As the IDEA reauthorization process heated up this spring, the House of Representatives passed their version of the new IDEA, HR 1350, the "Improving Education Results for Children With Disabilities Act of 2003", along largely, but not completely, partisan lines.

Much has been reported about this bill, some true, some false, some vague. We've analyzed the bill carefully and compared it to the current Individuals with Disabilities Education Act (IDEA) to bring you the facts minus the hype.

In STIC's view, this bill should not become law, because it contains one very bad change, and one pretty bad change. However, there are many good things in the bill, and some other changes that, properly understood and applied, will do no harm.

Very Bad

The worst provision in this bill is its new disciplinary procedures for students with disabilities.

The current law understands that some disabilities can cause behavior problems and requires schools to respond to those problems with appropriate treatment, which may or may not include traditional forms of punishment. It does not ordinarily let schools suspend a child with a disability or move her to an "alternate child with a disability or move her to an "alternate placement" for behavioral reasons for more than 10 days. If the behavior involved bringing weapons to school or using or selling drugs, the limit is increased to 45 days. Schools must do a functional behavior assessment, and create a plan to address the behavior, when it arises. And when any disciplinary action is considered for a child with a disability, the child's IEP Team must meet to determine whether the behavior was a "manifestation" of the disability and, if so, decide how to take that into account.

It sounds like heavy handed government bureaucracy getting in the way of good old-fashioned discipline for children, doesn't it? Except: It has been scientifically demonstrated that many medically-diagnosable disabilities, including mental retardation, traumatic brain injury, and psychiatric conditions, can cause children to behave badly. It has been further proven that ordinary punishments do not improve the behavior of these kids. It has been shown that a variety of appropriate interventions exist that can help these kids behave better while remaining in ordinary classes. And it has been shown that many teachers and administrators are prejudiced against students with disabilities and are actively looking for excuses to throw them out of their classrooms and schools. The current law permits dangerous kids to be suspended or moved if necessary to protect them or others. But children with disabilities need legal protections to ensure that their behavioral disabilities are handled as "peer reviewed scientific research" (which the House bill carefully mandates in other areas of special education) calls for.

HR 1350 throws most of these protections out. Instead, it lets schools apply the standard disciplinary procedures, including suspension or alternate placement, that it uses for all students, for any behavior that violates a school's "code of student conduct", to a child with a disability without regard for whether disability caused the behavior. The requirements for functional behavioral assessment and a "manifestation" determination are removed. And, alternate placements can be for the rest of the child's school career.

Contrary to claims made by some advocates, the bill does require that behavior plans for the child must be carried out in the alternate setting. And it strengthens requirements to provide such interventions, and other suitable supports, to children with behavioral disabilities at the time when the disability is diagnosed.

The new discipline provisions were fostered largely by people who think all behavior is a matter of moral choice--a belief that displays profound ignorance of modern medical knowledge. However, these dark-age demagogues could not have pushed it through without the support of people who have bought into the complaints of school district officials that it's just too hard and dangerous to follow fair and enlightened procedures. Among these misguided supporters is our own Senator Hillary Rodham Clinton.

Pretty Bad

The other unacceptable provision of the House bill requires Governors to set reimbursement rates for attorneys who represent children with disabilities in IDEA lawsuits. The publicly-stated reason for this change is that schools are swamped with legal bills for these suits and need relief.

However, the people writing this bill know that it will be harder for impoverished families to find legal help under these conditions. The real intent is to quash lawsuits before they start, regardless of how justified they may be. This is unprecedented; there are no such provisions governing attorney fees in lawsuits under any other civil rights statute. It's another in a long series of examples of how people with disabilities, the nation's largest disadvantaged minority, have been forced to play second fiddle to other groups when it comes to legal protections.

Good Stuff

On the bright side, this bill contains many reforms that STIC has been calling for. Here's a rundown:

Excessive Classifications

As we've reported, children are often classified as having disabilities because their schools have failed in their basic responsibility to teach them to read, because English is their second language, because they have family problems, or because they are black and their teachers are white. The results are that these kids get the wrong kind of "help" for their very real and serious problems, and there is much less special education money to serve kids who have real disabilities. There are several provisions in HR 1350 to address this problem:

IDEA funding for states (which gets distributed to school districts) is based on the percentage of students in the state that have disabilities; the higher the percentage, the more money is provided. This bill caps that formula at 13.5%. This means that states that "classify" unusually high numbers of students with disabilities won't get rewarded for it.

The US Comptroller General would study the definitions and assessment processes the states use for the categories "emotional disturbance", "specific learning disability" and "other health impairments" to see if they conform to "peer reviewed scientific research". Their report would be issued 2 years after the new IDEA takes effect.

