CENTER FOR LAW AND EDUCATION

Reply to: Main Office:

515 Washington Street, Third Floor 1875 Connecticut Ave., NW

Boston, Massachusetts 02111 Suite 510

Phone: 617/451-0855 Washington, D.C. 20009

Fax: 617/451-0857 Phone: 202/986-3000

Fax: 202/986-6648

Overview:

Education Rights of Children With Disabilities

Under The

Individuals With Disabilities Education Act

And

Section 504 of the Rehabilitation Act of 1973

Eileen L. Ordover

Revised May, 1994

Modified December, 1998 to reflect the IDEA Amendments of 1997

Modified July, 1999 to reflect IDEA regulations issued March, 1999^*

I. Statutory Framework

A. The Individuals with Disabilities Education Act or "IDEA"

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq., originally enacts as Public Law 94-142, is the preeminent federal statute addressing the education rights of children and youth with disabilities.¹ IDEA provides federal funds to assist state and local education agencies in meeting the needs of students with disabilities. In exchange, states and local school systems must abide by the Act’s substantive and procedural mandates.

No state or local education agency can receive such funding unless the state has demonstrated to the satisfaction of the U.S. Department of Education that it has in effect policies and procedures to ensure that the state’s education system meets a number of conditions. These include ensuring that each child with a disability within the state is provided with a free public education specifically tailored to meet his or her

individual needs. Also required are procedural due process safeguards in evaluation, placement decisions, hearings, and appeals, as well as safeguards for student records related to this process. In addition, IDEA explicitly addresses school discipline and students with disabilities.²

IDEA is more than a funding statute. For state and local education agencies, it is both a source of funds and a source of obligations. Moreover, the Act guarantees parents and guardians of children with disabilities the right to secure the provision of a free appropriate public education through both administrative and judicial remedies.

B. Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973³ is a civil rights statute designed to prohibit discrimination on the basis of disability in federally-funded activities. Section 504 as amended provides in relevant part that:

"No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefit of, or be subject to discrimination under any program or activity receiving federal financial assistance..."

29 U.S.C. §794(a). Because virtually all local schools and school districts receive federal funds of some sort, §504 provides an additional tool for assuring that school-age children with disabilities receive the education to which they are entitled.

The U.S. Department of Education regulations implementing §504 in the preschool, elementary and secondary education context operate in two basic ways: (1) by generally prohibiting certain practices as discriminatory ones, and (2) by compelling school districts and other recipients to take certain affirmative steps to ensure that students with disabilities receive an appropriate public education.⁴ As discussed in further detail below, the latter include requirements for identification, provision of free appropriate education, evaluation and placement, procedural safeguards, and non-academic services.

II. Eligibility, Identification and Program Responsibility

A. Population Protected

1. IDEA

For purposes of IDEA, an eligible “child with a disability” is a child

"with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance..., orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities...who, by reason thereof, needs special education and related services."⁵

The regulations implementing IDEA define each of these disabilities in further detail.⁶

At a the discretion of the state and local education agency, the term "child with a disability" may also include 3 through 9 year olds who are "(i) experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in...physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) who, by reason thereof need special education and related services."⁷ States have the option of adopting “developmental delay” as an eligibility category. However, even if a state does so, individual school systems within the state do not have to use it unless they so choose. However, a local school system may not use the “developmental delay” category unless the state has adopted and defined this category.⁸

IDEA does not allow for the possibility that some children are too severely disabled to be served: states and school systems may not refuse to provide educational services on the ground that a child is too severely disabled to benefit from them.⁹

2. §504

For purposes of §504, a protected "individual with a disability" is one

"who i) has a physical or mental impairment which substantially limits one or more major life activities; ii) has a record of such impairment; or iii) is regarded as having such an impairment."¹⁰

Virtually all children who meet IDEA eligibility criteria will fall within this definition and so be protected by §504 as well. Like IDEA, the §504 regulations entitle children to a free appropriate public education, "regardless of the nature or severity of the person's handicap."¹¹

The §504 definition of an "individual with a disability," however, is broader than the operative IDEA definition. A child who does not fall within the IDEA definition of a "child with a disability" may nevertheless be an "individual with a disability" protected by §504 and its implementing regulations.¹²

Section 504 protects only "otherwise qualified" individuals from disability-based discrimination. For purposes of public preschool, elementary and secondary school services, an "individual with handicaps" is "otherwise qualified," and thus protected by §504, if he or she is: (1) of any age during which nonhandicapped persons are provided such services, (2) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (3) someone IDEA requires the state to provide with a free appropriate education.¹³

B. Age Ranges

States which accept federal monies under IDEA are required to serve all children with disabilities ages 3 through 21 years of age unless, with respect to the age group 3 through 5 and 18 through 21, this requirement is inconsistent with a state law or practice or a court order respecting the provision of public education to children or youth in these age ranges.¹⁴ However, a 1997 amendment to IDEA allows states to refuse to serve a limited subgroup of the youth aged 18 through 21 who are incarcerated in adult correctional facilities.¹⁵

C. Identification of Students with Disabilities

Both IDEA and the regulations implementing §504 impose obligations upon state education agencies and local school districts to identify, locate, and evaluate children with disabilities.¹⁶

D.. Local and State Program Responsibility ¹⁷

Under IDEA, local school districts are responsible for providing and maintaining appropriate special education programs and placements for children with disabilities in accordance with standards established by the state board of education. In general, a local school district may meet this responsibility in a variety of ways, including by providing the necessary programs and related services itself; by arranging for the provision of programs and services by cooperative agreement or contract with one or more other local school districts, or with a county or joint vocational school district; or by arranging through cooperative agreement or contract with a private agency or school.

The state educational agency is ultimately responsible for ensuring that all children with disabilities receive a free appropriate public education that meets IDEA requirements, and that all local school systems, other public agencies in the state involved in educating children, and private schools accepting publicly-placed students comply with the Act.¹⁸ This obligation includes (a) ensuring that all educational programs for children with disabilities, including those of local educational agencies and other state agencies, meet the requirements of federal law; (b) monitoring and evaluating IEPs and programs and providing written complaint procedures; (c) correcting deficiencies in program operations that are identified through monitoring and evaluation; (d) insuring proper disbursement of and accounting for federal funds paid to the state under the IDEA; and (e) making annual reports on children served.¹⁹ In addition, where a local school system is unable to establish and maintain (or contract for) programs that meet IDEA requirements, the state educational agency must itself directly provide special education and related services to affected children.²⁰

III. The Content and Quality of Education

A. "Free Appropriate Public Education"

IDEA requires each state to have in effect policies and procedures to ensure that all children with disabilities in the state have available to them a "free appropriate public education."²¹ The §504 regulations likewise require public school systems to provide children with disabilities a free appropriate public education.²²

1. IDEA

Under IDEA, "free appropriate public education" means "special education and related services" that --

• are provided at public expense, under public supervision, and without charge;

• meet the standards of the state educational agency;

• include an appropriate preschool, elementary, or secondary school education in the state involved; and

• are provided in conformity with an Individualized Education Program.²³

"Special education," in turn, means "...specially designed instruction...to meet the unique needs of a child with a disability....”²⁴ “Specially designed instruction” means “adapting...the content, methodology, or delivery of instruction...[t]o address the unique needs of the child that result from...disability...and..[t]o ensure access...to the general curriculum, so that he or she can meet the educational standards...that apply to all children.”²⁵

Note that under these definitions, "special education" is a kind of instruction, not a place: once instruction for an individual child has been tailored as required to address his or her needs, it may, again depending upon the child's needs, be provided in a variety of settings, with consideration first being given to a regular education classroom. Thus a school district cannot fulfill its obligation to provide "special education" by, for example, automatically placing a child with a particular disability in a particular classroom or program designated to serve that group.²⁶ In addition to circumventing IDEA requirements, such conduct constitutes illegal discrimination under §504.²⁷

For purposes of IDEA, "related services" are defined as:

"...transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children."²⁸

This definition comes from the IDEA statute. The IDEA regulations give “parent counseling and training” as an additional example of a related service that may be required.²⁹

The lists of related services in the statute and regulations offer examples only. They are not meant to be exhaustive. If a child needs a particular service in order to benefit from special education and the service is a developmental, supportive or corrective one, it is also a "related" one and should be provided regardless of whether it is expressly listed in IDEA or its regulations.³⁰ For some children, for example, a part or full time aide might constitute a required related service, as might certain equipment or assistive technology, such as a computer or tape recorder.³¹

2. §504

The free appropriate public education required by §504 may consist of "regular or special education and related aids and services."³² The §504 regulations do not define these terms, but do provide that special education and related services developed and delivered in accordance with IDEA dictates will ordinarily satisfy the §504 requirement as well.³³

3. "Free" Means Free

3. " \l 3

5. Whether due pursuant to IDEA or §504, all special education and related services must be provided at public expense, without cost to child, parent or guardian.³⁴ Parents cannot be required to use their child's social security or SSI benefits to fund services owed them under these statutes.³⁵

6.

7. School districts may not require a parent to use private health insurance to pay for or defray the cost of any services necessary to provide a child with a free appropriate public education under IDEA; schools may access private insurance only with the parent’s informed consent.³⁶ Each time a school would like to use a family’s private insurance, it must obtain informed consent and explain to the child’s parents that they may refuse to allow their insurance to be used, and that any such refusal will not relieve the school of its duty to ensure that the child receives all necessary services at no cost to the family.³⁷

8.

9. The rules under IDEA regarding the use of insurance are different for children who have public insurance, such as Medicaid. They do not expressly require schools to obtain informed consent from a parent before tapping a child’s Medicaid or other public insurance.³⁸ However, before doing so, the school system must ascertain that tapping the child’s public health benefits will not

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• decrease available lifetime coverage or any other benefit,

• result in the family paying for services that the child needs outside of school, and that otherwise would be covered by the public insurance program,

• increase premiums or lead to discontinuation of the insurance; or

• risk loss of eligibility for home and community-based waivers, based on total health-related expenditures.³⁹

School personnel acting without the participation of the child’s parent would lack the information necessary to ensure that none of these bad consequences will ensue. Thus, to comply with these provisions, it would seem that before tapping public insurance, school officials, at a minimum, must inform the parent of the school’s interest in utilizing public insurance benefits; explain exactly what it is that they propose to do, as well as the above-listed constraints on their freedom to do so; seek from the parent (and other relevant sources) the information necessary to make the required determinations; solicit any parental concerns; and give parents a meaningful opportunity to express any such concerns.

School officials may not require parents to sign up for Medicaid or other public insurance as a condition for their child receiving services under IDEA.⁴⁰ Nor may they require parents whose children are enrolled in public insurance programs to incur any out-of-pocket expenses, such as paying a deductible or co-payment.⁴¹

Whether insurance is public or private, parents and students who suffer financial loss when insurance is used to pay for what should have been a free appropriate public education should be able to recover their losses from the responsible school system.⁴² Advocates should also note that while the above specific provisions regarding public and private insurance use come from the IDEA regulations, the U.S. Department of Education/Office for Civil Rights has long held that schools may not require parents to use health insurance to help pay for services due under §504 if doing so poses a risk of financial loss to parent or child.⁴³

B. Right to be Educated in the General Curriculum

Both IDEA and §504 have long required that children with disabilities be given full opportunity to participate and meaningful opportunities to learn in the “regular,” or “general,” curriculum -- regardless of the kind of setting (placement) in which they are receiving their special education and related services. This mandate flows from statutory and regulatory provisions dating back 20 years and more, including the IDEA’s definition of FAPE (as noted above, special education and related services that, among other things, provide an appropriate elementary or secondary education in the state involved and meet state standards); the requirement, found in both IDEA and the §504 regulations (and further discussed below), that children with disabilities receive their education in regular education classes to the maximum extent feasible in light of their individual needs; and the §504 prohibition on discrimination in general, as well as (as noted below) the §504 regulations mandating comparable benefits and services for students with disabilities, including equally effective programs and services.

