November 2006
WHY STATE REGULATIONS MATTER
As of October 13, IDEA 2004 and the new federal regulations supersede
any current state regulations which are not in compliance with
the federal requirements. Any current state regulations which were
not affected by the recent changes in federal law and regulations
remain in effect pending enactment of new state regulations. Although
the compliance requirements of state regulations may not be less
than those of the federal regulations, they may differ in those
instances where the federal regulations specifically allow them.
In addition, state requirements may be more stringent than the
federal regulations.
EXAMPLES
1. Exemption to federal regulations
Federal regulation 300.301© requires that an evaluation
must be conducted within 60 days of receiving parental consent
OR A TIMELINE ESTABLISHED BY THE STATE. The state timelines may
be shorter or longer than 60 days.
2. The possible impact of expansion of state regulations on students
with specific learning disabilities can be seen from the following
analysis of federal regulation 300.307: Specific Learning Disabilities:
Federal regulation 300.307 says that states
must adopt criteria for determining if a child has a specific
learning disability and that each local school district within
the state must follow those criteria. The intent is to assure uniformity of criteria across
the state. It also encourages states to have more restrictive eligibility
requirements. A state
a) Must Not Require the Use of a Severe
Discrepancy Between Intellectual Ability and Achievement (However, OSEP has made it clear that state
regulations may PROHIBIT the use of a severe discrepancy).
b) Must Permit the Use of a Process Based
on the Child's Response to Scientific, Research Based Intervention (In this case the
federal regulations go beyond the law, which says "a local Education
agency MAY USE a process that determines if the child responds
to scientific, research-based intervention as part of the evaluation
procedure". In the special education research literature,
the process mentioned in this language is generally considered
as referring to Response to Intervention (RTI) models." [See
OSEP handout] Although the federal regulations use the term "must
permit", state regulations could REQUIRE the use of a process
based on response to intervention.
c) May Permit the Use of Other Alternative Research-Based Procedures
WHY PARTICIPATE IN THE STATE REGULATIONS REVIEW PROCESS
State regulations
can be good or bad for students with disabilities. It is vital
to recognize that although many advocates rely solely on federal
law and regulations, school administrators must be conversant
with and implement the requirements of IDEA based on federal AND
state regulations. The preceding examples cover only a small part
of the changes made by the new law and regulations. Detailed analyses
of the final regulations are posted on the websites of many national
organizations.
Because the process for issuing regulations varies from state
to state, it is essential to work with other state groups committed
to improving the education for students with disabilities to
1)
compare the current state regulations with the federal ones;
2)
track the state's regulatory process; and
3) provide input on
decisions which will be made.
Federally funded parent training and information in each state
should have information on these topics.
WHERE TO GET INFORMATION ON THE PROCESS
Each state's regulatory
process should be posted on the state department of education
web site. Another useful source of information is the National
State Policy Database (NSPD) from which federal and state special
education laws and regulations can be downloaded. http://nspd.rrfcnetwork.org/search/searcher.php |