Meanwhile, the new bill clarifies that performance discrepancy in academic matters of reading, writing, math, and verbal expression is not a required part of the definition of "specific learning disability", and that districts may use, when deciding if a child has a learning disability, "a process which determines if a child responds to scientific, research-based intervention." The bill also specifically states the "sense of Congress" regarding disability diagnoses: that children who have not been diagnosed by a board-certified medical practitioner as having a disability, whether physical, learning, or emotional/behavioral, should not be getting special education services.

A new concept is introduced: "pre-referral supports". These are screening and intensive intervention services for kids who have reading or math deficits caused by poor teaching; family-based emotional or behavior issues; or communication problems, that could get them mistakenly labeled as disabled. Local districts could use up to 15% of their IDEA money to teach kids to read, work with them and their families on behavior issues, or provide speech therapy, among other things. Research has shown that, if handled properly at a young age, these problems need not harden into permanent disabilities. How much money goes into these pre-referral programs would usually be up to the district, but districts with exceptionally high numbers of "classified" kids in general, or "classified" children of color, could be forced to use the maximum allowable amount for such purposes. Schools that don't meet state and federal requirements for adequately educating the kids who are classified as having disabilities would lose the option to use any IDEA funds for pre-referral supports. These provisions, we believe, ought to silence claims that IDEA is going to wreak havoc by pulling scarce special education dollars out of the system.

Better Employment Language

The current IDEA requires that anybody funded under the Act should make special efforts to hire people with disabilities, but the House bill emphasizes that people with disabilities should be hired as teachers, early intervention providers, and administrators.

Equal Standards

The bill requires state agencies generally to apply the same standards of achievement to students with and without disabilities when evaluating school performance.

Reasonable Accommodations

The bill clarifies and tightens requirements on states to ensure that appropriate policies and procedures are followed to provide accommodations to students who cannot participate in standard assessments or academic programs.

A New Generation of Advisors

Under IDEA, states have advisory panels that help develop special education policy. The current law requires that a majority of members of these panels be people with disabilities or parents of people with disabilities. The House bill would help rid these panels of old-school segregationist parents by stating that parent members can't be counted toward this majority if their children with disabilities are aged 27 or older.

Accessible Texts

States would have to enforce a recent federal law requiring all manufacturers of textbooks or other printed instructional materials purchased by the state to provide them in electronic format (that is, on computer disk), so they can be adapted for use by children with disabilities.

No Forced Drugging

Schools would be forbidden to require students to take psychotropic drugs as a "condition of attending school or receiving services".

Charter Schools Covered

The bill clarifies that the same requirements and standards for special education must be applied equally to traditional public schools and charter schools.

Excessive Paperwork Reduced

The new bill clarifies that an IEP does not have to contain the same information in more than one place. (It would be nice to apply this to all forms of disability service paperwork. Agencies have been required to record the same stuff in several different places, simply because compliance reviewers are too lazy to actually look for it, for far too long.)

No Harm, No Foul

More on Excessive Paperwork

State education agencies, school boards, and teachers' unions have convinced a lot of people in Congress that IDEA is a paperwork nightmare. We aren't sure that it's a nightmare, but it can be very confusing. We're mostly concerned with state agency positions on this, because they are responsible for most IDEA enforcement. They've claimed that they can't enforce IDEA because the requirements are too confusing. We have a sneaking suspicion that they don't want to enforce IDEA because Americans are very hostile to the notion of non-local governments telling them how to educate "their" kids--as though kids were private property and there is no national or state interest in ensuring that they are well-educated. But if the regulations are streamlined, state agencies won't have this excuse and the real issues can be exposed and dealt with.

In any case, much of IDEA has not been effectively enforced for over 25 years and yet the advocates who are trying to hold the line on regulations and paperwork say IDEA is a "pretty good" law that works "pretty well". In our view, losing rules that were never obeyed is no loss, and any improved enforcement of remaining provisions that comes from simplification will be a net gain.

The provisions to reduce paperwork and regulation are mostly centered around a requirement that state education agencies "minimize the number of rules, regulations, and policies to which the State's local educational agencies and schools are subject to under this Act" (looks like whoever wrote that line should get a bit of remedial education him or herself), a mandated General Accounting Office study of excessive paperwork, and a pilot project in which up to ten states could propose alternate regulatory and monitoring systems of their own devising.

Parental Consent

The proposed bill changes parental consent requirements. School districts would not need parental consent to evaluate children to determine if they have a disability, but they would need clear consent to develop an IEP or provide special ed services to them. This is one of those issues that looks like one thing on the surface and something else when you dig into it.

Sometimes parents refuse consent, and sometimes they don't respond either way. The current language of IDEA lets schools use mediation and due process procedures to effectively "appeal" a refusal (if such doesn't conflict with state law) of consent for evaluation, but it is silent on the issue of whether districts can provide special education services without parental consent. The House bill makes it very clear that districts may not provide services without consent, and it also states that a district is not legally liable for failure to provide services under these circumstances.

