Proposed Revisions to Article 7 - Talking Points

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The Arc of Indiana supports the following talking points on proposed revisions to Article 7, developed by Family Voices. 
 

EARLY CHILDHOOD
511 IAC 7-36-5  Early Childhood
New proposed language will remove the minimum number of hours, caseloads and ratios to read:
The length and frequency of the instructional day for early childhood students with disabilities shall be based on the developmental and educational needs as determined by the student's case conference committee.  A public agency may not unilaterally limit the length and frequency of the instructional day based on categories of disability, age of students, or administrative convenience.

Currently, school districts are supposed to provide a minimum of 12.5 hours/wk for full time students age 3-5. The issue of what determines "full time" status is part of the discussion and will also be a case conference decision. Article 7 currently states there should be no more than 10 students with disabilities per class. For a class of 1-8 children
with disabilities, there should be one teacher and one full time aide, and a class of 9-10 should have an additional aide. It is important to note that current ratio and class size is based only on children with IEPs.  Typically developing peers who are integral and an important part of preschool class rooms are not factored in to the ratio and staffing requirements. Since districts do not typically provide preschool to all children, it's important to address the inclusion of typical peers.

A parent may wish to share how ratio- class size limits and school days impact their child.

NON PUBLIC SCHOOLS
511 IAC 7-34-1 Special education and related services for parentally placed students in nonpublic schools or facilities

IDEA made it clear that the Local Education Agency that serves a parentally placed private school student is the LEA where the private school is located.  This includes
out-of-state private school students who attend private schools in Indiana.  IDEA did not change parent's right to request an evaluation for special education from their corporation of legal settlement.

Parents should understand the obligations of their local school district as required by IDEA so they can be sure their child is receiving services to the maximum extent allowed. A private school does not have to offer a Free Appropriate Education (FAPE), only access to special education services.

Additional information on this complicated issue can be found at:
Question and Answer on Children placed in Private Schools by their Parents IDEA 2004
http://www.ed.gov/policy/speced/guid/idea/faq-parent-placed.pdf ; and

Students Placed in Private Schools- from NCLD
http://www.ncld.org/content/view/910/456094/

A family may wish to share how these changes impact their options and child's educational placement and experience.

511 IAC 7-40-8 Reevaluation
There is no longer a requirement to reevaluate a child every three years unless there is a specific request. This means that current IEP's may not reflect changes in the child's strengths and weaknesses. A parent would still be able to request these reevaluations, but they would not be automatically offered.

A family may wish to share how timely reevaluation has supported appropriate services for their child; discussion on how a relevant reevaluation allows for deeper understating as a child grows and moves through school.  Families may also wish to discuss the burden that is placed on families when they must seek out reevaluations instead of being reminded.

Families are encouraged to inquire about the State's intentions regarding the "three year IEP"

Discipline
511 IAC 7-44-2 Disciplinary change of placement and 511 IAC 7-44-5: Manifestation determination
The Indiana State Advisory Council has tentatively approved the new language that will allow the school to place the child in an interim alternative setting and places the burden on the parent to request expedited due process if they are in disagreement. This is allowable under IDEA because it is consistent with federal law. However, states have the option to make their laws STRONGER than IDEA. Indiana has the option to maintain the provision that decisions regarding discipline remain a case conference decision, and to maintain the 45 day calendar timeline rather than the 45 school day timeline.

Families should speak to the experience of children and families dealing with a change of placement and the burden created by requiring families to seek a due process solution instead. 
They can also share how removing this decision from a case conference committee fundamentally changes how decisions are made.

Board of Special Education Appeals
511 IAC 7-45-9 Due process hearing appeals
This section contains the language for the Board of Special Education Appeals. The council decided to maintain the current language of a two-tiered system but will pay careful attention to public comments
at the forums. Currently, a family or school wishing to appeal the due process decision of an Independent Hearing Officer (the first deciding party) must go before the Board of Special Education Appeals; only after the review of the BSEA may either party proceed to state or federal court with their appeal.The BSEA is not a federally mandated step. In fact, the majority of states do not require this step; instead appeals go directly to state or federal court.

Various individuals have raised the following concerns about the two-tiered system:
 - Creates an unnecessary step, Brings additional cost to all parties, Board members are not required to have legal training, No qualifications are required in statute. Board currently has ability to opt not to hear arguments
- Creating a closed door/nontransparent system
-  Concerns about impact appeals in state or federal court because Court will defer to the decision of the BSEA, a three-member panel who does not attend the hearing and conducts its review without the presence of the parties.

Additional information about the board can be found at:
http://www.doe.state.in.us/legal/appeals.html ;  and http://www.dphilpotlaw.com/html/bsea.html

Families can share their thoughts on this two tier system and its implications

Training
511 IAC 7-35-3 Technical assistance and training
(a) Each public agency must carry out activities to ensure that public agency teachers and administrators:
(1) are fully informed about their respective responsibilities for implementing this article;
(2) are provided with technical assistance and training necessary to assist them in this effort; and
(3) are provided with the necessary knowledge and skills to implement each student's individualized education program
(b) A student's case conference committee, during the development, review, or revision of a student's individualized education program, must consider, pursuant to 511 IAC 7-42-4(g)(2),
whether technical assistance and training are necessary to provide public agency personnel with the knowledge and skills necessary to implement the student's individualized education program.
(c) If the case conference committee determines that technical assistance and training are necessary under subsection (b), the case conference committee must document:
(1) the types of technical assistance and training that will be provided; and
(2) the intended outcomes of the technical assistance and training. Intended outcomes can be related to public agency personnel, the student, or both.

Families may wish to advocate that ALL personnel, including bus drivers, cafeteria workers, etc are adequately trained in a child's unique needs.

511 IAC 42-6    Written Notice by the public agency and parental consent
f) After the public agency has provided written notice, the public agency must obtain written consent form the parent in the following situations:

1) Before the initial provision of special education and related services to the student. This encompasses the initial individualized education program and the initial educational placement
2) Before implementation of a revised individualized education program that results in a change of educational placement as defined in 511 IAC 7-32-15.

This means that if the school decides to reduce related services, change frequency and duration of time spent in a resource setting, change curriculum provided in a maintained setting, change assistive technology support, etc,  a case conference can make this change  without parental consent because it does not result in a change in placement. After exercising their option to a meeting as specified in g 1) (below) Parents will have to seek mediation and/or due process to argue it results in a loss of FAPE. Failure to sign the revised IEP will not stop the changes. The school will have the power to do it without obtaining written consent.

g) After a public agency provides written notice, but written parental consent is not required, the parent may challenge the action proposed or refused by the public agency by doing any of the following:

1) Requesting a meeting with an official of the public agency who has the authority to facilitate the disagreement between the parent and the public agency regarding the action proposed or refused by the public agency;
2) Initiating mediation under 511 IAC 7-45-2; or
3) Requesting a due process hearing under 511 IAC 7-45-3.

The proposed language for a "change in placement" is much narrower than it has been in the past. It has not been voted on by the SAC yet, but is being provided here so families can understand what it will entail if not modified:

511 IAC 7-32-15    Change of educational placement  Sec. 15.
(a) "Change of educational placement" means that a student's placement has changed on the continuum of placement options set forth in 511 IAC 7-42-9(e) and (f).
(b) If a public agency proposes to change or refuses to change a student's educational placement, the public agency must provide the student's parent with written notice that meets the requirements of

511 IAC 7-42-6
(c) A change of educational placement:
(1) does not occur because a student's individualized education program will be implemented in a different location; and
(2) is different from a disciplinary change of placement described in 511 IAC 7-44-2.