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I. Process:
A. Where to find the bill: The House version of the IDEA
reauthorization bill – HR 1350 – may be found at http://thomas.loc.gov.
There are 4 versions of the bill posted. Go to #3, the “engrossed
bill” (the bill as passed by the House).
B. The process: The House has basically finished its part
of the process until the Conference Committee is convened. However,
members of the House should continue to hear from constituents,
since some members of the House Education and Workforce Committee
will be conferees. Those members will have an opportunity to “negotiate”
provisions of the bill. In other words, there will be some trades
between the Senate and House versions. Therefore, if members hear
enough from constituents about what we like and what we don’t,
that may influence what they are willing to give up.
The Senate is expected to introduce its bill on May 21. Preliminary
comments from Senate staff about what will be in the bill sound
more promising that the House version. How long the entire process
will take is unclear, so there are still many opportunities to make
our points.
II. Bill Summary:
NOTE: I have indicated in “bold” some specific sections
that may offer major alterations in implementation of the law.
A. Part A – General Provisions:
1. Sec. 602(8) – Definition of “free appropriate public
education”:
Added language from the Rowley Supreme Court decision (1982) –
“include an appropriate preschool, elementary, or secondary
school education in the State involved that is reasonably calculated
to provide educational benefit to enable the child with a disability
to access the general curriculum…”
2. Sec. 602(9) – Added definition of “highly qualified,”
conforming to No Child Left Behind (NCLB).
3. Sec. 609 – GAO Reports: Requires the General Accounting
Office to do studies reviewing (a) paperwork requirements; (b) variation
among states in disability definitions and evaluation processes;
(c) use of distance learning for professional development; and,
(d) how limited English proficient students are served under the
IDEA.
B. Part B – Assistance for Education of All Children
with Disabilities (State Grant Program):
Funding:
1. Sec. 611(a)(3) – The number of students, ages 3 through
17, for which states will receive funds is capped at 13.5 percent.
2. Sec. 611 (e)(3) – States may use up to 40% of their administrative
funds to develop cost/risk sharing pools to help local districts
provide high cost services.
3. Sec. 611(e)(5)(A) – “Sliver grants” (funds
accruing when the State’s percentage increase exceeds the
rate of inflation) shall be used only for technical assistance/direct
services to districts identified as being in need of improvement
under NCLB, specifically due to test results of students with disabilities.
Previously districts had a number of allowable uses of these funds.
4. Sec. 611(f)(4) – If State funds are equal or greater than
the FY2003 allocation, states may keep only an amount equal to FY2003.
The remaining funds must flow to local districts.
State Eligibility:
1. Deleted “Comprehensive System of Personnel Development.”
2. Sec. 612(a)(14) – Personnel Standards: Deleted (a) “highest
requirement” for related services personnel and (b) waiver
for districts to hire people at lower standard, if they will complete
highest standard within three years.
Added “highly qualified” (NCLB standard) for special
education teachers.
3. Sec. 612(a)(15) – Performance Goals and Indicators: Requires
that performance goals be the same as state’s definition of
“adequate yearly progress” (NCLB), including objectives
for progress by children with disabilities.
4. Sec. 612(a)(16) – Participation in Assessments: District
must develop guidelines for use of accommodations on assessments
under NCLB. State must report on the number of children provided
accommodations and must provide data comparing performance of children
with disabilities with achievement of all students.
5. Sec. 612(a)(23) – States and local districts must adopt
the national instructional materials accessibility standard to provide
material to blind students or others with print disabilities. Publishers
must provide materials in electronic formats.
6. Sec. 612(a)(24) – States must have policies and procedures
to prevent overidentification or disproportionate representation
by race and ethnicity under IDEA.
7. Sec. 612(a)(25) – States must have policies and procedures
prohibiting schools from requiring a child to obtain prescription
medications (specifically “psychotropic medications”)
as condition of attending school or receiving services.
Local Eligibility:
1. Sec. 613(a)(2)(C) – Use of federal funds in certain fiscal
years: Under certain funding conditions, local districts may treat
up to 20% of federal funds received as local funds. Previously those
funds could be used in any way the local wished. This provision
requires those funds to be used for programs under NCLB, such as
programs addressing student achievement, comprehensive school reform,
literacy, teacher quality and professional development, school safety,
and before- and after-school programs.
2. Sec. 613(a)(4) – Local funds may also be used for case
management and administration, i.e., purchasing technology for teachers/related
services personnel; and, for supplemental services under NCLB.
3. Sec. 613(a)(9) – Local districts will work with the Secretary
to ensure ease of electronic transfer of educational and health
records on migratory children among states
4. Sec. 613(f) – Prereferral Services: This
section represents a major shift in IDEA “policy,” since
the children served under this provision are not identified as children
with disabilities.
Districts may use not more than 15% of federal funds, in combination
with other funds, to develop and implement “comprehensive
coordinated prereferral educational support services.” Services
are for students in grades K-12, but the emphasis is on students
in K-3. These students are identified as needing “additional
academic and behavioral support to succeed in a general education
environment.”