The right to full opportunity to participate and meaningful opportunities to learn in the general curriculum is also reflected in numerous provisions added to IDEA in 1997. Pertinent additions to the 1997 law include those addressing evaluations, Individualized Education Program (“IEP”) content, IEP team composition, and assessment. For example:

• Evaluations must gather information about strategies and interventions that the child needs to participate and progress in the general curriculum.⁴⁴

• IEPs must describe how the child's disability affects participation and progress in the general curriculum. They must also contain goals and objectives geared towards enabling them to do so. IEPs are to include special education, related services, supplementary aids and services and supports for school personnel that will allow the student to progress in the general education curriculum. IEPs must be reviewed periodically and revised to address any lack of expected progress in the general curriculum.⁴⁵

III. IEP teams must include someone knowledgeable about the general education curriculum, as well as one of child's regular education teachers.⁴⁶

IV. Children with disabilities must be included in general state and district-wide assessments, with appropriate accommodations where necessary.⁴⁷

V. States must set goals for the performance of students with disabilities. These goals must be consistent with any goals and standards the State has set for students in general.⁴⁸

C. Effectiveness of the Program in Meeting the Individual's Need

1. IDEA

The Supreme Court held in 1982, in Board of Education of the Hendrick Hudson Central School District v. Rowley, that a package of special education and related services is "appropriate" within the meaning of IDEA if (1) it includes an appropriate preschool, elementary or high school education in the state involved; (2) the child’s total education meets the standards of the state education agency; (3) the student’s Individualized Education Program (“IEP”) was developed in accordance with the procedures set forth in the statute (including those governing resolution of disputes between parents and school systems), and (3) it is "reasonably calculated to enable the child to receive educational benefits."⁴⁹

Subsequent federal court decisions have made it clear that trivial or de minimis benefit does not meet this standard; rather, the IEP must be one "under which educational progress,”⁵⁰ “significant learning,” and “meaningful benefit” are likely, in light of a child’s potential.⁵¹ As the IDEA Amendments of 1997 make clear, this should include meaningful, significant progress in learning what all other students are expected to know and be able to do, as reflected in the general curriculum.⁵²

Rowley does not prohibit states from setting higher quality and benefit standards, and a number of states do so by statute, regulation, judicial decision, or state constitutional provision.⁵³ Because special education and related services must meet the standards of the state educational agency, where a higher state quality standard exists, it is automatically "incorporated" into IDEA.⁵⁴ In these states an education meeting the higher state quality standard is an IDEA right, and IDEA compliance may thus require IEPs designed to maximize potential or otherwise exceed the Rowley benefit standard.

2. §504

Because §504 is an antidiscrimination statute, the regulations address educational quality by reference to the quality of services provided to non-disabled students. For purposes of §504,

"...an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based on adherence to procedures that satisfy the requirements of [the §504 regulations regarding evaluations, least restrictive environment and procedural safeguards]."

34 C.F.R. §104.33.

The regulations also provide that it is illegal for schools to afford a disabled student an opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded others, or to provide a disabled student with an aid, benefit or service that is not as effective as that provided to others.⁵⁵ In addition, any facility that is identifiable as being for students with disabilities must be comparable--physically as well as in regard to the quality of services and activities conducted there--to facilities for non-disabled students.⁵⁶

D. Broad Meaning of Education

The concept of education under IDEA is broad, encompassing, for example, a child's self-help, social, emotional and behavior needs as well as his or her academic ones.⁵⁷ IDEA thus requires specially designed instruction and related services aimed at the full range of disability-related education needs, both academic and non-. Consistent with the broad notion of education encompassed by the statute, the purpose of addressing non-academic needs (including, for example, behavior manifestations) under IDEA is to enable children with disabilities to function effectively in all settings, not simply in school.⁵⁸

E. Least Restrictive Environment/Maximum Appropriate Integration

E. " \l 2

G. Both IDEA and §504 guarantee children with disabilities the right to participate in regular classroom and in extra-curricular activities with non-disabled students to the maximum extent appropriate in view of their individual needs, with the use of supplementary aids and services and/or modification of the regular education curriculum if necessary. Specifically, IDEA requires states to ensure that

H.

“[t]o the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”⁵⁹

Significantly, the new IDEA regulations stress that a child with a disability may not be excluded from age-appropriate regular classrooms simply because he or she needs modifications in the general curriculum.⁶⁰

The right to maximum feasible integration applies to the full range of academic program options, nonacademic services, extracurricular activities, and physical education.⁶¹ Rights against exclusion from regular education classes have also been recognized under the U.S. Constitution.⁶²

A school district proposing to exclude a child from the regular education setting bears the burden of proving that such an exclusion--whether total or partial--is justifiable in view of these requirements.⁶³ IDEA presumes that the first placement option considered for each child by his or her placement team is the regular education classroom in the school the child would attend if not a child with a disability, with appropriate supplementary aids and services.⁶⁴ The statute "does not permit states to make mere token gestures to accommodate handicapped students [in regular education classrooms]; its requirement for modifying and supplementing regular education is broad."⁶⁵

"[T]he decision as to whether any particular child should be educated in a regular classroom setting...is necessarily an inquiry into the needs and abilities of one child, and does not extend to a group or category of handicapped children..."⁶⁶ "[B]efore the school district may conclude that a handicapped child should be educated outside the regular classroom, it must consider...the whole range of supplemental aids and services...for which it is obligated under [IDEA] and the regulations promulgated thereunder to make provision."⁶⁷ Only when the child's education cannot be achieved satisfactorily in the regular education class room with one or more of such supplementary aids and services may s/he be placed in another setting; consideration of these issues must occur "prior to and during the development of the IEP."⁶⁸

Note, however, that under IDEA, the IEP team of a child convicted of a crime as an adult under state law, and incarcerated in an adult prison, may modify his or her placement notwithstanding these requirements, if the state has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.⁶⁹

Least restrictive environment/maximum feasible integration rights under §504 are clarified by regulation. For instance, 34 C.F.R. §104.34(a) states that students with disabilities shall be educated with non-disabled peers "to the maximum extent appropriate" and shall be placed in the regular program "unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily."⁷⁰

In addition to these specific provisions concerning elementary and secondary education, the §504 regulations state more generally that

"(1) A recipient...may not...on the basis of handicap:

* * *

(iv) Provide different or separate aid, benefits, or service to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others; *** (3) Despite the existence of separate or different programs or activities provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such programs or activities that are not separate or different."

34 C.F.R. §104.4(b).

One of the earliest judicial decisions interpreting these aspects of IDEA and §504 emphasized the enormous importance of rights against exclusion. In Hairston v. Drosick,⁷¹ the court found:

"It is an educational fact that the maximum benefits to a child are received by placement in as normal an environment as possible. ...A child has to interact in a social way with its peers and denial of this opportunity during his minor years imposes added lifetime burdens upon a handicapped individual."⁷²

The court went on to hold that exclusion of a child with disabilities from a regular classroom situation, except as a last resort in situations in which educational needs cannot be met within that classroom, violates both §504 and the IDEA.

The least restrictive environment/maximum appropriate integration requirement also protects children whose needs cannot be met in regular education classes from overly restrictive and isolated placements. Thus, for example, IDEA and §504 integration requirements would be violated if a child who could be educated appropriately in a special education classroom within a "regular" education elementary school were nonetheless placed in a segregated school for children with disabilities.⁷³

F. Full Educational Opportunity

In addition to specific requirements regarding the provision of a free appropriate public education, including participation in the general curriculum and placement in the least restrictive environment, IDEA and its regulations require states to provide full educational opportunity to all children with disabilities.⁷⁴

Section 504, by the terms of the statute, forbids discrimination against students with disabilities. In addition, the regulations include the following among the types of discrimination which are prohibited:

"(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;

(iv) Provide different or separate aid, benefits or services to handicapped persons or to any class of handicapped persons unless...necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others...[or]

(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

***

(4) A recipient may not...utilize criteria or methods of administration, (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped person, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State.

(5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections (i) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives or benefits form Federal financial assistance or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons."⁷⁵

These regulations underscore the right of children with disabilities to meaningful opportunities to participate in the general curriculum, and to learn what all other children are expected to learn. In addition to exclusion from the general curriculum, they may also be used to challenge a variety of other kinds of discriminatory practices.

In addition, both the IDEA and §504 regulations set forth specific requirements regarding equal opportunity for participation in a variety of school programs (such as art, music, industrial arts, consumer and homemaking education, and vocational education), nonacademic services, and physical education.⁷⁶

IV. Evaluations and Evaluation Safeguards

E. Evaluations and Reevaluations Required

Under both IDEA and the §504 regulations, all children with disabilities must receive full and individualized evaluations of their needs.⁷⁷ Such an evaluation must be conducted before any action is taken with respect to initial provision of special education services.⁷⁸

IDEA requires that a child be reevaluated whenever conditions so warrant, or if the child’s parent or teacher requests a reevaluation; at a minimum, a reevaluation must be conducted at least once every three years.⁷⁹ In addition, a school system must conduct a reevaluation before determining that a child no longer needs special education and related services.⁸⁰ The §504 regulations require "periodic reevaluation of students who have been provided special education and related services," as well as evaluations prior to any "significant change in placement."⁸¹

F. Notice and Informed Consent for Evaluation

Both IDEA and §504 require that prior written notice be provided to parents or guardian whenever the school proposes to initiate or change, or refuses to initiate or change, the identification or evaluation (including reevaluation) of the child.⁸² IDEA includes requirements designed to insure that the notice contains a full explanation of the proposed actions, informs parents that procedural safeguards are available to them, is written in understandable language, and is provided in the parent's native language or other primary mode of communication.⁸³

Further, under IDEA informed parental consent must be obtained before conducting an evaluation or re-evaluation.⁸⁴ Parental consent need not be obtained for a reevaluation, however, if the school system can demonstrate that it has “taken reasonable measures to obtain such consent, and the child’s parent has failed to respond.”⁸⁵ The term “informed” was added to the statute in 1997, and is not defined. However, its addition suggests that the standard of consent required prior to an evaluation or reevaluation has been heightened, strengthening the duty of school personnel to fully explain all relevant information and considerations to parents (including discussing risks and benefits, as well as potential consequences of giving or withholding consent) so that they are fully informed, to ensure that parents understand, and to ensure that any consent given is truly voluntary.⁸⁶

If parents refuse to consent to an evaluation or reevaluation, the school system may seek to pursue an evaluation by using the mediation or due process procedures generally available under IDEA to resolve disputes between parents and schools (see discussion below), unless doing so would be inconsistent with state law regarding parental consent.⁸⁷

C. Nature of the Evaluation

The evaluation is carried out by a multidisciplinary team. The purpose of the evaluation is twofold: first, to determine whether a child has a disability, and, second, to gather information about her educational needs and effective strategies for meeting them.⁸⁸ This includes gathering the information needed for designing the services and supports the child will need to learn in the “general” (regular) curriculum, in regular education classrooms.⁸⁹

