Comments on Draft IDEA regulations

 These four sections are key points the Bazelon Center will make in its comments on the proposed regulations implementing the Individuals with Disabilities Education Improvement Act. Comments on the regulations (Federal Register: June 21, 2005, Vol 70, No. 118) must be submitted by 5 pm, September 6.

 Due Process Protections and Discipline

1. Recommendation:  Delete 300.536(b)(2), relating to the definition of a “change in placement” and “manifestation review”.  Retain the current regulatory definition of “change in placement” for discipline purposes (300.519)

Rationale:  Neither IDEA 2004 nor the legislative history allow or support creating an extra “substantially similar” behavior requirement for determining whether non-consecutive days of removal are a change in placement. Moreover, just what constitutes “substantially similar” behavior is highly subjective, prone to overuse, and likely to lead to litigation. The proposed regulation also appears to permit students to be removed and denied educational services for manifestations of their disabilities, if the periods of removal are for non-consecutive periods each shorter than 10 school days, but cumulative to more than 10 school days, so long as the behaviors are not substantially similar. Disabilities may manifest in behaviors that are not substantially similar.  Under the proposed regulation, if a child is excluded for non-consecutive periods, he or she may be denied educational services and therefore FAPE. 

Additionally, the final clause of this proposed section is vague and unclear.  It says that if “the child’s behavior is substantially similar to the child’s behavior in the incidents that resulted in the series of removals, taken cumulatively, is determined, under § 300.530(f), to have been a manifestation of the child’s disability.” 

 Positive Behavioral Supports and Functional Behavioral Assessments

 The IDEA 1997 amendments had important provisions including targeted services and supports for children and youth with emotional and behavioral problems. Two important tools were mentioned for addressing these problems: functional behavioral assessments and positive behavioral interventions and supports. The inclusion of these concepts in the statute was both revolutionary and unremarkable-- revolutionary because the federal government had never before explicitly required use of these practices, and unremarkable because professional literature reports the successful use of these techniques for more than 25 years. The Department should continue to support and expand the use of functional behavioral assessments and positive behavioral interventions and supports.

1. Recommendation: modify 300.324 (a)(2)(i) , relating to the development of an IEP.

(i) In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies based on functional behavioral assessments, to address that behavior.

2. Recommendation: Support 300.530(d)(1)(ii), relating to Functional Behavioral Assessments in the discipline provisions of the law.

Rationale:  IDEA 2004 § 615(k)(1)(D)(ii) mandates that the Functional Behavioral Assessment must result in services designed to address a behavioral violation “so it does not recur.”  It is appropriate that the regulation use the same standard as in the statute.

 Transition

 Myriad federal programs seek to address the needs of youth with serious mental health conditions who are transitioning into adulthood. Of these, IDEA is one of the most important because the transitional services provided under IDEA are crucial to a successful transition into the next phase of an adolescent’s life. The proposed regulations are essential to keeping the transition requirements of IDEA strong and aiding youth as they move on their way into a new chapter of life.

1. Modify 300.320 (b) by requiring the IEP for a student with transition services to include a statement of interagency responsibilities and any needed linkages, as required by the current regulations.

Rationale: Parents and students rely on interagency services and linkages as they prepare their child for life after school.

2. Modify 300.320 (b) to require transition services to include vocational/career training through work study and provision of documentation to ensure accommodations in the workplace and post-secondary education including accommodations in the administration of college entrance exams.

Rationale: Such services are essential for students with emotional disturbance to assist them in managing the challenges of work or higher education settings.

 Emotional Disturbance Definition

Rationale: Children with mental, emotional and behavioral disorders often face barriers to identification under IDEA; this leads to poor educational outcomes. Services designed and offered under IDEA can greatly assist in addressing these students' mental health needs, improving their academic achievement, and strengthening their chances for success. We urge the Department of Education to reexamine the definition of "emotional disturbance." Specifically, we urge the elimination of the reference to “socially maladjusted” in the current definition of emotional disturbance [34 C.F.R. Sec. 300.7(c)(4)(ii)]. The exclusion of children from eligibility on the basis of “social maladjustment” poses a significant barrier to identifying correctly children with mental/emotional disorders. Research finds no justification for a distinction between mental/emotional disorder and social maladjustment and even if it did exist, no valid instruments exist to make such a distinction. Ten states have dropped the exclusion of social maladjustment. Eliminating this exclusion from the federal definition will assist State and local educational agencies in reducing misidentification that leads to inappropriate placements in other categories and the provision of inappropriate special education services.

Feel free to use these points in your comments.