Activities may include professional development in delivery of
scientifically based academic and behavioral interventions; educational
evaluations, services and supports, including scientifically based
literacy instruction and speech therapy; and, behavioral evaluations,
services and supports, including positive behavioral interventions
and supports.
Activities may be aligned with programs under NCLB, including Early
Reading and Reading First and behavioral intervention supports.
Evaluation and Eligibility:
1. Sec. 614(a)(1)(B) – Provision clarifies that parents may
request an initial evaluation.
2. Sec. 614(a)(1)(D) – Informed Consent for Services: District
must seek informed consent from parents to provide services (separate
from consent for evaluation). If consent to provide services is
not given, the district “shall not” provide services,
nor will the district be required to convene an IEP team meeting
or develop an IEP.
3. Sec. 614(a)(2) – Reevaluations: Reevaluations may occur
no more than once a year, unless parents and district agree otherwise,
and at least once every three years unless parent and district agree
a reevaluation is unnecessary.
4. Sec. 614(b)(3) – Evaluation Procedures: Assessments and
measures must be administered in the “language and form most
likely to yield accurate academic and developmental data….”
Current law requires “in the child’s native language
or other communication mode.”
5. Sec. 614(b)(6) – Specific Learning Disabilities:
Again, this provision may significantly alter current practice in
some districts.
In determining whether a child has a specific learning disability
(SLD), the district “shall not be required to take into consideration
whether the child has a severe discrepancy between achievement and
intellectual ability….”
In determining whether a child has an SLD, the district “may
use a process which determines if a child responds to scientific,
research-based intervention.”
6. Sec. 614(c)(5) – Evaluations before Change in Eligibility:
Districts must evaluate a child with a disability prior to graduation
and before determining that the child is no longer eligible for
services, the latter instance only when the IEP team does not agree
regarding change in eligibility.
Individualized Education Programs:
1. Sec. 614(d)(1)(A) – Short-term Objectives: Benchmarks or
short-term objectives will be phased out in the 2005-06 school year,
except for students who take alternate assessments aligned with
alternate standards.
2. Sec. 614(d)(B) – IEP Team: A regular education teacher
will not be required at the team meeting if no issues pertaining
to the child’s participation in general education are discussed.
If the child has multiple regular education teachers, they will
not all be required to attend a meeting where issues pertain to
general education.
3. Sec. 614(d)(3) – Development of the IEP: Several changes
have been made in how meetings are conducted. Changes include (a)
parents and district may jointly excuse any member whose presence
is not necessary; (b) parents and district may agree that changes
can be made in the IEP without a meeting; and, (c) the district
is encouraged to consolidate meetings as much as possible.
4. Sec. 614(d)(5) – Multi-Year IEP: Districts
may offer parents the option of developing a multi-year IEP, not
to exceed three years, designed to cover “natural transition
points for the child.” The IEP would include a statement of
measurable goals coinciding with natural transition points and measurable
annual goals for determining progress in meeting “transition
point” goals.
The IEP team will review the document at each natural transition
point, but in no case longer than 3 years. “Natural transition
points” are defined as periods close in time to transition
from preschool to elementary, from elementary to middle/junior high,
from middle/junior high to high school, and from high school to
post-secondary activities.
In years other than natural transition points, a streamlined review
will be conduced to determine progress and whether goals are being
achieved and to amend the IEP, as necessary.
If the team determines “sufficient progress” is not
being made, the team will do a comprehensive review within 30 calendar
days. Parents may request a comprehensive review at any time.
5. Sec. 614 (at the end) – Sense of Congress: A “sense
of Congress” expresses the viewpoint of the body, but does
not actually amend the law. This “sense of Congress”
and another failed amendment are particularly troublesome.
“Findings” state that “certain categories of disability
that allow students to qualify for benefits under the IDEA have
not been scientifically established and, as a result, some children
who do not have actual learning disabilities are classified as having
disabilities under the Act.”
Further, the findings state that current definitions, particularly
the definition of “emotional disturbance” are “vague
and ambiguous.” The findings continue, stating that current
methods of distinguishing learning disabilities are unreliable,
resulting in over- and mis-identification of non-disabled students
as students with disabilities. In addition, “students with
controllable behavioral problems are often classified as having
learning disabilities and therefore are not held responsible for
their own behavior.”
“It is the sense of Congress that (A) students who have not
been diagnosed by a physician or other person certified by a State
health board as having a disability should not be classified…for
purposes of receiving services…and (B) students with behavioral
problems who have not been diagnosed by a physician or other person
certified by a State health board as having a disability should
be subject to the regular school disciplinary code.”
Procedural Safeguards:
1. Sec. 615(d) – Procedural Safeguards Notice: Parents will
be given the procedural safeguards notice at initial referral or
parental request for evaluation, annually at the beginning of the
school year, and upon written request.