The evaluation must assess the child in all areas related to the suspected disability(ies) including, where appropriate, various physical, emotional, perceptual, cognitive, behavioral, communicative, and other factors.⁹⁰ The evaluation must be comprehensive enough to identify all of the child’s special education and related services needs, regardless of whether or not they are commonly linked to his or her particular disability category.⁹¹

Decisions about whether a child has a disability, or about the kind of educational program he needs, cannot be based upon a single test or procedure; on the contrary, evaluations must use a variety of assessment tools tailored to assess specific areas of educational need, not just general "IQ."⁹² Additional requirements for evaluating children believed to have specific learning disabilities appear may be found in the IDEA regulations.⁹³

D. Valid, Unbiased Testing and Evaluation Methods

IDEA provides that tests and other evaluation materials used to assess a child must be selected and administered so as not to be racially or culturally discriminatory.⁹⁴ In addition, tests and evaluation materials must be provided and administered in the child’s native language or other mode of communication, unless it is clearly not feasible to do so.⁹⁵ Further, materials and procedures used to assess a child with limited English proficiency must be chosen and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring his or her English skills.⁹⁶

Tests and other materials used for the evaluation must have been validated for the specific purpose for which they are being used, and must be administered properly by trained and knowledgeable persons.⁹⁷ They must also be selected and used in a way which best ensures that the results for children with impaired manual, sensory or speaking skills actually reflect what the materials purport to measure, rather than merely reflecting the child's impairments.⁹⁸

D. Procedures for Evaluations Under IDEA

The IDEA Amendments of 1997 added new evaluation procedures to the law. Now, at the start of an initial evaluation (if appropriate), and of any reevaluation, a group of qualified professionals, the child’s parent, and the rest of the child’s IEP team review existing information about the child, including evaluations and information provided by the parent, current classroom-based assessments and observations, and the observations of teachers and related services providers.⁹⁹ On the basis of its review, combined with input from the child’s parents, this group then determines what additional information, “if any,” is needed to determine whether the child is or continues to have one of the disabilities that may trigger IDEA eligibility; whether he or she needs or continues to need special education and related services; the child’s present levels of performance and educational needs; what additions or changes in the child’s education services are needed to enable him or her to participate and progress in the general curriculum, and to meet the annual goals set out in the IEP.¹⁰⁰ The school system then must arrange for the assessments, tests or other procedures needed to obtain this additional information.¹⁰¹

If, as part of a re-evaluation, the group decides that no new data is needed, the school system must notify the parents of this decision, and the reasons for it. Parents nonetheless have the right to request a new assessment to determine whether the student continues to be a child with a disability, i.e. whether she has one of the disabilities covered by IDEA and needs specialized instruction and related services as a result. However, the school system need not conduct such an assessment unless the parents so request.¹⁰²

F. Interpretation and Use of Evaluation Results

Evaluation results will be used first to determine whether the child has (or continues to have) a disability and meets IDEA and/or §504 eligibility criteria. If so, they will then be used to design specialized instruction and support services, determine the child’s educational placement, and determine what kind of related services will be necessary.

School systems may not use any single test or evaluation tool--such as an IQ test--as the sole basis for determining whether a child has a disability and needs special education, or for determining what will constitute an appropriate educational program for him or her.¹⁰³ In addition, a child may not be deemed eligible for services under IDEA if the “determinant factor” for finding eligibility is lack of instruction in reading or math, or limited English proficiency.¹⁰⁴

In interpreting and using evaluation results, school systems must:

• draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior;¹⁰⁵

• ensure that information obtained from all of these sources is carefully documented and considered; and

• ensure that people knowledgeable about the meaning of the evaluation data participate in decisions regarding the child's educational program.¹⁰⁶

G. Independent Evaluations

Parents have the right under IDEA to obtain an independent educational evaluation of the child, when they disagree with an evaluation conducted or obtained by the school.¹⁰⁷ The independent evaluation will be at pubic expense unless the school initiates a hearing and demonstrates that its own evaluation was appropriate.¹⁰⁸

V. IEPs, Placement Decisions and Parent Participation

E. Content of Individualized Education Program

Once it is determined that a child has a disability and needs special education and related services, a written Individualized Education Program (IEP) must be developed.¹⁰⁹ Under IDEA, a school system is not providing a free appropriate public education if it is not following a properly developed IEP.¹¹⁰ Because in the past, contrary to legal requirements, IEPs were not generally being used as tools for enabling children with disabilities to learn what all children are expected to know and be able to do, IDEA now stresses aligning the IEP with the general curriculum.

The required IEP must always include:

• a statement of the child’s current level of educational performance, including how disability affects her progress in the general curriculum;

• measurable annual goals, with benchmarks or short-term objectives, addressing progress in the general curriculum and all other needs resulting from the child’s disability;

• an explanation of how the child’s progress towards the annual goals will be measured, and of how his parents will be regularly informed of his progress (including being informed of whether that progress is sufficient to achieve the goals by the end of the year);

• a statement of the special education, related services and supplementary aids and services to be provided to the child (or on his behalf), and the program modifications or supports for school personnel to be provided;¹¹¹

• an explanation of the extent, if any, to which the child will not receive her education in regular education classes;

• a statement of any individual modifications the child will need in the administration of state- or district-wide assessments of student achievement;¹¹² and

• the projected date for the beginning of the services, modifications, etc. described in the IEP, and the anticipated frequency, location and duration of each.¹¹³

Note, however, that the IEP team of a child convicted as an adult under state law and incarcerated in an adult prison may modify the child’s IEP or placement notwithstanding these requirements if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.¹¹⁴

Because of implementation problems in the past, the IDEA Amendments of 1997 expressly require IEP teams to consider and address five “special factors,” going to particular areas of potential educational need, when designing IEPs. These “special factors” are as follows:

• if a child’s behavior impedes his or her learning or the learning of others, the team must consider positive behavioral interventions, strategies and supports to address it;

• if a child has limited English proficiency, the team must consider the child’s language needs as they relate to the IEP;

• if a child is visually impaired, the team must provide for instruction in Braille and use of Braille unless the team, based upon an evaluation of the child’s skills and current and future needs, determines that this would not be appropriate;

• the IEP team must consider the communication needs of all children, and in the case of children with hearing impairments, take into account his or her opportunities for direct communication with peers and professionals in the child’s language and communication mode and academic level, including opportunities for direct instruction; and

• for all children, the team must consider whether the child requires assistive technology devices and services.¹¹⁵

As students grow older, IDEA requires the following three additional IEP components.

• Beginning at age 14, the IEP must include a statement of the child’s “transition service needs” focused on his courses of study, for example, participation in advanced placement courses or a vocational education program.¹¹⁶ In regard to the latter, students and their parents might consider options available in the high quality programs created for all students pursuant to the Carl D. Perkins Vocational and Technical Education Act as amended in 1998¹¹⁷ and the School-to-Work Opportunities Act of 1994.^{118 *}

• Beginning at age 16, and sooner if appropriate, the IEP must include a statement of needed “transition services.”¹¹⁹ “Transition services" means a coordinated set of activities for a student that

"(A) is designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(B) is based upon the individual student’s needs, taking into account the student’s preferences and interests; and

(C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation.”¹²⁰

Note, however, that transition planning and transition services requirements do not apply to youth with disabilities who are convicted as adults under state law and incarcerated in an adult prison, if their eligibility for IDEA services will end, because of age, prior to their release from prison, based upon consideration of their sentence and eligibility for early release.¹²¹

• Beginning at least one year before the child reaches the age of majority under state law, the IEP must also include a statement that the child has been informed of the rights under IDEA that will transfer from her parents to her when she becomes an adult.¹²²

In addition, the IEP must be formulated according to the principles of "least restrictive environment/maximum appropriate integration." (See discussion above).

The IEP must contain a statement of all services needed by the child, not just those which are available within the school system.¹²³ The school system then must arrange to provide all of the services included in the IEP.¹²⁴

Under certain circumstances, local school districts may provide 3 through 5 year olds with an "Individualized Family Service Plan" ("IFSP") instead of an IEP.¹²⁵ A local school system's substitution of an IFSP for an IEP must be consistent with state policy, and must be agreed to by the parents.¹²⁶ A school system contemplating providing an IFSP instead of an IEP must give the parents a detailed explanation of the differences between an IFSP and an IEP, and obtain informed written consent.¹²⁷ For example, parents should be made aware that unlike an IEP, an IFSP need not include an early education component provided by a qualified teacher of preschool children.

IFSPs for 3-5 year olds must be developed using the same procedures required for developing IEPs.¹²⁸ IFSPs for these older children must meet the content requirements governing IFSPs under the early intervention program for infants and toddlers with disabilities created by Part C (formerly Part H) of IDEA, 20 U.S.C. §1431 et seq. These include, among other things,

• a statement of the child's current levels of physical, cognitive, communication, social or emotional, and adaptive development;

• a statement of the family's resources, priorities and concerns regarding enhancement of the child's development;

• a statement of the specific early intervention services needed to meet the unique needs of the child and family (including the frequency, intensity and method of service delivery);

• a description of the natural environments in which services will be appropriately provided;

• a statement of the major outcomes expected to be achieved for the child and the family, including the methods to be used for assessing progress and determining whether services or goals need to be revised;

• the starting dates and expected duration of each service; and

• the steps to be taken to transition the child to preschool or other appropriate services.¹²⁹

For the range of early intervention services required to be made available, see 20 U.S.C. §1432(4) and the early intervention regulations at 34 C.F.R. part 303.

B. IEP Development and Parental Participation

IEPs are developed at meetings by IEP teams which, under IDEA, are composed of the following people:

• the child’s parents

• at least one of the child’s regular education teachers

• at least one of the child’s special education teachers or providers

• a representative of the school system who is knowledgeable about the general curriculum, is knowledgeable about the school system’s resources, and is qualified to provide, or supervise the provision of, specially designed instruction to meet the needs of children with disabilities

• an individual who is qualified to interpret the instructional implications of evaluation results

• other individuals who have knowledge or special expertise regarding the child, at the discretion of the parent or school system; and

• whenever appropriate, the student.¹³⁰

In addition, the school system must invite the student to any IEP meeting at which transition services will be discussed.¹³¹

The school system must take several steps to insure parent participation in IEP meetings and IEP development, including proper notification, agreement on scheduling, alternative means of participation (for example, by individual or conference telephone call), and actions to insure that the parent understands the proceedings, including provision of a translator or sign language interpreter when necessary.¹³² Parents also have the right under IDEA to tape record IEP meetings.¹³³

Once an IEP has been developed and agreed upon, the school system must provide the specialized instruction and services it contains. Parents must be given a copy of the IEP, at no cost.¹³⁴ Although IDEA does not explicitly address translation of IEPs, it would seem that in order to comply with requirements regarding parent participation in IEP and placement meetings and reviews, informed consent and the right to challenge school decisions, as well as to make meaningful for all parents and children the parent participation at the core of IDEA, schools must translate IEPs into parents’ native language.¹³⁵ Title VI of the Civil Rights Act of 1964 and the regulations implementing it, ¹³⁶ which prohibit discrimination on the basis of race and national origin, should also require translation of IEPs.¹³⁷

School staff may not unilaterally change an IEP. In order to revise an IEP or change a placement, schools must follow the meeting and team process described above (regarding IEPs) and below (regarding placement decisions). As discussed below, they must also give parents prior written notice.

