The Individuals with Disabilities Education Act: Final Part B Regulations

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The Individuals with Disabilities Education Act (IDEA) provides federal funding for the
education of children with disabilities and requires, as a condition for the receipt of such funds,
the provision of a free appropriate public education (FAPE). The statute also contains detailed due
process provisions to ensure the provision of FAPE. On December 1, 2008, the Department of
Education (ED) issued a final regulation to “clarify and strengthen current regulations”
promulgated under the Individuals with Disabilities Education Act. The areas covered by the
regulation include (1) parental revocation of consent after consenting to the initial provision of
services; (2) a state’s or local educational agency’s (LEA’s) obligation to make positive efforts to
employ qualified individuals with disabilities; (3) representation of parents by non-attorneys in
due process hearings; (4) state monitoring, technical assistance, and enforcement of the Part B
program; and (5) the allocation of funds, under Sections 611 and 619 of the act, to LEAs that are
not serving any children with disabilities. The regulations take effect on December 31, 2008. This
report will briefly discuss the issues raised by these changes.

Introduc tion ..................................................................................................................................... 1
Parental Revocation of Consent......................................................................................................1
Employment of Qualified Individuals with Disabilities..................................................................3
Representation by Non-Attorneys in Due Process Hearings...........................................................3
State Monitoring, Technical Assistance, and Enforcement.............................................................4
The Allocation of Funds to LEAs That Are Not Serving Any Children with Disabilities...............5
Author Contact Information............................................................................................................6

The Individuals with Disabilities Education Act (IDEA)¹ provides federal funding for the
education of children with disabilities and requires, as a condition for the receipt of such funds,
the provision of a free appropriate public education (FAPE). The statute also contains detailed due
process provisions to ensure the provision of FAPE. On December 1, 2008, the Department of
Education (ED) issued a final regulation to “clarify and strengthen current regulations” ²
promulgated under the Individuals with Disabilities Education Act. The areas covered by the
regulation include (1) parental revocation of consent after consenting to the initial provision of
services; (2) a state’s or local educational agency’s (LEA’s) obligation to make positive efforts to
employ qualified individuals with disabilities; (3) representation of parents by non-attorneys in
due process hearings; (4) state monitoring, technical assistance, and enforcement of the Part B
program; and (5) the allocation of funds, under Sections 611 and 619 of the act, to LEAs that are
not serving any children with disabilities. The regulations take effect on December 31, 2008. This ³
report will briefly discuss the issues raised by these changes.

IDEA currently contains statutory provisions requiring that parental consent be obtained prior to ⁴
providing special education or related services to a child with a disability. However, the statute
does not specifically address the issue of what responsibilities the LEA has when a child has been
receiving special education services and a parent wishes to revoke consent for such services.
Previously, ED had interpreted the statute and regulations to prohibit the unilateral withdrawal of ⁵
a child from special education in most circumstances.
The new regulations reverse this interpretation to allow parents to unilaterally withdraw their ⁶⁷
child from the receipt of special education services, but require that the revocation be in writing.
The Department described the rationale for the new provision as a continuation of the parents’
right to consent to services. “Allowing parents to revoke consent for the continued provision of
special education and related services at any time is consistent with the IDEA’s emphasis on the
role of parents in protecting their child’s rights and the Department’s goal of enhancing parent ⁸
involvement and choice in their child’s education.” The regulations do not allow a LEA to use
mediation or due process procedures to override a parent’s decision to refuse to consent to further
¹
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services.⁹ Under the regulations, the LEA will not be considered in violation of the FAPE
requirement if the child was not provided with special education or related services because of the ¹⁰
parent’s revocation of consent. In addition, the regulations specifically provide that if the
parents revoke consent, the LEA is not required to amend the child’s records to remove references ¹¹
to the child’s receipt of special education services. ED described the rationale for not requiring
changes in the child’s records by observing that “[a] parent’s revocation of consent is not ¹²
retroactive.... ”
The new regulations allowing for parental revocation of consent for IDEA services have generally ¹³
been supported by parents’ groups. One parent advocate has observed that allowing parental
revocation of consent may “prompt districts to heed parents’ requests for inclusiveness in the face ¹⁴
of pressures to pull children out.” However, other commentators have seen the new approach as ¹⁵
“undermining the team approach to decision-making.” In addition, a parent’s revocation of
consent for special education may affect how the child is included for accountability purposes
under the No Child Left Behind Act (NCLBA). ED addressed this issue in its comments on the
regulations noting that a state may include a child whose parents revoke consent for special
education in the special education subgroup of purposes of calculating the Annual Yearly Progress ¹⁶
(AYP) for two years following parental revocation of consent. However, although ED does not
expect the revision to affect AYP under the NCLBA, one commentator has argued that there may
be more of an effect than expected since if a student needed special education services, a student’s ¹⁷
scores may be weaker on state tests without those services.
The regulations allowing parental revocation of consent for IDEA services also create some
uncertainties regarding the child’s coverage under Section 504 of the Rehabilitation Act and the
Americans with Disabilities Act (ADA). Several federal statutes, notably the Individuals with ¹⁸
Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with ¹⁹
Disabilities Act (ADA), address the rights of individuals with disabilities to education. Some
children who do not receive special education services under IDEA may receive them under ²⁰
Section 504 and the ADA. Several commenters on the regulations raised issues regarding
whether Section 504 and ADA protections would continue to apply to a student when a parent
revokes consent for IDEA services. Commenters also noted that ED had previously stated that,
under Section 504, children with disabilities may not be disciplined for behavior that is a
manifestation of their disabilities if that disciplinary action constitutes a change of placement, and
⁹
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asked how that interpretation affects students whose parents have revoked consent for IDEA
services. The Department did not provide guidance on these issues, stating only that “[t]hese final
regulations implement provisions of the IDEA only. They do not attempt to address any overlap ²¹
between the protections and requirements of the IDEA, and those of Section 504 and the ADA.”

