Here's our rundown on the important points where the two bills are the same or differ, in order from most to least controversial. This time we won't explain the issues in great detail; check the Summer 2003 issue of AccessAbility for more information. Once again, our analysis is based on an actual reading of the bills and not on propaganda from one side or another in the IDEA debate.

Discipline

One of the most contentious issues in IDEA history, and the single worst feature of both bills, is the approach to discipline for students with disabilities. Some disabilities can cause behavior problems, and when they do, "traditional" or "common sense" discipline often backfires and makes things worse instead of better. A lot of teachers and school administrators don't care about that; they just want these kids out of their jurisdiction so they don't have to do the extra work to meet their needs. The issue has become a battleground in the endless political "culture war" that the extreme right has been waging against reasonable people for the last 20 years or so.

The Senate version retains "manifestation determinations" in the law. That is, if a child with a disability violates a school rule, his/her IEP (Individual Education Plan) team must meet to decide if the behavior was caused by (a "manifestation" of) the disability. If it was, the child can't automatically be moved to an "alternate placement" as a punishment. This is better than the House version, which dropped the entire notion that misbehavior caused by disability should get special consideration regarding punishment. But it's not good enough, because unlike the current law, the Senate would let the school move the kid as soon as the team decides that the behavior was not caused by the disability, even if the child or his/her parents appeal that decision. Since such a move could harm the child if done for the wrong reasons, STIC believes the child should not be moved until all appeals are exhausted.

The Senate bill, the House version and the current law all make exceptions to this process for behavior involving guns or drugs; in those cases, kids can be moved immediately.

The Senate also introduces a whole new section devoted to providing grant funds for school districts to beef up their positive behavioral support services, including direct services to kids, training for teachers and other school staff, and family outreach services including case management and counseling. This is an excellent idea--but it doesn't change the fact that S. 1248 is unacceptable on the discipline issue.

Attorney Fees

The House bill sought to quash IDEA lawsuits by requiring governors to impose limits on attorney fees for such suits, a measure that has never been applied to any other civil rights legal action. The Senate version doesn't contain this language at all. It does say that fees must be "reasonable" and it imposes some fair limits on when attorney fees can be paid. STIC has no problem with the Senate's take on this issue.

Short-Term Objectives

Here's an area where the Senate bill is actually worse than the House version. The House proposed a "two-track" system for students with disabilities. Those who can benefit from a standard academic program would follow the same evaluation procedures and timetable as nondisabled students; those with significant intellectual disabilities would have an "alternate" program with modified assessments and short-term objectives specified in their IEPs. The Senate bill doesn't have this two-track system and it removes all references to short-term objectives.

STIC firmly believes that students who can handle standard academics should be evaluated in the same manner as nondisabled students. However, we believe just as strongly that the Senate has gone the wrong way on students with intellectual disabilities and it must adopt the House's language.

3-Year IEP

Another controversial issue was the House's option for students to have a 3-year IEP with brief annual reviews and full-blown comprehensive assessments at "natural transition points". The House was clear that this could only be done with parental consent and that even with a 3-year IEP, parents could demand a complete review at any time. The Senate backed away from the flurry of (in our view) inexplicable objections to this voluntary option. Their bill only offers it to students over the age of 18 (that is, typically students with developmental disabilities, especially intellectual disabilities, who need extensive post-school transition assistance and whom schools are required to serve until they turn 22).

We at STIC didn't have a problem with the 3-year IEP option in the first place; we thought that in some cases, it could help to "lock in" supports such as attendants, sign-language interpreters, or interpreters, or assistive technology that really ought to be permanently mandated for any child who needs them. But we don't think the Senate's change is worth fighting over.

Excessive Classifications

Our long experience with special education supports the widely-held view that many children are wrongly "classified" as having learning or severe emotional disabilities, and that this has been happening more and more frequently. We believe that most of these children have very real problems that fall into one or more of the following categories: they have dysfunctional, neglectful, or abusive families; they've been sent to crummy primary schools that have failed to teach them to read; they are not native English speakers; or they are black kids who are facing racism in overwhelmingly white school districts. These are problems that should be addressed by the education system; they are just not disabilities. The reason why special education money should be used to address them is because in young children whose brains are not fully developed, they can actually cause permanent disabilities if preventative measures aren't taken.

The House included several provisions to address this problem. The Senate's version is pretty watered down. The Senate doesn't cap funding for states that have disproportionately high percentages of "classifications". It also doesn't include the House's "sense of Congress" statement that kids who don't have a medical diagnosis should not get special ed services, and it doesn't contain the House's Comptroller General study of how states define and assess these disability categories. Both bills tighten the definition of "specific learning disability" to clarify that an academic performance discrepancy isn't part of the definition. Both versions would let school districts spend up to 15% of their IDEA money on "early intervention" services designed to prevent environmental problems from turning into permanent disabilities, such as screening and intensive remedial reading programs. Both would protect IDEA funds from being used for such purposes by districts that don't meet minimum requirements for providing a "Free Appropriate Public Education" (FAPE) to children who have been identified as having disabilities. However, the Senate bill does not include the House's provision to force districts that have higher-than-normal classification rates to spend the maximum on such services.

STIC believes that the Senate bill is too weak on on this issue and the House's provisions should be substituted in the final bill.

Excessive Paperwork

The Senate doesn't seem to have bought the argument that IDEA is a "paperwork nightmare". Like the House version, the Senate bill calls for a Comptroller General study of paperwork requirements, but beyond that it just says that states should "focus" on student performance when monitoring and evaluating school districts. The House's ten-state demonstration program for cutting paperwork is not in the Senate's version either, though states can spend some of their administrative money on paperwork-reduction initiatives if they wish.