C. Placement

Once a child's needs have been identified and appropriate services, goals and objectives identified through the IEP process, a placement capable of providing those services and achieving those goals and objectives can be selected. The child’s parents must be part of any group that makes placement decisions.¹³⁸ Placement decisions must be based upon the IEP.¹³⁹ This means that the IEP must be developed before a placement is chosen.¹⁴⁰ A school system violates IDEA if it writes an IEP to fit a placement it has already selected.¹⁴¹ Placement decisions must be individually made based upon student needs and abilities, and not upon category of disability, significance of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.¹⁴²

As discussed above, placement decisions must be based upon IDEA’s least restrictive environment/maximum feasible integration mandate, and made by a group of persons (including the parents) knowledgeable about the child, the meaning of the evaluation data, and the placement options.¹⁴³

D. Access To Records

During the evaluation, IEP development and placement process, parental rights of access to all education records are protected by statute, and regulation.¹⁴⁴ As noted above, the parent is specifically entitled to a copy of the IEP.

E. IEP Review and Revision

The IEP team must review the IEP periodically (and at a minimum, annually) and revise it in light of student needs. Revisions must be made as needed to address:

• any lack of expected progress in the regular curriculum, including the school-to-work program curriculum;

• any lack of expected progress towards the annual goals in the IEP;

• new evaluation results, including information provided by parents;

• the student's anticipated needs; or

• other matters.¹⁴⁵

VII. Parent and Student Challenges to School Decisions

As discussed above in connection with evaluation, IEP development and placement decisions, IDEA stresses parent involvement in decisions affecting a child’s education. In addition, as discussed below, IDEA contains provisions to ensure that parents can challenge school decisions when disputes develop nonetheless. IDEA also provides for selection of a "surrogate parent" to exercise these parent involvement rights when no parent can be identified or located or when the child is a ward of the state.¹⁴⁶ In addition, as discussed below in section VIII, some of these parent participation rights will transfer to students when they reach the age of majority under state law.

A. Notice and Consent

Parents must be notified in writing within a reasonable time before the school proposes to initiate or change, or refuses to initiate or change, the identification, evaluation, or placement of a child with disabilities or the provision of a free appropriate education to the child.¹⁴⁷ IDEA notice must contain a description of the proposed or refused action, including an explanation for the school's decision; a description of other options considered, along with an explanation of why these options were rejected; a description of each evaluation procedure, test, report or other factor relied upon in making the decision in question; information about organizations that can help parents understand their and their children’s rights under IDEA; and information about procedural rights and safeguards.¹⁴⁸ The notice must be written in understandable language, and in the parent's native language unless clearly not feasible.¹⁴⁹ Schools also must take steps to ensure that notice is effectively communicated where the parent's mode of communication is not a written language.¹⁵⁰

IDEA additionally requires school systems to obtain informed parental consent before an evaluation, reevaluation or a child’s initial placement in a program providing special education and related services.¹⁵¹

B. Complaint

Under IDEA, a parent is entitled to complain "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child."¹⁵² The §504 regulations also provide for parent complaints.¹⁵³

C. Hearing

IDEA entitles a parent to an impartial due process hearing concerning any complaint or, alternatively, concerning any proposal to initiate or change, or refusal to initiate or change, the identification, evaluation, or placement of the child or the provision of a free appropriate public education under IDEA.¹⁵⁴ The §504 regulations also require a hearing system.¹⁵⁵

Depending upon state law, IDEA hearings may be conducted by either the state education agency or by the public agency (e.g., local school district) directly responsible for the child's education.¹⁵⁶ There must be an impartial hearing officer who is not an employee (or a board member) of the public agency involved in the child's education and who does not have any conflicting interests.¹⁵⁷

At IDEA hearings, the parties have the right to (1) be accompanied and advised by counsel and by individuals with special knowledge or training respecting children with disabilities; (2) present evidence and confront, cross-examine, and compel the attendance of witnesses; (3) prohibit the introduction of any evidence not disclosed at least five days before the hearing; (4) to obtain a written or electronic verbatim record; and (5) to obtain written or electronic findings and decisions.¹⁵⁸ Parents have the right to decide whether the record, findings and decision will be provided to them in written or electronic form.¹⁵⁹

Furthermore, parents are entitled to access to all education records in preparing for and during the hearing and appeals process, to the same extent as noted in the discussion of evaluations and IEP development, above.

A copy of the final decision must be mailed to the parties within 45 days after receipt of a request for a hearing unless a specific extension is granted.¹⁶⁰

D. Appeal/Impartial Review

If the initial IDEA hearing was not conducted by the state education agency, any aggrieved party can appeal the decision to that state agency.¹⁶¹ In conducting an impartial review, the state must (1) examine the entire hearing record; (2) insure compliance with due process; (3) conduct a hearing in accordance with the procedure above if additional evidence is necessary; (4) provide opportunity for oral or written argument; and (5) make an independent decision, with written findings provided to the parties.¹⁶² The review must be conducted at a time and place reasonably convenient to parents and students, and copies of the final decision must be mailed to parties within 30 days of the request for review, unless the reviewing officer grants a specific extension.¹⁶³

E. Civil Action

IDEA provides that a party aggrieved by a hearing decision (when the hearing was conducted at the state level and there is thus no right of impartial review) or aggrieved by an impartial review decision may sue by bringing a civil action in any state court of competent jurisdiction or in a federal district court.¹⁶⁴

F. Mediation

In addition to the complaint and hearing rights described above, states and school systems must set up a system of mediation for IDEA disputes.¹⁶⁵ Neither parents nor the school can be forced to take part in mediation, and mediation may not be used to deny or delay a parent’s right to a hearing.¹⁶⁶ Mediation sessions must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.¹⁶⁷

G. Stay-put Rights: Child's Placement Status During Administrative and Judicial Proceedings

Once the parent initiates a complaint under IDEA, the child's placement status is protected through any hearing and appeals or judicial proceedings: the child remains in his or her current educational placement, unless the parents and the State or local education agency agree otherwise.¹⁶⁸ This provision is often called the “stay-put” rule. There are, however, limited exceptions to this rule for some children involved in certain kinds of disciplinary incidents involving dangerous weapons, illegal drugs, or behavior substantially likely to cause injury to self or others.¹⁶⁹

When a complaint involves a child seeking initial admission to school, the child, with parental consent, must be placed in the public school program until all administrative and judicial proceedings are completed.¹⁷⁰

Where a parent prevails at the hearing or, where relevant, impartial review level, the favorable placement decision becomes an agreement between the parents and the State or local education agency within the meaning of the stay-put rule.¹⁷¹ The placement thus must be implemented at public expense even if the school system appeals the decision.¹⁷²

H. Remedies

IDEA directs courts, in the exercise of their broad equitable powers, to order such relief as is "appropriate."¹⁷³ Similarly, §504 entitles students who successfully pursue their rights under this statute to a variety of remedies as relief for having suffered discrimination. Due process hearing officers and courts can order a school system to take any number of actions in order to correct violations of IDEA and §504, including modifying an IEP, implementing an existing IEP it has failed to carry out, providing a particular placement, providing a particular related service(s), etc. In addition, compensatory education and reimbursement for special education and related services paid for by parents are available remedies under proper circumstances. Damages may also be available in IDEA and/or §504 cases.

1. Reimbursement

The Supreme Court approved retroactive reimbursement as an IDEA remedy in the 1985 case of School Committee of the Town of Burlington v. Department of Education.¹⁷⁴ In that case, the court ruled that "appropriate" relief under IDEA can include an order requiring a local school district to reimburse parents for the cost of obtaining an appropriate education when the school system has failed to provide a free appropriate public education meeting IDEA standards.¹⁷⁵ A 1997 amendment to IDEA provides that reimbursement may be reduced or denied under any of the following circumstances:

• If at the last IEP meeting before removing their child from the public school, the parents did not inform the IEP team that they were rejecting the school system’s proposed placement, state their concerns, and announce their intent to enroll their child in a private school at public expense, or did not provide this information in writing 10 business days before removing the child.

• If the school system notified the parents that it proposed to evaluate the child before the parents removed him or her from school, but the parents did not make the child available for the evaluation.

• If a judge finds that the parents acted unreasonably.¹⁷⁶

Parents need not precisely replicate the placement a school district should have provided in order to obtain reimbursement; parents may receive reimbursement for the costs incurred in providing special education or related services so long as these educational services meet the standard of "appropriateness" established by IDEA.¹⁷⁷

2. Compensatory Education

Since the Supreme Court's decision in Burlington, courts have consistently held that compensatory education--meaning additional special education and/or related services to make up for the time during which a school system failed to provide a free appropriate public education--is also an appropriate remedy under IDEA.¹⁷⁸ Comparing compensatory education to the reimbursement approved in Burlington, these courts have recognized that without compensatory education, students whose parents lack the resources to place them in private programs and seek reimbursement have no way to vindicate their IDEA rights.¹⁷⁹ Compensatory education should therefore be available whenever necessary to secure the right to a free appropriate public education.

Although most reported judicial decisions awarding compensatory education have done so under IDEA, the remedy should be available under §504 as well.¹⁸⁰

3. Damages

Whether damages are available as a remedy for IDEA violations is an unsettled question. Most of the judicial decisions stating that damages are not available pre-date the U.S. Supreme Court’s 1992 decision in Franklin v. Gwinnett Co. Public Schools,¹⁸¹ and so should no longer be considered good law. Franklin, which involved the availability of damages for intentional violations of Title IX of the Education Amendments of 1972 (prohibiting gender discrimination), held that as a “general rule,” “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.”¹⁸²

Based upon Franklin, courts increasingly are holding that damages may be awarded for violations of IDEA rights.¹⁸³ Post-Franklin cases stating or holding to the contrary generally have done so without addressing or acknowledging Franklin. ¹⁸⁴

Courts generally agree that damages are available for at least intentional discrimination under §504.¹⁸⁵

I. Attorneys Fees

Parents who prevail in IDEA disputes may recover reasonable attorneys fees (at prevailing market rates) and costs, subject to certain conditions.¹⁸⁶ Attorneys fees are available for parents who prevail in administrative due process hearings (with no subsequent appeal to court) as well as for those who prevail in court.¹⁸⁷ Fees are also recoverable for work done in settling IDEA disputes prior to a due process hearing,¹⁸⁸ and may be available for mediation.¹⁸⁹

Apart from IDEA fee provisions, parties who prevail in court on §504 claims may also be awarded attorneys fees.¹⁹⁰

VIII. Transfer of Rights at Age of Majority

Amendments made to IDEA in 1997 provide for the transfer of certain IDEA rights from parents to students when students reach the age of majority under state law (most commonly, age 18), so long as the student has not been declared incompetent in a legal proceeding under state law. Under the statute, schools must provide all IDEA-required notice to the parent and the student; all other rights ordinarily afforded parents under IDEA transfer to the student.¹⁹¹ States may further provide that all rights – including the right to receive notice of school actions and proposals – transfer completely to incarcerated youth (whether in juvenile or adult correctional institutions) who attain the age of majority.¹⁹² Schools must notify the student and parents when rights transfer, and also must include in the student’s IEP, beginning at least one year before the child will reach the age of majority, a statement indicating that the student has been informed of the rights that will transfer to her when she becomes an adult.¹⁹³

In addition, the 1997 amendments to IDEA attempt to address educational decision making for adult students who have not been declared incompetent in a legal proceeding, but who are unable to give informed consent regarding their educational programming.¹⁹⁴ IDEA provides that the state must establish procedures for appointing the student’s parent (or, if the parent is not available, another appropriate individual) to represent his or her educational interests. This provision, however, raises a number of serious questions. Ordinarily, only a court may deprive an adult of the right to make his or her own decisions, and only then after a legal proceeding that meets constitutional standards. The new IDEA language does not address these constitutional issues. It also not address who may determine that a legally competent adult student cannot make informed decisions about his education, who has the authority to take that decision-making power away from him or her (or on what basis), or who may initiate procedures for taking away decision-making rights. Nor does it create any standards for deciding that a student is not capable of giving informed consent.¹⁹⁵ Attempts to implement this provision likely will lead to litigation.