The statutory language of IDEA abrogates state sovereign immunity and requires that the
Secretary of Education ensure that each recipient of assistance under IDEA make positive efforts ²²
to employ, and advance in employment, qualified individuals with disabilities. The new
regulations amend the regulatory section on sovereign immunity to add a new section requiring
that recipients of assistance under IDEA must “make positive efforts to employ, and advance in ²³
employment, qualified individuals with disabilities in programs assisted under Part B of IDEA.”

One of the changes in the regulations relates to the use of lay advocates. Currently, IDEA
provides that any party to a hearing under Part B of IDEA has “the right to be accompanied and
advised by counsel and by individuals with special knowledge or training with respect to the ²⁴
problems of children with disabilities.” However, neither the act nor previous regulations
addressed the issue of whether individuals with special knowledge, but who are not attorneys,
may represent parties at due process hearings. In a 1981 letter from Theodore Sky, acting general
counsel of the Department of Education, to the Honorable Frank B. Brouillet, the Department had
previously interpreted Section 615(h) of the act and implementing regulations as allowing both ²⁵
attorneys and non-attorneys to perform the same functions at due process hearings. However,
ED specifically rejected this previous interpretation.
In 2000, a decision by the Delaware Supreme Court in In the Matter of Arons²⁶ held that a lay
advocate who represented families of children with disabilities in due process hearings had
engaged in the unauthorized practice of law. A 2006 survey found that 10 states, like Delaware,
prohibit lay advocates from representing parents, 12 states permit lay advocates, 21 states have no ²⁷
official policy, and 8 states leave the matter to the hearing officer. This survey also noted a
shortage of “readily affordable attorneys” to represent parents, and that the “availability of
²¹
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specialized lay advocates has not been nearly sufficient to close the gap.”²⁸ The issue regarding
representation by lay advocates had prompted attempts to add statutory language authorizing lay
advocates during the last IDEA reauthorization (culminating in P.L. 108-446), but language in the ^th²⁹
House bill (H.R. 1350, 108 Congress) was deleted in conference. The regulations change the
previous interpretation by ED which allowed the use of lay advocates at due process hearings.
The regulations allow the right to be accompanied and advised by counsel and by individuals
with special knowledge or training with respect to the problems of children with disabilities, but
add an exception stating that “whether parents have the right to be represented by non-attorneys ³⁰
at due process hearings is determined under State law.” The Department stated that “[g]iven that
the Act is silent regarding the representational role of non-attorneys in IDEA due process
hearings, the issue of whether non-attorneys may ‘represent’ parties to a due process hearing is a ³¹
matter that is left, by the statute, to each State to decide.”
Commenters on the regulations argued that the rule on non-attorney advocates “would negatively
affect future cases as parents unable to afford attorneys’ fees, or unable to find an attorney
knowledgeable about special education law, will be faced with the choice of either representing ³²
themselves or foregoing a due process hearing.” School officials and parents’ groups have both ³³
predicted activity in the states if the proposed rule becomes final. The issue may come up at the ³⁴
federal level again when Congress begins the reauthorization process for IDEA.

