Monday, January 14, 2008

Article 7 position paper

Family Voices Indiana is a coalition of individual families, local
support groups and parent leaders from throughout Indiana and across
the disability spectrum. It is dedicated to ensuring that the
perspective of individuals with special needs and their families is
clearly heard and a critical part of all policy and procedure
decisions that impact the systems and services of which they are a
part. Family Voices recognizes that each family will have a unique
perspective and experience, and it would not be accurate to state that
all families share uniform views on Article 7. However, Family Voices
has sought input from across our constituency, and this position paper
reflects the consensus on these issues.

Please find attached a listing of organizations and individuals who
have endorsed this position paper as signatories.

Article 7 is Indiana's code for the Individuals with Disabilities
Education Act and the current revision process related to the
reauthorization of IDEA '04. States, including Indiana, are required
to ensure that their state code meets the provisions of IDEA. While
it is permissible for states to adopt code that goes beyond IDEA,
political reality dictates that Indiana code goes beyond IDEA only
very selectively. Family Voices Indiana supports going beyond federal
law as recommended below when it is clearly in the interest of
providing appropriate services for Hoosier students receiving special
education supports and services.

The IDEA was originally enacted by Congress in 1975 to ensure that
children with disabilities have the opportunity to receive a free
appropriate public education, just as their peers do. Changes to
Article 7 should be evaluated in terms of how they impact students
above all other considerations. It is critical that Article 7
continues to provide a structure which ensures that all Hoosier
students receive an appropriate public education.

511 IAC 7-32-14 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.

The definition of change of placement is a critical component of
Article 7 since the proposed language limits requirements for parental
consent to those that are defined as Change of Placement. Indiana's
proposed definition of change of placement has less protection than
what is offered by the federal law. The proposed definition
eliminates the requirement for consent for a variety of circumstances
that would significantly change a child's educational and related
services. Parents should be a part of decisions related to the finite
details of student's plans and provisions of their services. To
strengthen home-school partnerships and ensure effective
implementation of Individual Education Plans (IEPs), families need to
be a part of all planning and in a position to support the plan.

Family Voices Indiana advocates for a "change of placement" definition
that includes any change in location, length, frequency or duration of
services specified in a student's individual education plan(IEP)
unless the change is contained in the currently agreed-upon IEP.

7-33-2 Public schools' special education programs: organizational and
administrative structures
Sec.2 (b) Unless a student graduates from high school with a regular
diploma, the right to a free appropriate public education ends at the
conclusion of the school year in which the student turns 22 years of
age. However, the case conference committee may determine that a
student will leave school earlier.

The previous practice of dismissing a student on his/her 22nd birthday
was unnecessarily disruptive to a student's IEP. Additionally, it
makes it difficult for a student to identify with a "graduating class"
of non-disabled peers. The provision to allow students to remain in
school through the school year in which they turn 22 is essential to
an appropriate program.

Family Voices Indiana supports the proposed language which ensures
services to a student through the school year of their 22nd birthday.

511 IAC 7-35-3 Technical assistance and training
(a) Each public agency must carry out activities to ensure that public
agency personnel
and administrators:
(1) are fully informed about their respective responsibilities for
implementing this
(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
(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.

Students interact with a variety of school personnel within the
provision of services, and it is critical that those personnel receive
appropriate training and technical assistance. The specific skills
and knowledge required to meet individual student needs often exceed
the scope of general and even special education professional
pre-service training. To ensure that staff are supported and equipped
to meet student needs, appropriate student-specific training must be

Family Voices Indiana supports the provision that all public agency
personnel receive appropriate training and technical assistance.

511 IAC 7-36-4 Extended School Year
(e) 2) Whether the student is at a critical point of skill acquisition
or readiness,
and the student's ability to acquire the skill will be lost or greatly
reduced as a result of an interruption of services.
3) Whether there are special circumstances that make extended school
year services necessary to the provision of a free appropriate public

It is important to note that not every student demonstrates a need for
extended school year services, and not every student that demonstrates
a need will access services. However, the expanded questions provide
an important structure within which to evaluate the student's unique

Family Voices Indiana supports current Article 7 Extended School Year
(ESY) language to include (e) 2 and 3 as included in the ESY technical
assistance document.