NOTES

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^* Final regulations implementing IDEA as amended in 1997 were published in the Federal Register on March 12, 1999, and appear at 64 Fed. Reg. 12406 et seq. They took effect on May 11, 1999. Citations to the regulations in this Overview include the page number on which they appear in the Federal Register (e.g., “64 Fed. Reg. at 12429") as well as the number they will bear in the Code of Federal Regulations (e.g., 34 C.F.R. §300.138).

^* For a discussion of the Perkins and School-to-Work Acts, see Eileen L. Ordover and Leslie T. Annexstein, Ensuring Access, Equity, and Quality for Students with Disabilities in School-to-Work Systems (1999), available from the Center for Law and Education, Washington, D.C.

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1. Prior to a name change effected by Congress in1990, IDEA was called first the Education for All Handicapped Children Act or "EAHCA," then the Education of the Handicapped Act or "EHA."

2. IDEA’s discipline provisions are beyond the scope of this overview. For an introduction to discipline provisions, see E. Ordover, “Highlights of the Discipline Provisions of the Individuals with Disabilities Education Act Amendments of 1997,” available from the Washington, D.C. office of the Center for Law and Education, 1875 Connecticut Ave., N.W., Suite 510, Washington, D.C. 20009; telephone: 202 986-3000; worldwide web: www.cleweb.org

3. 29 U.S.C. §794.

4. See 34 C.F.R. §§104.4(b), 104.31-39.

5. 20 U.S.C. §1401(3)(A) (emphasis added).

6. See 64 Fed. Reg. 12406 at 12457, 12421 (March 12, 1999) (to be codified at 34 C.F.R. §§300.7(c), 300.541)). Note that the definitions in the1999 regulations include attention deficit disorder and attention deficit hyperactivity disorder as examples of conditions that may trigger IDEA eligibility under the category of “other health impairment.”

7. 20 U.S.C. §1401(3)(B), 64 Fed. Reg. at 12421 (to be codified at 34 C.F.R. §300.7(b).

8. 64 Fed. Reg. at 12439 (to be codified at 34 C.F.R. §300.313(a)).

9. Timothy W. v. Rochester School District, 875 F.2d 954 (1st Cir. 1989), cert. denied, 110 S. Ct. 519 (1989).

10. 29 U.S.C. §705(20)(B), as amended by Pub. L. 105-220 §403, 112 Stat. 936, 1104 (August 7, 1998); 34 C.F.R. §104.3(j)(1).

The term "physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the neurological, musculoskeletal, sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin or endocrine systems, as well as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 34 C.F.R. §104.3(j)(2)(i). "Major life activities" means activities such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 34 C.F.R. §104.3(j)(2)(ii).

11. 34 C.F.R. §104.33(a).

12. For example, a child who has an "other health impairment," such as epilepsy or AIDS, but who does not need special education as a result is not a "child with disabilities" under IDEA. He or she would nonetheless be protected by §504. In addition, a child who does not have any of the kinds of disabilities required for IDEA eligibility may nonetheless have an impairment--or be regarded as having an impairment or have a record of an impairment--covered by §504.

13. 34 C.F.R. §104.3(k)(2).

14. 20 U.S.C. §1412(a)(1). The U.S. Department of Education regulations implementing IDEA further explain this requirement. See 64 Fed. Reg. at 12437 (to be codified at 34 C.F.R. §300.300).

15. See 20 U.S.C. §1412(a)(1)(B)(ii); 64 Fed. Reg. at 12426-27, 12439 (to be codified at 34 C.F.R. §§300.122(a)(2), 300.122(b)(2), 300.311(a)).

16. See 20 U.S.C. §§1412(a)(3) and 1413(a)(1); 64 Fed. Reg. at 12427, 12445 (to be codified at 34 C.F.R. §§300.125 and 300.451) (IDEA); 34 C.F.R. §104.32 (§504).

17. See generally 20 U.S.C. §1412(a)(11), §1413; 64 Fed. Reg. at 12433-35, 12463 (to be codified at 34 C.F.R. 300.220-.244, 300.600) (IDEA); 34 C.F.R. 104.33 (§504).

18.

However, a 1997 amendment to IDEA permits states to transfer from the state educational agency to any other public agency in the state ultimate responsibility for the education of youth with disabilities who have been convicted of crimes as adults and incarcerated in adult prisons. See 20 U.S.C. §1412(a)(11)(C); 64 Fed. Reg. at 12463 (to be codified at 34 C.F.R. §300.600(d)).

19. 20 U.S.C. §§1411(f),1412(a)(11), 1416, 1418(a); 64 Fed. Reg. at 12427,12458,12463, 12468-9 (to be codified at 34 C.F.R. §§300.128(b)(2), 300.556, 300.600, 300.750-.755); 34 C.F.R. §§76.700, 76.770. See also Corey H. v. Bd. of Ed. of City of Chicago, 27 IDELR 713 (N.D. Ill. 1998); Cordero v. Pennsylvania Dept. of Ed., 795 F. Supp. 1352 (M.D. Penn. 1992).

20. 20 U.S.C. §1413(h)(1)(B), (D); 64 Fed. Reg. at 12443 (to be codified at 34 C.F.R. §§300360-300.361.

21. 20 U.S.C. §1412(a)(1).

22. See 34 C.F.R. 104.33(a).

23. 20 U.S.C. §1401(8).

24. 20 U.S.C. §1401(25) (emphasis added); see also 64 Fed. Reg. at 12425 (to be codified at 34 C.F.R. §300.26).

25. 64 Fed. Reg. 12425 (to be codified at 34 C.F.R. §300.26(b)(3)).

26. See, e.g., Corey H., supra; Board of Education of the County of Cabell v. Dienelt, 1986-87 EHLR DEC. [Education for the Handicapped Law Reports Decisions] 558:305, :308 (S.D.W.Va. 1987) (school board failed to provide free appropriate public education when it attempted to place student with learning disabilities in its "generalized special education program without reference to the child's individualized needs"), aff'd. per curiam, 843 F.2d 813 (4th Cir. 1988). See also 64 Fed. Reg. at 12471 (to be codified at 34 C.F.R. part 300, Appendix A, question 1 (placement decisions must be individually determined on basis of needs and abilities, and not solely on factors such as category of disability).

27. 34 C.F.R. §104.4(b)(1)(iv) (prohibiting recipients of federal funds from providing different or separate services to people with disabilities or any category of people with disabilities unless such treatment is necessary to provide them services as effective as those provided to non-disabled people).

28. 20 U.S.C. §1401(22). For definitions of particular related services listed in the definition, see 64 Fed. Reg. at 12424 (to be codified at 34 C.F.R. §300.24(b)).

29. 64 Fed. Reg. at 12424 (to be codified at 34 C.F.R. §§300.24(a), 300.24(b)(7)).

30. See 64 Fed. Reg. at 12479 (to be codified at 34 C.F.R. part 300, Appendix A, paragraph 34).

31. Depending upon a student's particular circumstances, a school system might be required to provide a computer or other assistive technology devices, or assistive technology services, as "special education," as a "related service" or as a "supplementary aid or service" to facilitate his or her education in the regular education setting pursuant to IDEA's least restrictive environment requirements (discussed below). 64 Fed. Reg. at 12438 (to be codified at 34 C.F.R. §300.308). See also Inquiry of Goodman, 16 EHLR 1317 (OSEP 8/10/90).

32. 34 C.F.R. §104.33(b) (emphasis added).

33. See 34 C.F.R. §104.33(b)(2).

34. 20 U.S.C. §§1401(a)(8), (25); 34 C.F.R. §§300.13(a); 34 C.F.R. 104.33(c).

35. McLain v. Smith, 16 EHLR 6 (E.D. Tenn. 1989).

36. 64 Fed. Reg. at 12430 (to be codified at 34 C.F.R. §300.142(f).

37. Id.

38. See 64 Fed. Reg. at 12430 (to be codified at 34 C.F.R. §300.142(e)).

39.

64 Fed. Reg. at 12430 (to be codified at 34 C.F.R. §300.142(e)(2)(iii)).

40. 64 Fed. Reg. at 12430 (to be codified at 34 C.F.R. §300.142(e)(2)(i)).

41.

64 Fed. Reg. at 12430 (to be codified at 34 C.F.R. §300.142(e)(2)(ii)).

42. See Shook v. Gaston County Board of Education, 882 F.2d 119 (4th Cir. 1989), cert. denied, 58 U.S.L.W. 3528 (2/20/90); Seals v. Loftis, 614 F. Supp. 302 (E.D.Tenn. 1985).

Financial loss from the use of insurance might occur in a variety of ways, including, e.g., a decrease in available lifetime coverage under the policy; a decrease in available annual coverage or any other benefit under the policy; payment of a deductible amount for a particular service; an increase in premiums; discontinuation of the policy; or decreased future insurability with a different insurance company if the educational services for which insurance is used are deemed treatment for a pre-existing medical condition. It also includes the kinds of losses, listed above, that preclude a school from tapping Medicaid or other public insurance benefits.

43. See Trans Allied-Medical Services, Inc., 16 EHLR 963(OCR 5/30/90).

44. 20 U.S.C. §1414(b)(2)(A), (c)(1)(iv); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §§300.532(b), 300.533(a)(2)(iv)).

45. 20 U.S.C. §1414(d)(1)(A), (d)(4); 64 Fed. Reg. at 12440, 12442 (to be codified at 34 C.F.R. §§300.343(c)(2)(i), 300.347, 300.

46. 20 U.S.C. §1414(d)(1)(B); 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §§300.344(a)(2), (4)(ii).

47. 20 U.S.C. §1412(17); 64 Fed. Reg. 124429 (to be codified at 34 C.F.R. §300.138. For the small number of children who cannot participate even with accommodations, states and school districts must create alternate assessments. Id.

48. 20 U.S.C. §1412(16); 64 Fed. Reg. at 12429 (to be codified at 34 C.F.R. §300.137). This means that the state cannot set separate, weaker standards for students with disabilities. Rather, the state must supplement the learning goals and standards it uses for all students with any additional ones required by the unique needs of children with disabilities.

49. 458 U.S. 176, 188-189, 206-207 (1982).

50. Board of Education of East Windsor Regional School District v. Diamond, 808 F.2d 987, 991 (3rd Cir. 1986) (emphasis in original). See also Cordrey v. Euckert, 917 F.2d 1460, 1473 (6th Cir. 1990), cert. denied, 111 S. Ct. 1391 (1991) (child must benefit meaningfully within his or her potential); Doe v. Smith, 879 F.2d 1340, 1341 (6th Cir. 1989), cert. denied, 110 S. Ct. 730 (1990) (benefit must be more than de minimis); Polk v. Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3rd Cir.), cert. denied 109 S.Ct. 838 (1988) (de minimis or trivial benefit insufficient; whether benefit is de minimis must be gauged in relation to child's potential); Hall v. Vance County Board of Education, 774 F. 2d 629, 636 (4th Cir. 1985) ("[c]learly, Congress did not intend that a school system could discharge its duty...by providing a program that produces some minimal academic advancement, no matter how trivial"; Johnson v. Lancaster-Lebanon Intermediate Unit 13, 757 F. Supp. 606, 618 (E.D. Penn. 1991) (educational program must be sufficient for student to make "meaningful educational progress"); Chris D. v. Montgomery County Board of Education, 743 F. Supp. 1524, 1531 (M.D. Ala. 1990)(rejecting implicit school board contention that "a benefit is conferred anytime a student is not left to vegetate"); s24 cf. Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1158 (5th Cir. 1986).

