Utah

IDEA '97 Planning Committee

Response to Draft Federal Regulations for

IDEA, P.L. 105-17.

  1. General Recommendations:
  1. With regard to the Notes and Appendix C, we recommend that they be either included as regulations or taken out altogether. If they are important enough to be considered regulatory, then they should be built into the body of the regulations. Also, in some cases, such as §300.505 Note 3, the Notes add confusion to the regulations rather than serving as clarification.
  2. Regarding the date when the new IEP procedures must be in place, the Statute in §201(a)(2)(A) states, "Shall take effect on July 1, 1998". However, the Draft Regulations in §300.342(d)(1) states, "All IEPs in effect on July 1, 1998 must meet the requirements of §§300.340-300.351." We believe the Final Regulations should read, "All IEPs written after July 1, 1998 must meet the requirements of §§300.340-300.351."
  3. Define and use terms consistently. Several examples are included below in B.
  1. Defining and Using Terms Consistently. Specific items are grouped by subject area and include the following recommendations:

1. General
  1. We recommend use of the term "school days" instead of "business days" in §300.8 and throughout the document. Every time the term "day(s)" is used, precede it with the adjective "school" or "calendar".

2. Provision of Services
  1. The phrase "provision of special education and related services" in §300.505(a)(1)(ii) is used interchangeably with the term "placement" in §300.505(a)(2). We recommend using the phrase "provision of special education and related services".

3. Evaluation
  1. In §300.505(a)(1)(iii), we recommend use of the term "evaluation procedure" rather than "test".
  2. In §300.7 Note 5--The second sentence currently reads, "Some children with ADD or ADHD who are eligible under Part B of the Act meet the criteria for 'other health impairments' (see paragraph (b)(9) of this section)." As indicated above, we believe these, as well all Notes should be built into the body of the regulations. If information on ADD or ADHD is to be added to the regulations, we believe it is important to also include examples of other medical conditions such as Tourette's Syndrome and Wilson's disease.

4. Discipline

  1. In §300.520, we recommend adding the text "cumulative in a given school year " following the phrase "for not more than 10 school days".
  2. The term "out of school suspension" means "no service". The draft regulations in §300.520(a)(1) added the phrase "including a suspension without the provision of educational services" to the statute language (§615(k)(1)(A)(i)). We believe that this phrase should be removed because it implies that there are two types of suspension: one with services and one without services. Consistently use the term, "out of school suspension" through out the document.
  3. The term, "participate in the general curriculum", found in the IEP and Discipline sections of the Draft Regulations is vague. We believe that the term "receive instruction in the content of the general curriculum" would be a more precise term. For example, although the statute ( §615(k)(3)(B)(i)) and the Draft Regulations in §300.522(b)(1) read the same, we believe the term, "receive instruction in the content of the general curriculum", reflects the intent of the statute.
  4. In the Discipline section, we recommend that the terms "functional behavioral assessment" and "behavioral intervention plan" be used consistently throughout the document. For example, see §300.520(b)(1). We recommend changing the phrase "assessment plan" to "behavioral intervention plan". Although the statute ( §615(k)(1)(B)(i)) and the draft regulations read the same, we believe using several terms interchangeably is confusing, and the phrase "behavioral intervention plan" reflects the intent of the statute.
  5. In §300.522(b)(2), we recommend replacing the phrase "so that it does not recur" with "so that the behavior is less likely to recur". Although the statute (§615(k)(3)(B)(ii)) and the draft regulations read the same, we believe the phrase "so that the behavior is less likely to recur" reflects the intent of the statute. Further, we believe that it is unreasonable to expect a school district to have total control over any child's behavior.

5. State Assessment

  1. In §300.138, the Note reads "alternative assessment" this term should read "alternate assessment".

6. Procedural Safeguards and Parent Rights

  1. The requirements relating to "native language" should be consistent. We recommend adding the text, "unless it is clearly not feasible to do so" to all sections referencing parents' or student's native language, e.g., §300.500(b)(1)(i) and §300.501(b)(5).
  2. We recommend that §300.502(b), be re-worded to read:

"Parent right to evaluation at public expense. A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency [and notifies the agency in writing (or orally if the parent is illiterate in English or has a disability that prevents a written statement) of that disagreement]. If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either initiate a hearing under §300.507 to show that its evaluation is appropriate, or insure an independent educational evaluation [which meets agency criteria] is provided at public expense. [If a parent seeks public funding for an independent educational evaluation, the public agency is responsible for providing the public funding] unless the agency demonstrates in a hearing under §300.507 that the evaluation obtained by the parent did not meet agency criteria. [Note 1: If a parent requests an independent educational evaluation at public expense, there is no requirement under Part B of the Act that the parent specify areas of disagreement with the public agency's evaluation as a prior condition to obtaining the independent educational evaluation. Thus, unless a public agency chooses to initiate a due process hearing in accordance with paragraph (b) of this section, the agency must respond to the parent's request by insuring an independent educational evaluation is provided at public expense in a timely manner. A public agency may not impose conditions on obtaining an independent educational evaluation, other than the agency criteria described in paragraph (e) of this section.] If the public agency initiates a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense."

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