Legal Alert:

According to a recent blog post on the JDSupra website, nearly 14 years after President Bush signed the IDEA Improvement Act of 2004, California’s special education regulations have been updated and became effective July 1, 2014. The revisions align what the California Department of Education ("CDE") has referred to as "old, out-of-date regulations" with existing state statutes and federal statutes and regulations.

Key Change: Updated Eligibility Criteria in Section 3030

Autism

The new regulation deletes the term "autistic-like behaviors" and adds the term "characteristics often associated with autism." (5 CCR 3030(b)(1).) The new list of "characteristics often associated with autism" replaces the former seven "autistic-like behaviors but is highly similar: (1) engagement in repetitive activities and stereotyped movements; (2) resistance to environmental change or change in daily routines; and (3) unusual responses to sensory experiences. CDE explained that aligning California’s criteria with federal requirements removes confusion among educators when state and federal eligibility requirements for determining whether a student has autism are inconsistent" and helps "ensure that students with autism are appropriately identified, and receive the appropriate services for their needs.

Significant Learning Disability (SLD)

Under the new regulation, in determining whether a child has an SLD, the public agency "may consider" if he or she has a severe discrepancy between ability and achievement (5 CCR 3030 (b)(10)(B)); or 2) if his or her achievement is inadequate pursuant to a "response to intervention" or "pattern of strengths and weaknesses" analysis (5 CCR 3030(b)(10(C)). CDE has explained that this change aligns with Title 34, Code of Federal Regulations, section 300.307, which provides that states must not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability; mustpermit the use of a process based on the child’s response to scientific, research-based intervention; and may permit the use of other alternatives.

Additional Eligibility Categories under Section 3030

The regulation deletes what CDE references as "out-of-date" definitions of Deaf-Blindness and Deafness to align with federal requirements for students in these eligibility categories. (5 CCR 3030 (b)(2) and (b)(3).) A sixth criteria of "schizophrenia" has been added to the determining factors for eligibility under the category of "emotionally disturbed" or "ED." It also includes language that the "ED" eligibility category does not apply to children who are "socially maladjusted." (5 CCR 3030 (b)(4)(F).) The eligibility category of "mental retardation" has been deleted and replaced with "intellectual disability" (5 CCR 3030 (b)(6)); and eligibility criteria under the category of "traumatic brain injury" has been expanded to be consistent with federal regulations. (5 CCR 3030 (b)(12).)

Hughes Bill Repeal

Hughes Bill language repealed by AB 86 last year has been deleted, bringing the state regulations into alignment with the federal regulations. As a result, the terms "behavioral emergency," "serious behavior problem," "behavioral intervention," behavioral intervention case manager," and "behavior intervention plan" have all been removed from the amended regulations. Section 3051.23 has been added to align with Education Code section 56520 and establishes the necessary qualifications for persons who design or plan behavioral interventions.

Related Services

Language which previously defined "related services" as "designated instruction and services" in prior Section 3001 (aa) has been deleted. CDE commented that the definition of related services already exists in Education Code section 56363 and in the federal regulations, obviating the need to repeat the definition in the state regulations. (5 CCR 3051.)

Additional Amendments to Section 3051

Section 3051 et seq. has been amended to remove the requirements for "certification" of professionals providing related services, and replaces this term with the word "qualification." As amended, Section 3051 et seq. now specifies the professional requirements of personnel providing various related services "to all students with IEPs," including those placed in nonpublic schools. Section 3051.75 retains the regulatory section on "vision therapy" (despite some commentators’ objections) to preserve state standards for this related service; and Section 3051.10(a) clarifies that school psychologists are authorized to perform counseling services to students with IEPs.

Section 3051.21 defines "music therapy" in accordance with state standards set forth by the Certification Board for Music Therapists, and defines the necessary qualifications for personnel providing this related service. While CDE felt it was important to give clarification to this related service, some commentators felt the regulatory section on "music therapy" should be deleted altogether.

Section 3051.1 replaces the word "aide" with "assistant" in alignment with Education Code section 56363(b)(1). The regulation now states that "speech and language pathology assistants" may work under direct supervision of a qualified speech and language pathologist ("SLP") if 1) it is specified in the IEP, 2) there are no more than two assistants supervised at a time, and 3) the use of assistants is not used to increase the SLP’s caseload beyond 55 students.
Section 3051(4) now provides that a regular classroom teacher may provide home hospital instruction, as well as a special education teacher. CDE explained that this change allows for flexibility when a disabled child’s IEP provides for the child to be educated in general education classes.

Other Important Changes

• The definition of "primary language" has been changed to substitute "used" in place of the previous term "spoken." Commenters to the amendments noted this change is more inclusive toward the deaf and hard of hearing community, as it includes non-spoken modes of communication such as sign language. (5 CCR 3001 (q).)
• The amended regulation on "specialized physical health care services" has been augmented to include "catherization, gastric tube feeding, suctioning or other services" consistent with Education Code section 49423.5(d). (5 CCR 3001 (s).)
• The regulation governing assessments clarifies that the qualifications for assessors contained in Education Code section 56320 apply equally to "reassessments." (5 CCR 3023 (a).)
• The new regulations also incorporate more user friendly language, including the use of well-known acronyms "LEA" "IEP" and "SELPA."
• The term "pupil" is replaced with the word "child" throughout the regulations to make it consistent with federal law. The word "disabled" has been substituted for "handicapped."
• Extended school year ("ESY") services has been amended to be consistent with federal law, which allows state educational agencies to set ESY standards for their states. The new regulation deletes obsolete language which set forth the maximum number of school days for reimbursement, but keeps intact California’s ESY standard of a minimum of 20 instructional days. (5 CCR 3043.)

How IEPs might change

School district lawyers advise their clients that IEP teams must know and understand the "characteristics often associated with autism" in evaluating whether a child qualifies for special education under the eligibility category of autism. IEP teams should also carefully evaluate whether a child meets the eligibility criteria for SLD under the other prescribed evaluation methods, and must not adhere to a "severe discrepancy" model. (School districts often still analyze SLD under this standard). If the IEP team determines a disabled child requires home hospital instruction, school districts will probably now attempt to assign a regular classroom teacher.
The amended regulations can be found at www.oal.ca.gov/ccr.htm.