New Federal Regulations for Schools - Clarifies Language and Requirements Related to Special Education

Best Best & Krieger LLP

Best Best & Krieger LLP

Recently, the U.S. Department of Education published regulations to implement Rosa’s Law, legislation enacted in 2010 to replace the term “mental retardation” with “intellectual disability” in federal laws. These laws include the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, the Elementary and Secondary Education Act and the Higher Education Act. The regulations now ensure consistency of language with the federal statute and the implementing regulations. A copy of the new regulations, which become effective Aug. 10, can be found here:
This action follows up on the June 30 publication of final regulations that make technical and clarifying changes to Parts B and C of the IDEA. These changes reflect revisions made by the Every Student Succeeds Act’s 2015 reauthorization of the ESEA. These regulations went into effect immediately. A summary of all of the new language can be found here:
These new regulations clarify that a “regular high school diploma” refers to the standard high school diploma awarded to the preponderance of students in the state and is not aligned with alternate academic achievement standards. The language further clarifies that a “regular high school diploma” does not include a recognized general equivalency diploma, certificate of completion, certificate of attendance, or similar lesser credentials.
The more substantive revisions relate to alternative assessments, and provide affirmative obligations on the part of IEP teams. The regulations specify that the state guidelines for participation in alternate assessments apply specifically to children with disabilities who are students with the most significant cognitive disabilities. Perhaps more importantly, the regulations also now specify that a state or local educational agency must:

  1. Provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and alternate academic assessment standards. These include any effects of state and local policies on a student’s education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma; 
  2. Not prevent students with the most significant cognitive disabilities from attempting to complete the requirements for a regular high school diploma; 
  3. Inform parents that their child’s achievement will be measured based on alternate assessment standards; and 
  4. Inform both IEP teams and parents how a student’s participation in alternate academic assessments may delay or affect the student’s ability to complete the requirements for a regular high school diploma. 

Given this new direction, school district staff should be reminded to continue to use the correct terminology in all communications about students with intellectual disabilities. Additionally, school districts should carefully review and revise, as necessary, their existing board policies, administrative regulations, handbooks and/or IEP forms to update all language with revised statutory citations, and ensure that internal practice reflects the requirements of the new provisions described above. Staff facilitating IEP meetings should be reminded of the need to ensure sufficient parental participation throughout the IEP process, which now must include direct discussion at necessary meetings about their child’s appropriate involvement in alternative assessments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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