51. Ridgewood Bd. of Ed. v. N.E., ___ F.3d ___, 30 IDELR 41 (3^rd Cir. 1999).

52. See 20 U.S.C. §§1412(a)(16(A)(ii), 1412(17)(A), 1414(b)(2)(A), 1414(c)(1)(iii), 1414(d)(A)(i)(I), 1414(d)(1)(A)(ii)(I), 1414(d)(1)(A)(iii)(II). See also Carter v. Florence County School District No. 4, 950 F.2d 156, 160 (4^th Cir. 1991), aff’d. on other grounds, 510 U.S. 7,114 S.Ct. 361 (1993) (goal of four months’ progress per year in reading and mathematics was inadequate for high school student in question, allowing her to continue to fall behind classmates at alarming rate).

53. Massachusetts, for example, requires educational services designed to benefit a child with disabilities "to the maximum extent feasible." Mass. Gen. Laws c. 71B, §3.

54. School Committee of Town of Burlington v. Department of Education, 736 F.2d 773, 789 (1st. Cir. 1984), aff'd on other grounds, 471 U.S. 359, 105 S. Ct. 1996 (1985). See also Johnson v. Independent School District No. 4, 921 F.2d 1022, 1029 (10th Cir. 1990), cert. denied, 59 U.S.L.W. 3741 (1991); Thomas v. Cincinnati Board of Education, 918 F.2d 618, 620 (6th Cir. 1990); Geis v. Board of Education of Persippany-Troy Hills, 774 F.2d 575, 581 (3rd Cir. 1985); Students of California School for the Blind v. Honig, 736 F.2d 538, 544-545 (9th Cir. 1984), vacated as moot, 471 U.S. 148, 105 S.Ct. 1928; Pink v. Mt. Diablo Unified School District, 738 F. Supp. 345, 346-347 (N.D.Cal. 1990); Barwacz v. Michigan Department of Education, 674 F. Supp. 1296, 1303-1304 (W.D.Mich. 1987).

55. 34 C.F.R. §104.4(b)(ii)-(iii).

56. 34 C.F.R. §104.34(c).

57. County of San Diego v. California Special Education Hearing Office, 24 IDELR 756 (9^th Cir. 1996) (“educational benefit is not limited to academic needs, but includes the social and emotional needs that affect academic progress, school behavior, and socialization”); Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996) ("[e]veryone agrees that A.S. is exceptionally bright and thus able to test appropriately on standardized tests. This is not the sine qua non of `educational benefit,' however. The term 'unique educational needs' [shall] be broadly construed to include...academic, social, health, emotional, communicative, physical and vocational needs"); see also, e.g., Babb v. Knox County School System, 965 F.2d 104, 109 (6th Cir. 1992), cert. denied, 113 S.Ct. 380 (education under IDEA encompasses "both academic instruction and a broad range of associated services traditionally grouped under the general rubric of `treatment'"). For examples of other cases stressing the broad meaning of education under IDEA, see Timothy W. v. Rochester School District, 875 F.2d 954, 962 (1st Cir. 1989), cert. denied, 493 U.S. 983 ("the Act's concept of special education is broad, encompassing not only traditional cognitive skills, but basic functional skills as well"); Kruelle v. New Castle County School District, 642 F.2d 687, 693-94 (3rd Cir. 1981) ("the concept of education is necessarily broad...[w]here basic self-help...skills...are lacking, formal education begins at that point"); Battle v. Commonwealth of Pennsylvania, 629 F.2d 269, 275 (3rd Cir. 1980), cert. denied, 452 U.S. 968 (1981) (same). Cf. Stacey G. v. Pasadena Independent School District, 547 F. Supp. 61, 77 (S.D. Tex. 1982) ("...an essential element of an appropriate education for a child as handicapped as Stacey is an opportunity to develop skills that would allow Stacey to be as self-sufficient as possible and to function outside of an institution").

For a fuller discussion of schools’ obligation to address behavioral manifestations and needs as education issues, see E. Ordover, Inclusion of Students with Disabilities Who Are Labeled “Disruptive”: Issue Papers for Legal Advocates, available from the Washington, D.C. office of the Center for Law and Education, 1875 Connecticut Avenue, N.W., Suite 510, Washington, D.C. 20009; telephone: (202) 986-3000; worldwide web: www.cleweb.org

58. See, e.g., David D. v. Dartmouth School Committee, 775 F.2d 411, 423 (1st Cir. 1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790 (1986) (proposed placement did not provide a free appropriate public education, because "although David had performed relatively well in the rather cloistered and familiar environment of the school...in less familiar settings, or where relatively unsupervised, he frequently showed little or no self-control in his conduct towards other persons”) .

59. 20 U.S.C. §§1412(5); see also 64 Fed. Reg. at 12457-8 (to be codified at 34 C.F.R. §§300.550-556).

60.

64 Fed. Reg. at 12458 (to be codified at 34 C.F.R. §300.552(e)).

61. 20 U.S.C. §§1412(a)(2), 1414(d)(1)(A)(iii)(II), (III); 64 Fed. Reg. at 12438 (to be codified at 34 C.F.R. §§300.304-307).

62. Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972).

63. Oberti v. Bd. of Ed. of Borough of Clementon Schl. Dist., 995 F.2d 1204 (3rd Cir. 1993); Tokarcik v. Forest Hills School District, 665 F.2d 443, 458 (3rd Cir. 1981), cert. denied, 458 U.S. 1121; Davis v. District of Columbia Board of Education, 530 F. Supp. 1209, 1211-1212 (D.D.C. 1982); Mills, supra, at 880-881 (D.D.C. 1972); 34 C.F.R. §104.34(a).

64. 64 Fed. Reg. at 12471 (to be codified at 34 C.F.R. part 300, Appendix A, question 1).

65. Daniel R.R. v. State Board of Education, 874 F.2d 1036, 1048 (5th Cir. 1989); see also Oberti, supra.

66. Board of Education of Sacramento City Unified School District v. Holland, 786 F. Supp. 874, 878, aff'd., 14 F.3d 1398 (9th Cir. 1994). See also Daniel R.R., supra, at 1048 (LRE analysis is "an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child's handicapping condition, his needs and abilities, and the school's response to the child's needs").

67. Greer v. Rome City School District, 950 F.2d 688, 696 (11th Cir. 1991), opinion withdrawn, 956 F. 2d 1025 (11th Cir. 1992), reinstated, 967 F.2d 470 (11th Cir. 1992). See also 64 Fed. Reg. at 12471 (to be codified at 34 C.F.R. part 300. Appendix A, question 1 (“before a disabled child can be placed outside of the regular education environment, the full range of supplementary aids and services that if provided would facilitate the student’s placement in the regular classroom must be considered”).

68. Id.

69. 20 U.S.C. §1414(d)(6)(B); 64 Fed. Reg. at 12439 (to be codified at 34 C.F.R. §300.311(c)).

70. See also 34 C.F.R. §104.37, regarding non-academic activities.

71. 425 F. Supp. 180 (S.D. W.Va. 1976).

72. Id. at 183-84.

73. See, e.g., Roncker v. Walter, 700 F.2d 1058 (6th Cir 1983), cert. denied, 464 U.S. 864, 104 S.Ct. 196.

For additional decisions addressing various aspects of the least restrictive environment and inclusion see, e.g., Hartmann v. Loudoun Co. School Bd., ___F.3d ___, 26 IDELR 167 (4^th Cir. 1997); Schuldt v. Mankato School District No. 77, 937 F.2d 1357 (8th Cir. 1991); Barnett v. Fairfax County School Board, 927 146 (4th Cir. 1991); Lachman v. Illinois Board of Education, 852 F.2d 290 (7th Cir. 1988); Hawaii State Department of Education v. Katherine D., 727 F.2d 809 (9th Cir. 1983); Mavis v. Sobol, 839 F. Supp. 968 (N.D.N.Y. 1994); Statum v. Birmingham Pub. Sch. Bd. of Ed., 20 IDELR [Individuals with Disabilities Education Law Report] 435 (N.D. Ala. 1993); Bonadonna v. Cooperman, 619 F. SUPP. 401 (D.N.J. 1985); Springdale School District v. Grace, 494 F. SUPP. 266 (W.D. Ark. 1980), aff'd. 656 F.2d 800 (8th Cir. 1981), vacated and remanded for further consideration, 458 U.S. 1118 (1982), aff'd., 693 F.2d 41, cert. denied, 461 U.S. 927 (1983).

74. 20 U.S.C. §1412(a)(2); 34 C.F.R. §300.304 (1996). Current 34 C.F.R. §300.304 would be retained under the Department of Education’s October 22, 1997 proposed IDEA regulations.

75. 34 C.F.R. §104.4(b).

76. See 34 C.F.R. §§300.305-.307 (1996) (implementing IDEA); 34 C.F.R. §§104.34(c) and 104.37 (implementing §504). The Department of Education’s October 22, 1997 proposed new IDEA regulations would retain current 34 C.F.R. §§300.305-307.

77. 20 U.S.C. §1414(a) - (c); 64 Fed. Reg. at 12427 (to be codified at 34 C.F.R. §§300.125(a)(1), 300.126); 34 C.F.R. §104.32.

78. 20 U.S.C. §1414(a)(1); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.531); 34 C.F.R. §104.35(a).

79. 20 U.S.C. §1414(a)(2)(A); 64 Fed. Reg. at 12457 (to be codified at 34 C.F.R. §300.536(b)).

80. 20 U.S.C. §1414(c)(5); 64 Fed. Reg. at 12457 (to be codified at 34 C.F.R. §300.534(c)(1)).

81. 34 C.F.R. §104.35(a), (d).

82. 20 U.S.C. §§1414(b)(1), 1415(b)(3); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.503)(a)(1)); 34 C.F.R. §104.36.

83. See 20 U.S.C. §1415(c), (d); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §§300.503(b), (c), 300.504).

84. 20 U.S.C. §1414(a)(1)(C), (c)(3); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.505(a)).

85. 20 U.S.C. §1414(c)(3); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.505(c)).

86. For the definition of “consent” contained in the IDEA regulations promulgated before the term “informed” consent was added to the statute, see 34 C.F.R. §300.500(a) (1998). The IDEA regulations promulgated March 12, 1999 retain that language, without accounting for the addition of the word “informed.” See 64 Fed. Reg. at 12448 (to be codified at 34 C.F.R. §300.500(b)(1)).

87. 20 U.S.C. §1414(a)(1)(C)(ii); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.505(b)).

88. 20 U.S.C. §1414(b)(2)(A), (3)(D); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(b), (d)).

89. 20 U.S.C. §1414(b)(2)(A), (c)(1)(B)(iv); 64 Fed. Reg. 12456 (to be codified at 34 C.F.R. §§300.532(b), 300.533(a)(2)(iv)).

90. 20 U.S.C. §1414(b)(2)(C), (3)(C); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(g)). See also 34 C.F.R. §104.36(c) (regarding §504 requirements).

91. 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(h)).