VESID and others are concerned that, due to parental neglect, some kids with disabilities will not receive the Free Appropriate Public Education (FAPE) they are entitled to. However, there are lots of cases where schools "classify" a child who doesn't have a real disability simply because a teacher can't get along with the kid and wants him out of his classroom. This happens a lot with kids classified as having attention deficit disorder (ADD); while medical definitions require that problem behavior be observed at both home and school for an ADD diagnosis, school districts aren't required to follow this definition. The new language would clearly prohibit such "classifications of convenience" when the parent objects, and that's a good thing.

Re-evaluations No Longer Mandatory

Everybody in the disability rights movement has horror stories about how people with obviously permanent disabilities are required to be re-evaluated periodically to prove they are entitled to disability supports and services. This nonsensical procedure wastes taxpayer dollars. The current IDEA requires that kids with disabilities be re-evaluated every 3 years, whether the disability is permanent or not. The new bill provides discretion to school officials and parents to jointly waive re-evaluations altogether or to do them as frequently as needed.

Assessment Tools and Procedures and Eligibility Determination

The new language tightens up requirements to emphasize that only scientifically valid tests and procedures should be used. Since informal procedures are subject to personal bias, while allegedly "valid" tests can be wildly inappropriate for the specific child, we'd call this change a net wash in terms of its likely effect on the accuracy of assessments. The new language also gets rid of the requirement for evaluating children in their "native language", but it says that evaluations have to be done in "the language and form most likely to yield accurate academic and developmental data", which should have the same effect. The bill also adds an emphasis on academic performance during assessments and re-evaluations.

The House bill makes several changes to require that the "educational needs of the child" be evaluated when the child is tested to determine whether or not s/he has a disability. This is a response to complaints that the whole IDEA process seems focused on identifying kids with disabilities rather than on educating them. We don't think this will have any significant effect.

IEP Team Membership

The House bill changes the requirements for participation by regular education teachers in IEP Teams. The net effect is that no more than one such teacher, if any, is required to participate and that teacher doesn't have to take part in matters that don't involve the regular classroom. In our view, IDEA has been, and still is, far too weak in its requirements for regular education teacher involvement and coordination, but this new language doesn't really make that worse.

IEP Meetings

The bill introduces more flexibility in how IEP meetings are held, whether they are in person or via electronic communication, and whether or not people can submit input in writing instead of attending. Any changes from standard procedure must be consented to by the parents, and in our view, this probably makes things easier for some families and school districts without affecting the quality of the outcomes.

Benchmarks and Short-Term Objectives

This has been a big bugaboo for the advocates, who have been loudly claiming that the requirement to include these in IEPs has been eliminated. That is highly misleading.

Instead, the bill contemplates two "tracks" for children with disabilities--kids who will pursue standard academic goals and undergo standardized testing, and kids who will have "alternate" academic programs and assessments. This concept addresses a reality that we are seeing in schools: Yes, it's critical that all children with disabilities be included in regular classes so they can have nondisabled children as peers and role models (or be role models themselves). But there are some kids whose disabilities will forever preclude them from making significant progress in standard academic areas. The fact is, there's no reason why a kid with a disability who can pursue standard academic goals can't be served adequately by the progress tracking and evaluation methods that are used for nondisabled children, and that's what this provision, and others, require. This is a good thing, because it ensures that kids with non-intellectual disabilities are held to the same standards as nondisabled children. The House bill clearly states that benchmarks and short-term objectives will continue to be required for children who really need them--the kids who will not be focusing on standard academics.

Multi-Year IEP

This is another big point of contention for advocates. Whether you consider it harmful or not comes down to your beliefs and experience concerning typical parents of children with disabilities.

Under the proposed bill, parents could choose to have a multi-year IEP (Individual Education Plan) instead of the standard one-year IEP. What does this mean? Advocates say it will result in weaker progress tracking and less accountability for schools, and may mean that fewer kids are moved into less restrictive settings as their skills improve. We don't really see this in the bill language. A multi-year IEP is a comprehensive long-range plan for the child's education--one that can effectively address long-term as well as short-term goals. It allows items that ought to be permanent fixtures--such as sign-language interpreters, braille, assistive technology, personal attendants and aides-to be put in place without having to fight for them every year. Such an IEP can be for no longer than 3 years, and it would still have to contain measurable annual goals. At minimum, there would be a "streamlined" annual review of the child's progress, with a full-blown "comprehensive" review at "natural points of transition", such as when the child goes from primary to middle school, or when s/he begins the transition phase in high school. However, a significant lack of progress seen at the annual review would require a comprehensive review within 30 days, and parents could request a comprehensive review at any time. The IEP Team would have no discretion to refuse such requests. There is no language in the bill that precludes children pursuing "alternate programs" (therefore requiring short-term objectives and benchmarks), from having a multi-year IEP that would set in stone assistive technology and personal attendant supports for several years while still triggering frequent careful reviews and adjustments as needed.

