSSE governing teachers of students with visual impairments. As we
>have discussed previously, the highly qualified teacher provisions of
>IDEA 2004 and NCLB may adversely affect specialized schools. AFB is
>preparing a more comprehensive analysis of these new regulations,
>including those referring to highly qualified teachers.
>
>Teachers in Private Schools. Section 300.18(h) (proposed Section
>300.18(g)) has been modified to clarify that the highly qualified
>special education teacher requirements also do not apply to private
>school teachers hired or contracted by LEAs to provide equitable
>services to parentally-placed private school children with disabilities
>under Section 300.138.
>
>This provision may impact services to students with vision loss who are
>placed in private specialized schools. We are continuing to evaluate the
>implications of this provision.
>
>Extracurricular and Nonacademic Settings. The definition of
>supplementary aids and services in Section 300.42 (proposed Section
>300.41) has been modified to specify that aids, services, and other
>supports are also provided to enable children with disabilities to
>participate in extracurricular and nonacademic settings. Section
>300.107(a), regarding nonacademic services, has been revised to specify
>the steps each public agency must take, including the provision of
>supplementary aids and services determined appropriate and necessary by
>the child's IEP Team, to provide nonacademic and extracurricular
>services and activities in the manner necessary to afford children with
>disabilities an equal opportunity for participation in those services
>and activities. Section 300.117 (Nonacademic settings) has been changed
>to clarify that each public agency must ensure that each child with a
>disability has the supplementary aids and services determined by the
>child's individualized education program (IEP) Team to be appropriate
>and necessary for the child to participate with nondisabled children in
>the extracurricular services and activities to the maximum extent
>appropriate to the needs of that child.
>
>These provisions reinforce that special education and related services
>is broader than the general academic curriculum.
>
>Free appropriate public education. Section 300.101(c) has been revised
>to clarify that a free appropriate public education (FAPE) must be
>available to any individual child with a disability who needs special
>education and related services, even though the child has not failed or
>been retained in a course, and is advancing from grade to grade.
>
>This new and extremely important provision should assure parents and
>special educators alike that children with disabilities do not have to
>fail or otherwise demonstrate poor academic performance in order to be
>entitled to FAPE.
>
>Least restrictive environment. Section 300.116(b)(3) and (c) regarding
>placements, has been revised to remove the qualification "unless the
>parent agrees otherwise" from the requirements that (1) the child's
>placement be as close as possible to the child's home, and (2) the child
>is educated in the school he or she would attend if not disabled.
>
>The Department has retained the vital requirement for a continuum of
>alternative placements at Section 300.115(a): "Each public agency must
>ensure that a continuum of alternative placements is available to meet
>the needs of children with disabilities for special education and
>related services" and provides examples thereof (instruction in regular
>classes, special classes, special schools, home instruction, and
>instruction in hospitals and institutions).
>
>Section 300.114(b)(2) states that "A State must not use a funding
>mechanism by which the State distributes funds on the basis of the type
>of setting in which a child is served that will result in the failure to
>provide a child with a disability FAPE according to the unique needs of
>the child, as described in the child's IEP."
>
>In general the Department has reaffirmed the continuum of placement
>options and has prohibited preferential funding mechanisms that may have
>the effect of discouraging or limiting placement in specialized schools.
>
>Individualized Education Programs. Section 300.320 (Definition of IEP)
>has been revised in paragraph (a)(5) to replace "regular education
>environment" with "regular class," in order to be consistent with the
>language in IDEA. Our hope is that this provision should further
>emphasize that the educational environment is not the primary basis for
>placement.
>
>Section 300.324(b), regarding the review and revision of IEPs, has been
>changed to include a new paragraph (b)(2), to clarify that, in
>conducting a review of a child's IEP, the IEP Team must consider the
>same special factors it considered when developing the child's IEP. The
>NPRM was unclear about whether special factors were to be considered in
>the review and revision of IEPs, but has obviously been corrected in
>these final regulations.
>
>Discipline procedures. A new Section 300.530(e)(3), has been added to
>provide that, if the LEA, the parent, and members of the child's IEP
>Team determine that the child's behavior was the direct result of the
>LEA's failure to implement the child's IEP, the LEA must take immediate
>steps to remedy those deficiencies. This provision reinforces the
>responsibility of the LEA to meet a child's unique needs.