FW: [FVIndiana] Ed. Dept. Releases Rules for Parents Under IDEA

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Sent: Tuesday, December 09, 2008 3:02 PM

To: fvindiana

Subject: [FVIndiana] Ed. Dept. Releases Rules for Parents Under IDEA

Indiana's Article 7 went into effect in August. However,

the national law, IDEA has undergone some changes to its regulations. State law

can only be stronger than national law so we are updating you on the changes

until Article 7 can be updated, if needed.

Ed. Dept. Releases Rules for Parents Under IDEA By

A. s courtesy of Edweek.org.

The U.S. Department of Education

has released changes to regulations governing the Individuals

with Disabilities Education Act that affect rules regarding parental

consent, non-attorney representation, and compliance

requirements.

The rules, published in the Federal

Register on Dec. 1, state that parents have the right to revoke their

consent for their children to receive special education

services, after making a request in writing. Before the change, the

regulations were unclear about how parents could stop their child from

receiving special education services if they chose to do so, the Education

Department said.

In an explanation that accompanied the rules when they

were released for public comment earlier this year, the department said its

" long-standing interpretation " was that parents could not

unilaterally decide to have special education services stopped if the school

district believed the child still needed such services to receive a free,

appropriate public education.

The change allowing parents' revocation of consent is

" consistent with the IDEA's emphasis on the role of parents in protecting

their child's rights, " the department said. A district may ask why a

parent is choosing to revoke consent, but an explanation is not necessary.

The change means that students who are removed from

special education services are to be treated like general education students in

all ways, the department said, including losing some of the protections given

to students in special education who have discipline problems related to their

disabilities.

Parents are also allowed to change their minds and have

their children re-evaluated for special education services, even if earlier

they had revoked consent, the department said.

Another change in the regulations will allow state law to

determine whether non-lawyers can represent parents in due-process hearings.

The IDEA says that either side in a due-process hearing

may be accompanied by counsel, or by people with expertise in special

education. The law does not say, however, whether those experts can actually

represent parents if the experts are not lawyers.

The Education Department referred to a 2000 case in

Delaware, where authorities initiated proceedings against Marilyn Arons, a lay

special education advocate, for unauthorized practice of law.( " Court to

Weigh Expert Fees in IDEA Cases, " Jan. 18, 2006.) The Delaware Supreme Court ultimately decided that the IDEA

did not require the state to permit non-lawyers to represent parents.

The federal special education

law should respect the interest that states have in regulating legal practice,

the Education Department said. The new rule would also apply to districts,

which could also not be represented by lay advocates, such as special education

administrators, if state law forbade it.

The rule would not prevent parents from representing

themselves in due-process hearings. The U.S. Supreme

Court decided in a 2007 case that such representation was permissible. ( " High Court Backs Parents' Rights to Argue Cases Under

IDEA, " May 25, 2007.)

A third change states that if a school district

determines it is out of compliance with any of the provisions of the IDEA, the

district has one year from the time the problem is noted to correct it.

The timeline is needed because problems weren't being

fixed quickly enough, the department said. Before the adoption of the rule,

there was no timeline for correction in the IDEA.

Some commenters on the rules noted that some areas of

noncompliance can be fixed quickly, such as those that may relate to a specific

child. But larger, systemic problems might take a longer time to rectify.

However, a state or district can implement short-term

correction plans while developing broader strategies, the department said.

Vol. 28, Issue 15, Page 8

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