The Individuals with Disabilities Education Improvement Act ("IDEA 2004) was signed into law on December 3, 2004. It became fully effective on July 1, 2005.
IDEA 2004 includes far too many changes over the prior law passed in 1997, (which was simply referred to as "IDEA"), for us to describe all of them in detail here. A few of those changes are favorable to the rights of parents, in our opinion. Some are not.
But here is our personal list of the top ten changes in the new law that provides a good place to start:
- IEP no longer requires short-term goals and objectives. The requirement under IDEA for a statement of "benchmarks or short-term objectives" in the IEP has been eliminated for all students who are not subject to alternative testing. The requirement for a statement of "measurable annual goals" remains. (Section 614(d)(1)(A)(i)(II)).
- Transition planning now required only after age 16. Under IDEA, transition planning was required to be addressed initially after a child reached the age of 14, with stepped-up transition planning required after age 16. IDEA 2004 eliminates the requirement to begin transition planning before age 16. (Section (d)(1)(A)(i)(VIII)).
- IEP team members may be excused from attending IEP meeting, upon agreement. IDEA 2004 allows team members to be excused from IEP team meetings, if the parent and school agree, if: (1) the member's area of curriculum or service will not be discussed; or (2) even if it will be discussed, the member submits a written report to the parent and team in advance of the meeting. In addition, IEP, school and other meetings now can be convened by video or phone conference; they no longer need be held in person. (Section 614(d)(1)(C)).
- Annual IEP Team Meeting can be waived. Although IDEA 2004 retains the requirement for the IEP to be reviewed and amended annually, it allows for this review and amendment to occur without a meeting, but only if the parent and school agree. (Section 614(d)(3)(D)).
- Reevaluations limited to not more than once a year. IDEA did not specifically limit the frequency of reevaluations. IDEA 2004 specifies that they shall not be performed more often than once a year, unless both the school and parent agree otherwise. (Section 614(a)(2)(B)).
- Award of school attorney's fees and costs against parent or parent's attorney for "frivolous" lawsuits. For the first time, under IDEA 2004 a court may award attorney's fees and costs to a school district that is a prevailing party and (1) against the parent's attorney "who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or [who] continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (2) against the parent's attorney or the parent if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation." (Section 615(i)(3)(B)(i)).
- Specifies two-year limitations period on filing complaint. Under IDEA 2004, a parent seeking due process must request the hearing "within 2 years of the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint . . . ," or in such time as state law allows. This is new. Its implications are not totally clear at this time. But one possible effect may be to cut off compensatory education claims going back more than two years that previously have been permitted under federal case law in the Third Circuit, which includes Pennsylvania. (Section 615(f)(3)(C)). Whether it might have that effect in your particular case would depend on an analysis of all of the facts, and we therefore would encourage you to consult a special education lawyer.
- Requires resolution meeting after filing of due process complaint. IDEA 2004 gives the school the right and responsibility to convene a meeting within 15 days of receiving the parents' due process complaint to try to resolve the problem. The meeting must be held unless both the parent and the school agree to waive it. (Section 615(f)(1)(B)(i)).
- Eliminates requirement for parental consent to sped services. IDEA 2004 specifies that a parent need not agree to the provision of sped services for the child following the completion of the initial evaluation. (Section 614(a)(1)(d)(ii)).
- Emphasizes peer-reviewed reading and learning approaches. For instance, the special education, related services and aids specified in each child's IEP must be "based on peer-reviewed research to the extent practicable." The language that we have placed in italics may allow the schools some "wiggle room." But IDEA 2004 does appear to place increased emphasis on programs and approaches that research has shown to be effective. (Section 614(d)(1)(a)(i)).
So these are just some of the more important changes in IDEA 2004. Want to see more commentary and information? One source we like can be found at the Wrightslaw site: www.wrightslaw.com.
Want to see a side-by-side comparison of IDEA '97 and IDEA 2004? Try the Copaa (Council of Parent Attorneys and Advocates) site: http://www.copaa.org/pdf/IDEA97-04COMP.pdf.
Have questions for us about changes in the law? Call us now at 610.696.5006 or email us now.
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