92. 20 U.S.C. §1414(b)(2)(A), (B); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(e)). See also 34 C.F.R. §104.35(b) (regarding §504).

93. See 64 Fed. Reg. at 12457 (to be codified at 34 C.F.R. §§300.540 - 300.543).

94. 20 U.S.C. §1414(b)(3)(A); 64 Fed. Reg. 12456 (to be codified at 34 C.F.R. §300.532(a)(1)).

95. Id.

96. 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(a)(2)).

97. 20 U.S.C. §1414(b)(3)(B); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(c)(1)); 34 C.F.R. §104.35(b)(1).

98. 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532(c)); 34 C.F.R. §104.35(b)(3). For example, a written test to measure intellectual abilities would not be valid for a student whose perceptual problems prevented him/her from accurately perceiving the words on the page.

99. 20 U.S.C. §1414(c)(1)(A); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.533).

100. 20 U.S.C. §1414(c)(1)(B); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.533(a)(2)).

101. 20 U.S.C. §1414(c)(2); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.533(c)).

102. 20 U.S.C. §1414(c)(4); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.533(d)).

103. 20 U.S.C. §1414(b)(2)(B); 64 Fed. Reg. at 12456 (to be codified at 34 C.F.R. §300.532 (f)); 34 C.F.R. §104.35.

104. 20 U.S.C. §1414(b)(5); 64 Fed. Reg. at 12456-7 (to be codified at 34 C.F.R. §300.534(b)(1)).

105. The required social and cultural information should include information concerning health (including sleep, nutrition and housing); family structure, educational background and native language; access to books; exposure to the kind of information and experiences that tests assume, and to test administrators. See American Educational Research Assn., American Psychological Assn. and National Council on Measurement in Education, Standards for Educational and Psychological Testing (1985).

106. 20 U.S.C. §1414(b)(4)(A); 64 Fed. Reg. at 12457 (to be codified at 34 C.F.R. §300.535(a)); 34 C.F.R. §104.35(c).

Many of the tests and other procedures used in educational evaluations have been criticized by educators, psychologists, researchers and others as invalid for the purposes they are intended to serve, as racially or culturally biased, or as inaccurate for other reasons. Tests or other evaluation tools appropriate for some children may be inappropriate--and produce misleading results--for others. A great deal has been written on this subject, and advocates should be prepared to scrutinize this issue carefully, particularly if the parent's assessment of the child differs from that of the evaluation team and/or the child is a member of a racial, ethnic or linguistic minority. See also 20 U.S.C. §1414(b)(5) (“a child shall not be determined to be a child with a disability if the determinate factor for such determination is...limited English proficiency”).

107. 20 U.S.C. §1415(b)(1); 64 Fed. Reg. at 12448-9 (to be codified at 34 C.F.R. §300.502).

108. 64 Fed. Reg. at 12448-9 (to be codified at 34 C.F.R. §300.502(b)).

109. 20 U.S.C. §§1401(8), 1412(a)(4); 64 Fed. Reg. at 12457 (to be codified at 34 C.F.R. §300.535(b)).

110. 20 U.S.C. §1401(8)(D); Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 206 n.27, 102 S.Ct. 3034, 3051 n.27 (1982). Section 504 does not require the development of an IEP. However, the §504 regulations provide that implementation of an IEP developed pursuant to IDEA is one means of providing an "appropriate" education under §504. See 34 C.F.R. §104.33(b)(2). Increasingly, schools are providing written “§504 Plans” for students who are protected by §504, but who are not eligible for services under IDEA.

111. These are all to be designed so as to permit the child to attain the annual goals, progress in the general curriculum, participate in extracurricular and other nonacademic activities, and be educated and participate with other children with and without disabilities. 20 U.S.C. §1414(d)(A)(iii); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347(a)(3)).

112. If the IEP team determines that a child will not participate in a particular state- or district-wide assessment, the IEP must also include a statement explaining why the particular assessment is not appropriate for the student, and how he will be assessed. 20 U.S.C. §1414(d)(1)(A)(v)(II); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347(5)(ii)).

113. 20 U.S.C. §1414(d)(1)(A); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347).

114. 20 U.S.C. §1414(d)(6)(B); 64 Fed. Reg. at 12439 (to be codified at 34 C.F.R. §300.311(c)).

115. 20 U.S.C. §1414(d)(3)(B); 64 Fed. Reg. at 12441 (to be codified at 34 C.F.R. §300.346(a)(2), (c)).

116. 20 U.S.C. §1414(d)(1)(A)(vii)(I); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347(b)(1)).

117. See Carl D. Perkins Vocational and Applied Technology Education Amendments of 1998, Pub. L. No. 105-332, 112 Stat. 3076 (October 31, 1998), amending 20 U.S.C. §2301 et seq.

118. 20 U.S.C. §6101 et seq.

119. 20 U.S.C. §1414(d)(1)(A)(vii)(II); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347(b)(2)).

120. 20 U.S.C. §1401(30); 64 Fed. Reg. at 12425 (to be codified at 34 C.F.R. §300.29).

121. 20 U.S.C. §1414(d)(6)(A)(ii); 64 Fed. Reg. at 12439 (to be codified at 34 C.F.R. §300.311(b)(2)).

122. 20 U.S.C. §1414(d)(1)(A)(vii)(III); 64 Fed. Reg. at 12442 (to be codified at 34 C.F.R. §300.347(c)). As discussed in further detail in section VIII, below, changes made to IDEA in 1997 allow states to transfer IDEA rights (regarding notice, consent, participation in educational planning, and dispute resolution, all of which are discussed below) from parent to child when the child reaches the age of majority. Unless the now-adult student is incarcerated, however, states choosing this option must provide any notice required by IDEA to both student and parent. See 20 U.S.C. §1415(m).

123. See, e.g., Todd D. v. Andrews, 933 F.2d 1576, 1580-81 (11th Cir. 1991) (district court erred by ordering alteration of IEP goals so that IEP could be implemented at existing placement, rather than ordering school system to provide placement that could implement IEP as written).

124. 20 U.S.C. §1401(8)(D); 64 Fed. Reg. at 12442-3 (to be codified at 34 C.F.R. §300.350(a)(1)); 64 Fed Reg. at 12478 (to be codified at 34 C.F.R. part 300, Appendix A, paragraph 31).

125. 20 U.S.C. §1414(d)(2)(B); 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §300.342(c)).

126. Id.

127. 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §300.342(c)(2)).

128. 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §300.342(c)(1)).

129. 20 U.S.C. §1436(d).

130. 20 U.S.C. §1414(d)(1)(B); 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §§300.343. 300.344).

131. 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §300.344(b)).

132. 64 Fed. Reg. at 12441 (to be codified at 34 C.F.R. §300.345). See also Rothschild v. Grottenthaler, 907 F. 2d 286 (2nd Cir. 1990) (school district must provide parents with sign-language interpreter for school-initiated meetings concerning academic or disciplinary progress of their children).

133. E.H. v. Tirozzi, 735 F. Supp. 53 (D. Conn. 1990); V.W. v. Favolise, 131 F.R.D. 654 (D. Conn. 1990).

134. 64 Fed. Reg. at 12441 (to be codified at 34 C.F.R. §300.345(f)).

135. See, e.g. 64 Fed. Reg. at 12441 (“[t]he public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at the meeting....”) (to be codified at 34 C.F.R. §300.345(e)); 64 Fed. Reg. at 12448 (defining “consent”) (to be codified at 34 C.F.R. §300.500(b)(1)). See also Rowley, supra,458 U.S. at 205-06 (“...the importance Congress

attached to these procedural safeguards cannot be gainsaid...Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process...as it did upon the measurement of the resulting IEP against a substantive standard...[T]he congressional emphasis upon full participation of concerned parties throughout the development of the IEP...demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.”).

136. See 42 U.S.C. §2000d; 34 C.F.R. §100.3(b).

137. Cf. San Luis Valley (CO) Board of Cooperative Services, 21 IDELR 304 (OCR 3/4/94) (failure to notify parents of rights and procedural safguards in language they can best understand violated Title VI, §504 and Title II of the ADA); Ogden (UT) City School District, 21 IDELR 387 (OCR 3/23/94) (forms and notices in gneral); Dade County (FL) School District, 20 IDELR 267 (OCR 5/11/93) (failure to translate procedural safeguards notice into Spanish for limited English proficient parents and to provide information and explanations regarding daughter’s program violated Title VI, §504 and Title II);

138. 20 U.S.C. §1414(f); 64 Fed. Reg. at 12448 (to be codified at 34 C.F.R. §300.501(c)).

139. 64 Fed. Reg. at 12458 (to be codified at 34 C.F.R. §300.552(b)(2)).

140. Spielberg v. Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir. 1988); 64 Fed. Reg. at 12475 (to be codified at 34 C.F.R. part 300, App. A, para. 14).

141. Spielberg, supra, 853 F.2d at 259; c.f. Todd D., supra, 933 F.2d at 1580-81 (district court erred by ordering alteration of IEP goals so that IEP could be implemented at existing placement, rather than ordering school system to provide placement capable of implementing IEP as written).

142. 64 Fed. Reg. at 12471 (to be codified at 34 C.F.R. part 300, Appendix A, question 1).

143. 64 Fed. Reg. at 12458 (to be codified at 34 C.F.R. §300.552(a)).

144. See 20 U.S.C. §1415(b)(1); 64 Fed. Reg. at 12448 (to be codified at 34 C.F.R. §300.501(a)(1)); 34 C.F.R. §104.36 (implementing §504).

145. 20 U.S.C. §1414(d)(4)(A); 64 Fed. Reg. at 12440 (to be codified at 34 C.F.R. §300.343(c)).

146. See 20 U.S.C. §1415(b)(2); 64 Fed. Reg. at 12452 (to be codified at 34 C.F.R. §300.515).

147. 20 U.S.C. §§1414(b)(1), 1415(b)(3); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.503(a)). See also 34 C.F.R. §104.36 (regarding §504 notice requirements).

148. 20 U.S.C. §1415(c), (d); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §§300.503(b), 300.504).

149. 20 U.S.C. §1415(b)(4), (d)(2); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.503(c)(1)).

150. 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.503(c)(2)).

151. 20 U.S.C. §§1414(a)(1)(C), 1414(c)(3); 64 Fed. Reg. at 12449 (to be codified at 34 C.F.R. §300.505(a)). For procedures for when the parent refuses to consent, see 20 U.S.C. §1414(a)(1)(C)(ii) and 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.505(b)-(e)).

152. 20 U.S.C. §1415(b)(6).

153. 34 C.F.R. §104.36. Parents and others believing IDEA or §504 rights have been violated may take advantage of two other administrative complaint mechanisms, neither of which afford hearing rights. First, the regional offices of the U.S. Department of Education/Office of Civil Rights investigate complaints alleging violations of §504. For the pertinent regulations, see 34 C.F.R. §104.61, incorporating by reference 34 C.F.R. §§100.6-100.10. Second, state education agencies must adopt written procedures for resolving complaints alleging that a school system or other public agency has violated IDEA or the regulations implementing it. State complaint procedures must meet requirements set forth in the IDEA regulations. See 64 Fed. Reg. at 12464-5 (to be codified at 34 C.F.R. §§300.660-300.662). Such complaints were formerly known as EDGAR complaints, before the pertinent regulations were deleted from the Education Department General Administrative Regulations at 34 C.F.R. §76.780 et seq., modified, and moved to the IDEA regulations in 1992.

154. 20 U.S.C. §1415(f); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.507(a)).

