The Full Faith and Credit for Properly Constructed Individualized Education Plans Act

The Full Faith and Credit for Properly Constructed Individualized Education Plans Act

Summary

Under the Individuals with Disabilities Education Act (IDEA), all students are entitled to a free and appropriate public education, and school districts are required to provide services in accordance with an individualized education plan (IEP) that outlines the particular educational needs and appropriate services for each child.

Unlike most areas of education law, IDEA creates a private right of action that enables parents to enforce their rights under a child’s individualized education plan to ensure that appropriate services are provided by the district, and state and that if a district is unable to provide appropriate services, funds are made available for the child to obtain the services from an outside-the-district provider.

Although an IEP is a federally mandated document, it is not currently a “portable” document (i.e., recognized from state-to-state, or even from district-to-district within a state). As a result, a student’s IEP must often be redrafted when a family moves, triggering a lengthy process that often:

  • jeopardizes students’ rights to appropriate services under the law;
  • impedes mobility of an entire family in search of economic or other opportunity (e.g., job transfer); and
  • triggers significant administrative costs for states and local governments, as costly IEP processes are replicated to address the capabilities of the district, rather than the needs of the child.

Ensuring IEP portability by requiring that every district within a state grants “full faith and credit” to a properly constructed IEP in another district within that state will ensure that families with special needs children are able to enjoy the same freedom and opportunity of mobility, without jeopardizing the educational options available to their children or creating costly administrative costs for school districts and taxpayers.

  • The recognition of services required under IEP constructed in another district would in no way restrict the rights of parents to request a new evaluation pursuant to state and federal law.
  • The Full Faith and Credit IEP Act would not curtail the rights of a district that receives a new student with an IEP to challenge the validity of an IEP that may have been improperly constructed by the referring district.
  •  The receiving district must, however, recognize and honor the individualized education plan described in the existing IEP while the validity of the IEP or nature of handicapping conditions and required services are being evaluated.
  •  States that have enacted the “Full Faith and Credit IEP Act” could, in turn, enter into interstate compacts, or agreements, to honor IEPs prepared in other states; thereby expanding freedom and mobility for families of special needs children beyond state borders.[1]

Model Legislation

Section 1. {Legislative Declaration.}

(A) Every special needs student in [insert name of state] is entitled to a free and appropriate public education, pursuant to the Individuals with Disabilities Act of [insert year of reauthorization];

(B) Local education agencies within [insert name of state] are required to create an Individualized Education Plan (IEP) pursuant to [insert reference to appropriate state law or regulation];

BE IT ENACTED BY THE STATE OF [insert name of state], [insert special education code section] is amended to read as follows:

Section 2. {Title.}

Full Faith and Credit for Properly Constructed Individualized Education Plans Act

Section 3. {Basic Elements of Full Faith and Credit for Properly Constructed Individualized Education Plans Act.}

(A) Upon receiving, as a transfer student, a child with special needs (“special needs transfer student”) that has:

(1) been enrolled as a full-time student at another public school or public charter school (referring school or agency) within [insert name of state] immediately prior to enrolling in the receiving school, and

(2) has had a lawful and binding Individualized Education Plan constructed by the referring school or agency (“Existing IEP”) pursuant to [insert federal or state code site], the receiving school district shall:

(a) Recognize the handicapping conditions, required educational services, and all other requirements specified within the Existing IEP; and

(b) Ensure that the specific educational services required in the IEP are provided to the student within 30 days of the student’s first day attending school within the referring school district.

(B) The district may, at its option, contest the validity of the IEP, including the determination of specific handicapping conditions or appropriateness of services required by the IEP in accordance with applicable state and federal law; however, the receiving district must follow and honor the requirements of the Existing IEP during the time which any element of the Existing IEP is being challenged and reevaluated at the receiving district’s option unless:

(1) The district, with the consent of a parent or guardian, provides funding directly to the parent for the purchase of appropriate services, in accordance with the following schedule [or, the applicable state Special Needs Scholarship Act].

Section 4. {Effective Date.} The Full Faith and Credit for Properly Constructed IEP Act will be in effect immediately after the enactment of this act.

Approved by full ALEC Legislative Board of Directors January, 2009.


[1]     In May of 2007, The State of Georgia created the Georgia Special Education Scholarship Program which was modeled after the McKay Scholarship Program in Florida.  The two programs are almost identical in purpose and structure.  Shortly after the Georgia law was passed, families with children with autism in Southeast Georgia inquired as to whether the Georgia Special Education Scholarship would be accepted at a private school in Jacksonville, Florida which focuses upon children with autism.  Although the Georgia and Florida special needs scholarship laws currently contain impediments to allow Georgia or Florida students to utilize their scholarship in another state, the sponsors of the Full Faith and Credit IEP Act look forward to working within ALEC to develop model intra- and interstate compacts to facilitate not only IEP portability, but cooperation between states that have special needs scholarship laws in place (and might encourage other states within the region e.g., South Carolina to provide similar opportunities to special needs children and families.

 

Task Forces