CEC Opposes New IDEA Regulations on Selected Issues

On December 1, 2008, the U.S. Department of Education published final regulations on selected provisions within the Individuals with Disabilities Act (IDEA) applicable to school aged children and youth that focus on: parental revocation of consent for special education services, representation by non-attorneys in due process hearings, and allocation of funds to school districts not serving students with disabilities. 

In July, CEC issued a detailed response to the U.S. Department of Education outlining areas of agreement and disagreement within the proposed regulations.  While CEC is pleased that the Department retained many of the CEC supported provisions in its final regulations, CEC remains concerned that many of the changes made are unnecessary at this time and will not provide any enhanced protections for children and their families that cold not be addressed under current Federal policy.  In addition, these changes are costly and burdensome. 

Final Regulations Opposed by CEC Include:

Parental Revocation of Consent for Special Education Services: The final IDEA regulations specify that a parent may revoke consent for special education and related services at any time and prohibits a public agency (school district) from using due process procedures (including mediation) to overturn a parent’s revocation of consent.  Furthermore, this regulations relieves the public agency of the responsibility to provide FAPE, conduct an IEP meeting or develop an IEP. 

CEC opposed this regulation because it believes that a school district’s responsibility to provide FAPE to an eligible child with a disability is central to IDEA.  If a school district believes a child continues to need special education and related services, these regulations should permit the school district to pursue a due process hearing or mediation to attempt to override a parent’s decision to revoke consent.

Additionally, CEC requested clarification in the following areas:

  • Parent’s responsibility to provide written notification of their decision to revoke consent for special education and related services for their child.  In response to CEC’s request, the Department clarified in its final regulations parental revocation of consent must be in writing and that once consent is revoked the school district must provide the parent with written prior notice.
  • How revocation of consent would impact eligibility with regard to discipline procedures; intersection with section 504 of the Rehabilitation Act of 1973.  In response to CEC’s request, the Department stated that the regulations to not attempt to address any overlap between protections and requirements of IDEA and section 505 and the Americans with Disabilities Act.
  • Provisions for determining the status of the child’s eligibility and previous IEP if, after revoking consent, the parent provides consent at a later time. In response to CEC’s request, the Department stated that a school district must treat requests for re-enrollment as a request for an initial evaluation, though depending on the data available, a new evaluation may not always be required.

Representation by Non-Attorneys in Due Process Hearings: The final IDEA regulations would require States to determine the extent to which either party in a due process hearing would have the right to be represented by non-attorneys in accordance with State law. The Department acknowledged that IDEA is silent regarding the representational role of non-attorneys in IDEA due process hearings and that the issue of whether non-attorneys may “represent” parties to a due process hearing is a matter that is left, by law, to each State to decide.

CEC opposed this regulation because CEC is not aware of any data to suggest that silence in the current regulations is creating a problem for parents or public agencies and recommended that this issue be revisited during the next reauthorization of IDEA. 

Allocation of Funds to Local Education Agencies (LEAs) that Are Not Serving Any Children with Disabilities:  The final IDEA regulations would distribute Part B funds to local education agencies, including public charter schools that operate as LEAs, even if they are not currently serving any children with disabilities.

CEC strongly opposed this regulation because it will result in taking already limited Federal funds from LEAs and public charter schools that are currently serving children with disabilities and give it to LEAs and public charter schools that are not currently serving any children with disabilities.

Final Regulations Supported by CEC Include:

Parental Consent:  CEC supported the regulations which states that if a parent revokes consent for their child’s receipt of special education and related services after the child has been receiving these services, the public agency is not required to amend the child’s education records to remove any references to the child’s receipt of special education because of the revocation of consent.

States’ Sovereign Immunity and Positive Efforts to Employ and Advance Qualified Individuals with Disabilities: CEC supported the regulations which requires each recipient of assistance under IDEA Part B to make positive efforts to employ , and advance in employment, qualified individuals with disabilities in programs assisted under Part B.

State Monitoring, Technical Assistance, and Enforcement: CEC supported these regulatory changes because they are based on either IDEA 2004 statutory provisions or longstanding policy by the Department of Education. 

Other examples of provisions contained in the final regulations include:

Parental Consent: Clarifying the effect of a parent’s revocation of consent on the context of his or her child’s education record including a discussion of parental rights under the confidentiality of information requirements.

Timeframe for Public Reporting About LEA Performance: The timeline for a state’s public reporting on the performance of LEAs was changed from 60 to 120 days from submission of annual performance report.

These regulations will require multiple changes to current state and LEA policies and procedures. These regulations take effect on December 31, 2008.

CEC Issues Response to Proposed Changes to IDEA.