155. See 34 C.F.R. §104.36.

156. 20 U.S.C. §1415(f).

157. 20 U.S.C. §1415(f)(3); 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.508). See also U.S. Department of Health, Education and Welfare "Nondiscrimination in Federally Assisted Programs: Policy Interpretation No. 6" (interpreting §504), 43 Fed. Reg. 36034 (August 14, 1978) (school board members may not serve as hearing officers).

158. 20 U.S.C. §1415(h); 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.509).

159. 20 U.S.C. §1415(h)(3), (4); 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.509(a)(5)).

160. 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.511).

161. 20 U.S.C. §1415(g); 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.510(b)).

162. 20 U.S.C. §1415(g); 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.510). See also 34 C.F.R. §104.36 (regarding §504 requirements).

163. 64 Fed. Reg. at 12451 (to be codified at 34 C.F.R. §300.511(b)-(d)).

164. 20 U.S.C. §1415(i)(2)(A); 64 Fed. Reg. at 12451-2 (to be codified at 34 C.F.R. §300.512).

165. 20 U.S.C. §1415(e)(1); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.506).

166. 20 U.S.C. §1415(e)(2)(A); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.506(b)(1)).

167. 20 U.S.C. §1415(e)(2)(A); 64 Fed. Reg. at 12450 (to be codified at 34 C.F.R. §300.506(b)(1), (c)).

168. 20 U.S.C. §1415(j); 64 Fed. Reg. at 12452 (to be codified at 34 C.F.R. §300.514).

169. See 20 U.S.C. §1415(k)(7); 64 Fed. Reg. at 12454-5 (to be codified at 34 C.F.R. §300.526). For an introduction to the discipline provisions of IDEA, see E. Ordover, Highlights of the Discipline Provisions of the Individuals with Disabilities Education Act Amendments of 1997, available from the Washington, D.C. office of the Center for Law and Education, 1875 Connecticut Ave., N.W., Suite 510, Washington, D.C. 20009; telephone: 202 986-3000; worldwide web: www.cleweb.org

170. 20 U.S.C. §1415(j); 64 Fed. Reg. at 12452 (to be codified at 34 C.F.R. §300.514).

171. Town of Burlington, supra, 471 U.S. at 372.

172. See, e.g., St. Tammany Parish School Board v. State of Louisiana, 142 F.3d 776 (5^th Cir. 1998); Susquenita School District v. Raelee S., 96 F.3d 78 (3^rd Cir. 1996); Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990); A.P. v. McGrew, 28 IDELR 19 (N.D. Ill. 1998); T.H. v. Bd. of Ed. of Palatine Community Consolidated School District, 29 IDELR 471 (N.D. Ill. 1998); Grace B. v. Lexington School Committee, 762 F. Supp. 416 (D. Mass. 1991); Kantak v. Liverpool Central School District, 16 EHLR 643 (N.D.N.Y. 1990); Department of Education of Hawaii v. Mr. and Mrs. S., 632 F. Supp. 1268 (D. Hawaii 1986); Blazejewski v. Board of Education of Allegany Central School District, 560 F. Supp. 701 (W.D.N.Y. 1983). The IDEA regulations issued on March 12, 1999 would limit the right to implementation of a favorable administrative decision pending appeal to hearing decisions rendered in a hearing conducted by the state education agency, and review decisions rendered by a state review official. See 64 Fed. Reg. at 12452 (to be codified at 34 C.F.R. §300.514(c)). This interpretation appears inconsistent with the language of 20 U.S.C. §1415(j), as well as the analysis underlying Town of Burlington and the other cited cases, particularly A.W. and T.H. But see Bd. of Oak Park and River Forest High School District v. Illinois State Bd. of Ed., 10 F. Supp. 971 (N.D. Ill. 1998) (using, without analysis, review decision rather than due process hearing decision as critical date for implementation purposes).

173. 20 U.S.C. §1415(i)(2)(B)(iii). The statute does not define "appropriate."

174. 471 U.S. 359, 105 S. Ct. 1996 (1985).

175. Id., 471 U.S. at 370, 105 S. Ct. at 2003.

176. 20 U.S.C. §1412(a)(10)(C)(iii); see also 64 Fed. Reg. at 12444-5 (to be codified at 34 C.F.R. §300.403).

177. Florence County School District Four v. Carter, 510 U.S. 7, 114 S.Ct. 361 (1993); see also Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1161 (5th Cir. 1986) (program in which parent enrolled child, "although it might not have been adequate under the EAHCA, was better than no summer program at all...Burlington rule is not so narrow as to permit reimbursement only when the interim placement chosen by the parent is found to be the exact proper placement required under the Act"); see also Garland Independent School District v. Wilks, 657 F. Supp. 1163, 1166-67 (N.D. Tex. 1987) (low income parent was entitled to reimbursement for furnishing those services intended, to the extent she could afford, to create a "facsimile" of the residential placement ultimately ordered by the court). See also 64 Fed. Reg. at 12444-5 (parental placement may be found appropriate by hearing officer or court even if it does not meet standards that apply to state and local education agencies) (to be codified at 34 C.F.R. §300.403(c)).

178. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389 (3rd Cir. 1996); Parents of Student W. v. Puyallup School District, 31 F.3d 1489 (9^th Cir. 1994); Pihl v. Massachusetts Dept. of Ed., 9 F3d. 184 (1st Cir. 1993); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied, 111 S. Ct. 1317 (1991); Burr v. Sobol, 863 F.2d 1071 (2nd Cir. 1989), vacated and remanded, 109 S. Ct. 3209 (1989), on remand, aff'd. per curiam, 888 F.2d 258 (2nd Cir. 1989), cert. denied 58 U.S.L.W. 3545 (2/27/90); Jefferson County Board of Education v. Breen, 853 F.2d 853 (11th Cir. 1988); Miener v. Missouri, 800 F.2d 749 (8th Cir. 1986); see also Jackson v. Franklin County School Board, 806 F.2d 632,631 (5th Cir. 1986) (on remand "...the district court must determine what damages, either monetary, or in the form of remedial education services...would be appropriate at this time"). For two pre-Burlington cases awarding compensatory education, see Max M. v. Thompson, 592 F. Supp. 1450 (N.D. Ill. 1984); Campbell v. Tallageda County Board of Education, 518 F. Supp. 47 (N.D. Ala. 1981).

179. See, e.g., Meiner, 800 F.2d at 753; Breen, 853 F.2d at 857-58; Burr, 863 F.2d at 1078.

180. See Mrs. C. v. Wheaton, 916 F. 2d 69, 75 (2nd Cir. 1990).

181. 503 U.S. 60 (1992).

182. Id. at 70-71.

183. See W.B. v. Matula, 67 F.3d 484 (3^rd Cir. 1995); Walker v. District of Columbia, 969 F. Supp. 794 (D.DC 1997) (damages available in IDEA/§1983 action, but not directly under IDEA); Emma C. v. Eastin, 985 F. Supp. 940 (N.D. Cal. 1997) (damages available directly under IDEA as well as for IDEA/§1983 claim); Padilla v. School District No. 1, 29 IDELR 870 (D. Colo. 1999); Capallino v. Hyde Park Central School District, 30 IDELR 253 (S.D.N.Y. 1999); Searles v. Bd. of Ed. of Ellenville Central School District, 29 IDELR 787 (N.D.N.Y. 1999).

184. See, e.g., Hoekstra v. Independent School District No. 283, 103 F.3d 624 (8^th Cir. 1996); Sellers v. School Bd. of Manassas, 141 F.3d 524, n.3 (4th Cir. 1998), cert. denied, ___ U.S.L.W. ___, (dismissing Franklin holding in one-sentence footnote); Wenger v. Canastota Central School District, 26 IDELR 1128 (N.D.N.Y 1997).

185. See, e.g., W.B. v. Matula, supra; Sellers, supra; Wenger, supra; Walker, supra; Asbury v. Missouri Dept. of Elementary and Secondary Education , 29 IDELR 877 (E.D. Mo. 1999) T.J.W. v. Dothan City Bd. of Ed., 26 IDELR 999 (M.D. Ala. 1997); McKay v. Winthrop Bd. of Ed., 26 IDELR 1100 (D. Maine 1997); Jonathan G. v. Caddo Parish School Board, 875 F. Supp. 352 (W.D. La. 1994).

U.S.C. §794a(a)(2) provides that "[t]he remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 [which bars discrimination on the basis of race, color or national origin in programs or activities receiving Federal financial assistance]...shall be available to any person" aggrieved by violations of §504. Title IX of the Education Amendments of 1972, which bars gender discrimination in education programs receiving federal funds, similarly incorporates Title VI remedies. As noted above, the Supreme Court held in Franklin that damages are available to remedy Title IX violations.

186. 20 U.S.C. §1415(i)(3)(B) - (G); see also 64 Fed. Reg. at 12452 (to be codified at 34 C.F.R. §300.513).

187. See, e.g., Moore v. D.C. Board of Education, 907 F.2d 165 (D.C. Cir.), vacating 886 F.2d 335, cert. denied, 111 S. Ct. 556 (1990); McSomebodies v. Burlington Elementary and Secondary School District, 886 F.2d 1558 (9th Cir. 1988), supplemented March 2, 2990, 897 F.2d 974; Mitten v. Muscogee County School District, 877 F.2d 932 (11th Cir. 1989), cert. denied, 110 S. Ct. 1117 (1990); Duane M. v. Orleans Parish School Board, 861 F.2d 115 (5th Cir. 1988); Eggers v. Bullitt County School District, 854 F.2d 892 (6th Cir. 1988).

188. See, e.g., Barlow-Gresham Union High School District No.2 v. Mitchell, 940 F.2d 1280 (9th Cir. 1991); Shelly C. v. Venus Independent School District, 878 F.2d 862 (5th Cir. 1989), cert. denied, 110 S. Ct. 729 (1990).

189. The 1997 amendments to IDEA give states the discretion to bar attorneys fees for mediation conducted prior to the filing of a complaint. 20 U.S.C. §1415(i)(3)(D)(ii).

190. 29 U.S.C. §794a(b).

191. 20 U.S.C. §1415(m)(1)(A), (B); 64 Fed. Reg. at 12453 (to be codified at 34 C.F.R. §300.517(a)).

192. 20 U.S.C. §1415(m)(1)(D); 64 Fed. Reg. at 12453 (to be codified at 34 C.F.R. §300.517(a)).

193. 20 U.S.C. §§1414(d)(1)(A)(vii)(III), 1414(m)(1)(C); 64 Fed. Reg. at 12442, 12453 (to be codified at 34 C.F.R. §§300.347(c), 300.517(a)(3)).

194. See 20 U.S.C. §1415(m)(2); 64 Fed. Reg. at 12453 (to be codified at 34 C.F.R. §300.517(b)).

195. The IDEA regulations issued March 12, 1999 leave these questions to state law, stating in pertinent part that “[i]f, under State law, a State has a mechanism to determine that a student who has reached the age of majority...and has not been determined incompetent under State law, does not have the ability to provide informed consent with respect to his or her educational program, the State shall establish procedures for appointing the parent....” 64 Fed. Reg. at 12453 (to be codified at 34 C.F.R. §300.517(b)). Further complicating matters, in its Notice of Interpretation accompanying the regulations, the Department of Education states that “[t]he IDEA Amendments of 1997 also permit, but do not require, States to establish a procedure for appointing the parent....” 64 Fed. Reg. at 12473 (to be codified at 34 C.F.R. part 300, Appendix A, question 4.