The people opposed to this say that parents are likely to be confused or coerced into accepting a multi-year IEP by school districts that want to avoid accountability. This is probably true. But the fact is that school districts try to intimidate parents and violate their children's IDEA rights in all sorts of ways already, and the only solution is to have knowledgeable and determined parents supported by knowledgeable and determined advocates. Families without these resources suffer under IDEA, and always have. That's why STIC has always said that IDEA should contain much more strict and detailed language mandating inclusion and specific support services. There has been little interest in this among professional advocates though, perhaps because it would remove a lot of the ambiguity in the law that keeps them employed. In any case, the House bill's multi-year IEP language would not reduce parents' or children's legal rights concerning IEP content or reviews in any way, and determined parents and advocates will still be able to enforce them.

Hearings, Appeals, and Arbitration

One of the more shrill claims of organized IDEA advocates has been that the new IDEA will "force" parents to attend "intimidating IEP meetings" without legal representation after filing a formal complaint, where, presumably, they will be harassed and threatened. This appears to be a major distortion of the facts. The new bill requires school districts to offer to meet informally with parents who file complaints before going to a fair hearing, but parents do not have to consent to such a meeting, there is no language requiring, or even suggesting, that it be an "IEP" meeting, and there is no language forbidding parents to bring legal counsel to such a meeting. It may be a useless provision, since few parents will want to attend such a meeting if they're already planning to file a formal complaint, but we don't see any harm in it.

Another objection is to a new provision for voluntary binding arbitration for dispute resolution. The idea is to reduce the number of lawsuits. Since the option is completely voluntary, the arbitrators must be independent and neutral, and the results are legally enforceable, we don't see any problem with this either. Parents who feel they'll get a better shake from the courts would be free to use them instead.

The fair hearing process would be changed. Instead of the locally-administered hearing with an optional appeal to the state education agency in the current law, the new bill has the hearing conducted in the local district by the state education agency, with no appeal option. VESID would prefer that it be up to the states to decide how to structure the hearing process. We have no opinion on what would be better.

There are new limitations on how complaints are to be filed. A one-year statute of limitations would be imposed, as would requirements on how detailed complaints must be in order to require a response from school districts. Advocates object to these requirements on grounds of fairness. Actually, it seems to us that the one-year limit might cause more, rather than fewer, formal complaints and lawsuits because families won't be able to afford to wait for a slow school district to respond to informal requests to fix things. They'll have to get going right away on documentation and formal filings as soon as a problem crops up. We aren't sure what the impact of this will be, but you can bet we will make sure that families understand the new urgency of building a formal case for legal action.

Vouchers

HR 1350 does not contain any mention of vouchers to enable families to send kids with disabilities to private schools. A successful advocacy effort got those provisions removed. However, there is a separate bill in the House to introduce the voucher concept to IDEA. We haven't looked at this bill, but we continue to insist that any such program, to be acceptable, must require private schools to accept otherwise-qualified students with disabilities, require them to comply with all IDEA and other disability civil rights law provisions in serving them, and provide sufficient funds in the vouchers to cover the full cost of tuition at any local school.

Funding

Once again, the reauthorization process falls short of fulfilling the promise in the original IDEA that the feds would pay 40% of the costs of special education. This is not good, but it's nothing new. The bill does at least continue the currently fashionable practice of projecting annual funding increases to the point where the 40% level is reached, though it doesn't mandate those increases or actually appropriate funds. It remains unclear what the "100%" is that the "40%" is part of, and whether either figure would be adequate to meet the need anyway. Still, we agree that special education is underfunded even if all those kids with bogus "learning" and "emotional" disabilities are removed from the mix.

Congressional Action

HR 1350 was passed in April. At the end of May, the Senate was working on its own IDEA reauthorization bill. It seemed possible that the Senate bill would avoid the most controversial issues--student discipline and attorney fee limits. Instead, the strategy would be to push the big fight into the House-Senate conference committee that will have to combine the different bills into one.

We want to be very clear: HR 1350 should not become law. Its discipline and attorney fee provisions are absolutely unacceptable. But we at STIC believe the most effective strategy is to give legislators a balanced accounting of what is good and bad in the bill. The bad provisions are a blatant effort to cater to the Republican "base"--the far right wing. Legislators are much more likely to feel safe in backing away from these provisions if we show them that they will get praise and support from moderates for the good parts of the bill.