511 IAC 7-36-5 Early Childhood
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, 12.5 hours per week is considered a full-time program for
students age 3-5. This does not prevent a case conference from
determining that an individual student receives more or less services
based on their individual needs.
Sec. 5 (b) The number of students assigned to an early childhood
teacher is subject to the requirements of 511 IAC 7-32-13.
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. Proposed language
would rely upon case conference decision to determine appropriate
staffing levels. The reasoning behind this language is flawed, as
privacy issues prevent parents from knowing the needs, diagnosis and
labels or even number of other students in the class, leaving the
parent unable to advocate for appropriate staffing.

Family Voices Indiana recommends that both the definition of full time
as 12.5 hours and the designated staff ratios remain as part of
Article 7.

511 IAC 7-36-7 Instructional curricula, materials, equipment, and
assistive technology devices and services
(c) A student's case conference committee must determine whether the student
needs instructional materials, including print instructional materials
as defined in 511
IAC 7-32-78, in an accessible format.
(d) For purposes of this section, an accessible format means an
alternate approach
to presenting information to a student with a disability. Accessible
formats may be
purchased ready for use by students with disabilities, developed for
use by students
with disabilities, or modified from existing materials in accordance
with federal and
state copyright laws. Accessible formats include, but are not limited to:
(1) Braille.
(2) Audio.
(3) Digital text.
(4) Large type.
(5) Tactile graphics.
(6) Video.
(7) Captions.
(8) Audio descriptions.
(4) Audio format.
(5) Digital text format.

Assistive technology and accessible formats are key components of
access to curriculum and learning. The National Instructional
Materials Accessibility Standards (NIMAS) provide guidance to ensure
that accessible formats are available to students. Limiting the
provision of materials in accessible formats to curriculum, and not
including assessments, creates significant barriers to learning and
evaluation. Students utilizing existing technology to access
curriculum on a daily basis should, logically, be able to complete
assessments in the same formats. Failure to include language that
specifies this not only impacts students' involvement and success in
the assessment process, but also impacts their access to and use of
alternative formats on an ongoing basis.

Family Voices Indiana recommends that language regarding accessible
formats should include both curriculum and assessment materials.

511 IAC 7-40-4 Consent
The narrowing of the definition of Change of Placement (511 IAC
7-32-14) is deeply concerning as it limits the cases where parental
consent is required to changes along the continuum of placement. Of
further concern is the fundamental change by which families who do not
agree with proposed non-continuum changes are to seek resolution. The
requirements that families must request meetings, initiate mediation
and request due process creates a tremendous burden for families and
thus an "unlevel" playing field wherein schools and their vast legal
resources hold a tremendous advantage over individual families.

The definition of change of placement should be expanded to reflect
current Article 7 practice. Additionally, Family Voices Indiana
proposes that when families and schools do not reach agreement on
issues beyond change of placement, families are required to seek a
meeting; if resolutions can not be reached at the meeting the change
would not occur. Schools may initiate mediation and/or request due
process to resolve an impasse. Family Voices Indiana supports the
provision that would allow changes to be made without parental
agreement or consent when schools can clearly document that good faith
efforts to communicate with the family have not been effective.

511IAC 7-40-5 Initial Evaluation
Sec. 5 (d) The initial educational evaluation must be conducted and
the case conference committee convened within forty-five (45)
instructional days of the date written parental consent is received by
the certified personnel in accordance with 511 IAC 7-40-4(g). The
timeframe does not apply if:
The parent of a student repeatedly fails or refuses to produce the
student for the evaluation; or a student enrolls in a school of
another public agency after the
relevant timeframe in subsection (a) has begun, and prior to
completion of the evaluation, if:
(A) the subsequent public agency is making sufficient progress to
ensure a prompt completion of the evaluation: and (B) the parent and
subsequent public agency agree to a specific time when the evaluation
will be completed.

The previous timeline on 60 instructional days for the completion of
initial educational evaluation too often meant that the evaluation
process for students might span two school years. The change to 45
instructional days, while not a complete resolution of this issue,
will help to improve to the timeliness of evaluation for some
students. Additionally, (i)'s provision that the educational
evaluation be made available to parents five days prior to a scheduled
case conference committee meeting serves to ensure that families have
the opportunity to review reports prior to the meeting and are able to
be effective partners in the process.