Section 616 of IDEA³⁵ provides for federal and state monitoring and enforcement of state
implementation of Part B of IDEA. The new regulations clarify that a state must make
determinations annually about the performance of each LEA in the state. The specific ³⁶
enforcement mechanisms that a state must use are also identified. The regulations also require
that LEA noncompliance be corrected “as soon as possible, and in no case later than one year ³⁷
after the state’s identification of the noncompliance.”
Section 616(b)(2)(C)(ii)(I) of IDEA requires a state to report annually to the public on the
performance of each LEA and to make the state’s performance plan available through public
²⁸
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means, including posting on the website of the state educational agency.³⁸ However, IDEA does
not specify when the state must provide this report. The proposed regulations would have
required this public report “no later than 60 days following the State’s submission of its annual ³⁹
performance report to the Secretary.... ” Several commenters requested that this public reporting
timeline be changed. ED agreed “with the commenters who suggested that an extended timeline
would allow for more accurate analysis of LEA data, thereby improving the quality of
information reported to the public, and ultimately contributing to improved outcomes for children ⁴⁰
with disabilities and their families.” Therefore, ED revised the proposed regulations to require
the report “as soon as practicable but no later than 120 days following the State’s submission of ⁴¹
its annual performance report to the Secretary.... ”
In addition, although IDEA requires the posting of the state’s performance plan, it does not
specify whether other materials, such as the annual report on each LEA must also be made
available. The new regulations require the state’s performance plan, the state’s annual
performance report (APR), and the state’s annual reports on the performance of each LEA to be ⁴²
made available through public means.
Section 616(e)(7) of IDEA requires states that have received a determination from the Secretary ⁴³
that the state needs intervention to make such information available to the public. However, the
statute does not specify when this information is to be made available. The new regulations
clarify the circumstances under which public notice is required by requiring public notice
“whenever a State receives notice that the Secretary is proposing to take or is taking an ⁴⁴
enforcement action.... ”

IDEA currently contains statutory provisions requiring states to distribute IDEA Part B funds not
reserved for state activities to local education agencies (LEAs), including public charter schools ⁴⁶
that operate as LEAs. States first allocate a base amount to each LEA based on its FY1999 grant
amount. Then, 85% of the remainder is allocated based on public and private school enrollment
within the LEA compared to all such enrollment in the state and 15% of the remainder is based on
the number of children living in poverty compared to the number in all LEAs.
³⁸
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The Department of Education’s (ED) Office of Inspector General (OIG) found that neither that
statute nor the IDEA regulations addresses whether a state is required to allocate funds to a
charter school in its first year of operation if the school has no students with disabilities ⁴⁷
enrolled. The new regulations clarify that states are required to allocate some funds to LEAs,
including public charter schools that operate as LEAs, even if an LEA is not serving any children ⁴⁸
with disabilities. The rationale for this new rule is that allocating funds to all LEAs “will ensure
that LEAs have Part B funds available if they are needed to conduct child find activities [i.e,
identifying and evaluating children in need of special education] or to serve children with ⁴⁹
disabilities who subsequently enroll or are identified during the year.”
The OIG also found that neither the statute nor the IDEA regulations addresses whether a charter
school LEA that received a base payment of zero in its first year of operation because it was
serving no children with disabilities and subsequently provided special education to children with
disabilities is entitled to a base payment in subsequent years if it does enroll students with ⁵⁰
disabilities. The new regulations require that a base payment adjustment be made for these
LEAs, including a public charter school that operates as an LEA, for the fiscal year after the first ⁵¹
annual child count in which the LEA reports that it is serving any children with disabilities. The
state will be required to divide the base allocation for the LEAs that would have been responsible
for serving children with disabilities now being served by the new LEA, among the new LEA and
affected LEAs based on the relative numbers of children with disabilities currently provided ⁵²
special education by each of the LEAs. Finally, the regulations modify the procedures for the ⁵³
reallocation of LEA funds.
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