2. Sec. 615(e)(2) – Voluntary Binding Arbitration:
States must offer voluntary binding arbitration as a means of dispute
resolution when a hearing is requested. Districts must ensure that
parents understand this process is in lieu of a due process hearing
and that decisions are final.
3. Sec. 615(f) – Due Process Hearings: Two-tier systems, where
the initial hearing is at the local level, have been eliminated.
The state will conduct due process hearings, with appeal directly
to the court system.
4. Sec. 615(f)(1)(B) – Resolution Session: Prior to
a due process hearing, the district must convene a meeting with
parents within 15 days of receiving notice of their complaint. At
this meeting parents will discuss the issues in the complaint, and
the district will have an opportunity to resolve the complaint.
Parents and the district may agree to waive this meeting.
If the district hasn’t resolved the complaint to the parents’
satisfaction within 30 days of receipt of the complaint, a due process
hearing will be held.
5. Sec. 615(g) – Safeguards: Either party to a hearing may
be represented by a “non-attorney advocate.”
6. Sec. 615(i) – Attorneys’ Fees: Fees awarded will
be determined by the Governor, and rates must be made public annually.
7. Sec. 615(j) – Placement in Alternative Educational Setting
(Discipline Provisions):
(a) School personnel may order a change in placement for a child
with a disability who “violates a code of student conduct
policy” to an interim setting, another setting, or suspension
for not more than 10 school days.
(b) School personnel may remove a student to an interim alternative
educational setting for any violation of a code of student conduct
for not more than 45 days, or longer if required by State law for
the particular violation. The alternative and duration must comport
with what is given to non-disabled students; however, the school
may consider “unique circumstances on a case-by-case basis.”
(c) Students removed will continue to receive educational and behavioral
intervention services.
(d) The IEP team will determine the interim alternative setting.
(e) If parents disagree with decisions regarding placement, punishment,
or duration of punishment, they may request a hearing.
(f) Deleted: manifestation determination, functional behavioral
assessment, and behavior intervention plan.
Monitoring, Enforcement, Withholding, and Judicial Review:
Sec. 616 provides a new system of monitoring and enforcement, including
serious sanctions, for states out of compliance with the Act.
Administration:
Sec. 617(3) – Pilot Program: The Secretary is authorized to
grant waivers of paperwork requirements for not more than 4 years
to not more than 10 states. States will submit proposals for addressing
paperwork reduction and “non-instructional time spent fulfilling
statutory and regulatory requirements.”
Program Information:
Sec. 618: New data will be collected – by race, ethnicity,
and disability categories – on:
(a) the number and percentage of children with disabilities who
graduate with a regular high school diploma;
(b) the incidence, duration, and type of disciplinary actions taken;
(c) the number of complaints resolved through voluntary binding
arbitration; and,
(d) the number of mediations held and settlements reached.
Disproportionality:
Sec. 618(c): Districts determined to have significant disproportionality
based on race and ethnicity must use the maximum 15% under sec.
613(f) for prereferral services, focused particularly on children
in those groups that were “significantly overidentified.”
C. Part C – Infants and Toddlers with Disabilities:
1. Sec. 635(a)(8) – Comprehensive System of Personnel Development:
Adds “training personnel in the emotional and social development
of young children.”
2. As in Part B, language on “highest requirement” for
related services personnel and waiver language have been deleted.
3. Sec. 636(d)(3) – Content of the Individualized Family Service
Plan: Requires a statement of the major “goals expected to
be achieved for the infant or toddler and the family, including
pre-literacy and language skills….”
Also requires a statement of specific early intervention services
“based on peer-reviewed research….”
4. Sec. 637(a)(5) – State Policies and Procedures:
States must have policies and procedures requiring the referral
of children “involved in a substantiated case of child abuse
or neglect…or who is born and identified with fetal alcohol
effects, fetal alcohol syndrome, neonatal intoxication, or neonatal
physical or neurological harm resulting from prenatal drug exposure.”
5. Sec. 641(b) – State Interagency Coordinating Council: Members
must now include representatives from the State agencies responsible
for children’s mental health, child protective services, and
education coordination of homeless children and youth.
D. Part D – National Activities to Improve Education of
Children with Disabilities:
This Part has been significantly restructured, although generally
keeping most of the functions of current law. A number of functions
have been consolidated, as well.
There are two significant changes:
1. The current “State Program Improvement Grants,” which
are competitive grants to states for personnel development and systemic
change, have been reconfigured as “State Professional Development
Grants.” All grant funds must be used “to assist State
educational agencies in reforming and improving their systems for
professional development in early intervention, educational, and
related and transition services in order to improve results for
children with disabilities.”
2. The research function of the Office of Special Education Programs
is moved to the new Institute for Educational Sciences (IES)
(formerly the Office of Educational Research and Information, the
general research branch of the Department of Education). The bill
establishes the “National Center for Special Education Research”
to be directed by the “Commissioner for Special Education
Research.” However, the Director of IES must approve the special
education research plan, and priorities must be consistent with
those of IES.
It is unclear how this would affect the quality and quantity of
special education research, including dissemination to the field.
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