Family Voices supports proposed language which includes the 45 day
timeline, and the provision to have evaluation reports available for
parents five days prior to the case conference.

511IAC 7-42-2 Notice of Case Conference Committee
Sec 2 (a)A case conference committee meeting must be scheduled at a
mutually agreed upon date, time, and place. If neither parent can
attend in person, the public agency must use other methods to ensure
parent participation, including an individual or conference telephone
call or video conference.

Families often report that the "mutually agreed upon" provision for
the scheduling of meeting is not always a functional reality. The
critical nature of parental involvement in the planning of service
plans necessitates that all school partners legitimately seek to
partner with families in the scheduling of Case Conference Committee

The Department of Education should ensure procedural safeguards and
required meeting notices include language that informs families of
their right to request times, dates and locations to meet their
scheduling needs, as well as which participants are required to attend
Case Conference Committee meetings.

511 IAC 7-42-7-Written notice by the Public Agency and Parental Consent
Sec. 7 (a) Written notice that meets the requirements of subsection
(b) must be given to the parent of a students with a disability before
the public agency:
(1) Proposes to initiate or change the identification or educational
placement of the student or the provision of a free appropriate public
education to the student; or
(2) Refuses to initiate or change the identification, educational
placement of the student or the provision of a free appropriate public
education to the student.

The shift in proposed Article 7 language that diminished the
circumstances under which parental consent is required significantly
intensifies the importance of this section. The written notice will
be the avenue by which families can clearly see what changes may be
initiated without their consent and prepare adequately to be effective
advocates for their children's education.

Family Voices Indiana believes Prior Written Notice should be a
separate document and follow the guidelines of a model document as
provided by OSEP: Under 34 CFR §300.503(a), the school district must
give a parent a written notice (information received in writing),
whenever the school district: (1) Proposes to begin or change the
identification, evaluation, or educational placement of your child or
the provision of a free appropriate public education (FAPE) to your
child; or (2) Refuses to begin or change the identification,
evaluation, or educational placement of your child or the provision of
FAPE to your child.

511 IAC 7-43-4 Transition Individualized Education Program
Sec. 3. (a) The case conference committee must develop a transition
education program that will be in effect when the student enters into
grade nine (9) or
turns fourteen (14) years of age, whichever occurs first, or earlier
if determined
appropriate by the case conference committee.

Discussion: The transition from school is a critically important
process for students and families. It is appropriate to align the
start of those services with the increased emphasis on career
development that occurs within the general education curriculum at age

Family Voices Indiana supports the retention of 14 as the age at which
a transition IEP begins.

511 IAC 7-45-1 Complaints
(5) Providing the public agency the opportunity to respond to the complaint
(A) at the discretion of the public agency, a proposal to resolve the
complaint; and
(B) an opportunity for a parent who has filed a complaint and the
public agency to
voluntarily engage in mediation pursuant to 511 IAC 7-45-2.

Complaints are defined as alleged violations of law (511 IAC 7-32-16).
It is deeply concerning that the concept of mediation at the local
level has been introduced into the complaint system. It should not be
possible to mediate the determination of whether or not a violation of
the law has occurred.

Family Voices Indiana recommends that corrective action plans be open
for mediation, but the determination of a violation's occurrence
should be clear and not open for local mediation. Additionally,
Family Voices Indiana recommends that data be collected both on
complaints that are investigated at the state level and those that are
investigated and/or mediated at the local level. Existing public
posting of findings should be utilized for all complaints.

51IAC 7-45-9 Due process hearing appeals
Sec. 9. (a) The state board of special education appeals ("board") is
established. The
board shall have three (3) members appointed by the state
superintendent of public

The direction given to the SAC by the State Board of Education has
clearly been to align with the intentions of IDEA 2004. Families find
it troublesome that this is an instance where the state is considering
stronger language than the federal law, one which significantly skews
the appeals process in favor of school systems and thus against
individuals and families. The Board of Special Education Appeals is
not a federally mandated part of the appeals process; the majority of
states do not require this step but instead allow appeals to go
directly from independent hearing officers to state or federal court.
The BSEA brings additional cost to all parties, and the Board's
current ability to opt to receive oral or written arguments creates a
closed door, non-transparent system, undermining the integrity of the
entire appeals process.

Family Voices Indiana recommends that Indiana dismantle the BSEA and
become a single tier system.

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