STIC believes that simpler is usually better when it comes to regulation, but we don't have very strong feelings on this subject either way.

Due Process

The Senate bill doesn't contain the voluntary binding arbitration option for dispute resolution that's in the House bill. It does double the new statute of limitations for filing a formal complaint against a school district from the House's one year to two years. It also retains the two-step local fair hearing/state-level appeal process that the House collapsed into one state-level hearing with no appeal. The Senate bill requires formal complaints to be written and to contain such mind-numbingly difficult items as the child's name and address, a description of the problem being complained about, and a description of what the parents want the school to do instead. Sorry, we just can't resist the sarcasm here; we will never understand why some advocates claim that these minimal requirements are just too burdensome for parents.

The Senate has a similar provision to the House's requirement that districts "convene" a meeting with the parents when they file a formal complaint, but unlike the House bill, the Senate specifically states that this is to be a full IEP meeting. As in the House bill, the meeting can be waived by the parents and the district. Moreover, the Senate says the meeting is not required if the parents opt for mediation before going to a hearing. The Senate also specifically clarifies that parents can bring a lawyer to this meeting, by stating that the district can bring its lawyer only if the parents bring theirs. The House bill doesn't mention lawyers at all in this context. We believe the Senate's version is generally better on this point, but we strongly believe that the requirement for a full IEP meeting should be removed. If a situation gets to the formal complaint stage, it means the IEP process has failed and the responsibility for resolving the problem rests solely in the hands of the district administrators. One or two such people are sufficient for such a meeting; bringing in a whole raft of district employees is a form of intimidation.

IEP Team

The Senate bill appears to be a bit stronger on whether general education teachers must be on IEP teams. It says at least one such teacher should be if the child is, "or may be", in a general education classroom, and instead of going out of its way to repeat that general education teachers aren't always required to take part as the House bill does, it makes a special effort to repeat, in another section, that they usually are. However, STIC believes that both bills are far too weak. Every teacher who works with a child with a disability should be required to participate in the child's IEP planning--though we don't think this means they all need to physically attend every meeting.

Parental Consent

The House bill says that school districts may evaluate a child to determine if s/he has a disability without a parent's or guardian's consent, but that districts absolutely must not provide special ed services to a child without such consent. While both bills absolve school districts from liability for failing to provide special ed to kids whose parents don't consent, the Senate version doesn't specifically forbid schools to do so. STIC believes this is a mistake, because it will let schools override parents' wishes when the child doesn't have a legitimate disability and some teacher or administrator just wants the kid sent up to BOCES to get him or her out of their hair.

Forced Drugging

The House bill forbids school districts to refuse to teach kids unless they take psychotropic drugs to "control" their "behavior"; the Senate version lacks this provision. We like this rule and think it should be in the final bill.

Native Language

The House substitutes "the language and form most likely to yield accurate academic and developmental data" for the old requirement that kids must be assessed in their "native language". The Senate bill is confusing on this point. At one spot it says assessments must be "provided and administered, to the extent practicable, in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally..." Elsewhere, though, it says they must be "in the child's native language or mode of communication, unless it clearly is not feasible to do so..."

What's the real requirement? Your guess is as good as ours. In any case, STIC doesn't have a problem with these formulations; they all nicely get around the politically touchy issue of the "national language" without doing any harm to the kids. Some people will object to the Senate's "to the extent practicable" phrase. Our hunch is that it's there to protect schools from having to go crazy trying to figure out how to assess an autistic child when the cold hard fact is simply that, at the present time, nobody knows how to get through to some of these kids.

Minor Points

Here are some non-controversial areas where the bills are the same or, in our opinion, their differences aren't worth arguing about.

Both bills require state agencies to apply the same achievement standards to kids with and without disabilities, and to apply the same requirements equally to charter schools and traditional public schools. Both clarify requirements for schools to provide reasonable accommodations for students with disabilities in assessments and academic programs. The Senate is better on this point because it says schools should make an effort to follow "universal design" principles--that is, tests and assessments should be designed in such a way that most students with disabilities won't need accommodations to take them and so accommodations, if needed, can be easily and quickly put into place. Both bills require that the majority of members of state special education advisory panels be people with disabilities or parents of young people with disabilities. Both bills require states and school districts to enforce a new federal law that all textbooks and other instructional materials must be provided in electronic format by publishers so they can be adapted for use by students with disabilities. The Senate bill omits the House's admittedly non-binding urge that school districts hire people with disabilities as teachers and administrators. The Senate bill includes a section that amends the federal Rehabilitation Act to "improve and expand" voc rehab and transition services for students with disabilities aged 14 and up; it's not clear what the actual effect of this will be.

Money

The Senate doesn't even bother to predict how much money may be appropriated for IDEA. The House put forth a multi-year schedule for increasing appropriations up to the legendary "full 40%" of special education costs, but it's completely non-binding. The actual money will be appropriated in separate annual bills.

Next Steps

The full Senate will probably take up S. 1248 fairly soon after it returns from summer recess in September. At that time various amendments, good and bad, are likely to be proposed, and the debate could be lengthy. Once passed by the Senate, a House-Senate conference committee will be appointed to reconcile differences between the bills and produce a final version for the President to sign or veto.

A final bill probably won't be ready until early next year. While both parties would like to take credit for what's perceived as much-needed "reforms" in special education, they also don't want to do anything to annoy either teachers' unions or militant parents too close to the presidential election. Our guess is that if the bill isn't finished by late winter, Congress will either slap together a quick reauthorization of the current law and call it good, or delay the whole thing until 2005.