New Special Education Policies Take Effect

November 5, 2007Duke Law News

New special education policies were approved by the state Board of Education November 1, 2007. They became effective upon approval. The new state policies were designed to comply with changes at the federal level, which went into effect July 1, 2005. They replace the previous “Procedures Governing Programs and Services for Children with Disabilities.”

One change that has received considerable attention is the removal of the requirement for what are known as “short term objectives or benchmarks” on a child’s Individualized Education Program (IEP). Prof. Jane Wettach, director of the Children’s Law Clinic, cautions parents that this change will require them to be especially vigilant about their child’s educational performance. IEP’s will continue to contain annual goals, but those goals will no longer be required to be broken down into smaller, more concrete objectives. North Carolina had previously determined that it would retain short-term objectives statewide, but reversed that position. Individual school districts retain the authority to require the short-term objectives at the local level, however.

Although the law requires that annual goals be measurable, they often are not, Prof. Wettach said. “Many IEP’s contain goals that are essentially meaningless, such as ‘The student’s math skills will improve,’” she commented. “If there is no statement about how or to what extent the math skills will improve, there is no way to know at the end of a year whether the child made meaningful progress.” Because children with disabilities are often behind their peers due to impairments that interfere with their learning, the usual tools for measuring progress are often not precise enough.

Most of the other changes reflected in the new Policies have been in effect for some time, but had not been incorporated into the formal Policies. Many of the changes are fairly technical, including the standards used to determine the existence of a disability. For example, school districts may now use a “response to intervention” process before considering a child to have a specific learning disability. This process allows regular classroom teachers to incorporate research-based interventions in the classroom to provide extra support for children who are not performing well in particular areas. If the child responds well to the interventions, they are continued and the child is not referred to the special education program. If the interventions are not successful, the child can then be found to be eligible for special education services.

Another change incorporates new provisions of North Carolina law passed recently by the North Carolina General Assembly regarding suspended students. Disabled students who are suspended are entitled to continued educational services during the period of their suspensions. The new law requires that disabled students who are suspended must be placed in the “least restrictive environment” to receive the continued educational services. The students may not be placed at home unless there is no less restrictive placement for them to receive their education. If a student is placed at home, that placement must be reviewed on a monthly basis. Educational services during a period of suspension must be sufficient to allow the student to make reasonable progress toward his IEP goals and toward getting an overall sound, basic education.

New policies about maximum class size will go into effect July 1, 2008. The Exceptional Children Division of the N.C. Department of Public Instruction had originally proposed that all maximum class size rules be omitted from the new Policies. This change was widely criticized by parents of children with disabilities, and the Division changed its position. Class size requirements are no longer set by the category of disability, but rather are set by the intensity of service the children require and the educational level of the students.

Other changes involve new terminology. For example, a child with severe emotional or behavioral disabilities was formerly called “Behaviorally-Emotionally Disabled” with the acronym “BED.” A child with the same disabilities will now be called “Seriously Emotionally Disabled.” Similarly, a child with very low cognitive functioning was previously called “Mentally Disabled,” but will now be called “Intellectually Disabled.”

The federal special education law, the Individuals with Disabilities Education Act was reauthorized and updated effective July 1, 2005. Federal regulations implementing the law were effective October 14, 2006. The North Carolina statute was rewritten to comply with the federal law in 2006, with some additional provisions added in 2007. The new Policies incorporate all these changes.