FW: Ed. Dept. Releases Rules for Parents Under IDEA

December 11, 2008

From: Randee

Sent: Thursday, December 11, 2008 9:36 AM

To: Randee

Subject: Ed. Dept. Releases Rules for Parents Under IDEA

Importance: High

Ed. Dept. Releases Rules for Parents Under

IDEA

Published Online: December 5, 2008

Published in Print: December 10, 2008

By A. s

http://www.edweek.org/ew/articles/2008/12/10/15iep.h28.html?print=1

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.

Changing Minds

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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