IDEA Summit final

NAPAS National Association of Protection & Advocacy Systems

Contacts: Diane Smith or Kathy McGinley (202) 408-9514

The Protection and Advocacy (P&A) System and Client Assistance Program (CAP) comprise the nationwide network of congressionally mandated, legally-based disability rights agencies. P&A agencies have the authority to provide legal representation and other advocacy services, under all federal and state laws, to all people with disabilities (based on a system of priorities for services). There is a P&A agency that provides free legal assistance to people with disabilities in each state and territory in the U.S.

To a child, school is not only a place of learning but is also his or her primary social environment outside the home, a recreation facility, and a full time job. As such, P&As handle a vast number of education cases each year, serving students with disabilities from birth through their final year of special education entitlement (age 21 in most states, but as late as age 26 in others). The importance that P&As place on this area of casework is fitting in light of the proportion of a lifetime encompassed by this time period, and the importance of education in young peoples’ lives.

Recommendation #1

The success of the IDEA must be judged by improved outcomes for students. Historically and currently, when done correctly, special education improves outcomes for children with disabilities.

There is absolutely no need to change the substantive content of the IDEA in order to improve outcomes for students with disabilities. It is ill advised to make major changes so soon after the 1997 amendments and the release of the regulations in 1999. In fact, the one thing that would most improve outcomes for IDEA eligible students is effective implementation of the statute’s current requirements, which requires no amendment to the statute at all. This can be achieved, at least in part, through effective compliance monitoring and enforcement and increased federal funding. This statute has been amended numerous times, yet the problems we see in our offices are largely the same as those we saw 20, even 30 years ago. These are problems that the statute could solve, if only it were implemented as written.

We recognize the fact that both the Administration and Congress will be proposing amendments to the IDEA in the coming months. Therefore, we offer these thoughts within that context. All involve suggested changes to the current language of the IDEA.

Recommendation # 2

Any changes to the IDEA should: 1) preserve important protections for parents and students, 2) promote better outcomes for students, and 3) minimize the amount of effort school staff must devote to tasks other than direct student services (e.g. paperwork, meetings) whenever this can be accomplished without jeopardizing students’ rights or protections. We have some examples of changes that would meet these criteria, which are available upon request.

Recommendation #3

SEAs and LEAs should be required to utilize user-friendly dispute resolution mechanisms whenever possible. In particular, mediation can reduce conflict between families and school officials. Other examples include:

· Many disputes could be resolved if the parties had recent, accurate information about the effects of the student’s disabilities upon his or her ability to learn. Greater access to this information will prevent the need for mediation or due process hearings in many cases and will substantially expedite many of those that do occur.

The statute should require that upon parental request, the SEA must pay for all costs of relevant independent educational evaluations (IEE) when there has been a hearing or mediation request. These evaluations are substantially less expensive than either hearings or mediation. The IEEs themselves must be independent of either SEA or LEA control. Funds should be made available for this purpose that do not reduce the funding currently available to State Education Agencies ( SEAs) and Local Education Agencies (LEAs.) The IEE report must include specific findings and recommendations re: the student in advance of the hearing (see the 5 day notice requirement for evaluations), and funding for the IEE must cover testimony by the independent evaluator at the hearing or mediation.

• LEAs must be required to provide parents with information about mediation in all procedural safeguard notices, and orally, at IEP meetings.

• In the mediation section of the IDEA, delete the counseling requirement in §615(e)(2)(B) and substitute the requirement that if the parent requests mediation, the school district must participate.

• Add language “mediation must be conducted within 21days, and cannot delay the convening of the due process hearing.”

• Revise §615(e)(2)(F) of the statute to state that “written mediation agreements shall be enforced by the SEA or in accordance with state law applicable to mediation agreements.” Currently, mediation is unattractive to some parents because agreements made at mediation can be difficult to enforce.

• Provide specific requirements for mediators so that they are fully independent of school district influence and do not have the appearance of influence.

Recommendation #4

Current due process hearing procedures do not offer parents a level playing field, nor do they necessarily result in improved student outcomes. The following changes would help provide equity in the system.

• Insert language specifying requirements for the selection of hearing officers so that there is less state by state variability, and the system is equally balanced between parents and school districts. This should apply equally to Parts B and C. Investigate practices in various states to determine whether there are successful models of due process hearings that should be replicated nationally.

• Lay advocates must be allowed to represent parents at hearings. Amend §615(h)(1) to read, “the right to be accompanied, advised and/or represented by counsel or by individuals with special knowledge or training with respect to the problems of children with disabilities.”

• When a due process hearing is requested, require a preliminary pre-hearing conference (by phone if necessary) to refine issues and responses to those issues. This will help pro se parents resolve cases more expeditiously. This currently occurs quite successfully in a number of states.

• Make clear that expert witness costs are collectable when parents are prevailing parties.

• Change the “prevailing party” language to clarify that it includes parents who are successful in those situations where the parent’s request for due process has been the catalyst for change, (i.e., overturn Buckhannon for purposes of the IDEA).

Recommendation #5

The current IEP provisions do not need to be changed, since they already incorporate the critical issues: Where is the child now? Where should the child be going? How will we get the child there? How will we know when the child gets there? However, IEPs could become more efficient if OSEP were to provide national model forms that reflect these functional questions in a user-friendly manner. These forms could be adapted for use locally, at LEA or SEA discretion.

Recommendation #6

Compliance with the IDEA should be defined as achievement of educational progress and positive outcomes for students. The IDEA should mandate federal and SEA monitoring that is

based on verifiable data; focuses on a limited number of items that will improve outcomes for students; and includes capacity building and effective sanctions.

Recommendation#7

There would be less conflict regarding the IDEA if key terms and phrases (e.g. “Functional Behavioral Assessment,” “Behavioral Intervention Plan,” “duration” of services) were defined. Such definitions should be based on best practices.

Recommendation #8

The capacity of all school staff to meet the needs of students with disabilities must be improved in order for the statute to be implemented as intended. This can be accomplished by:

• Providing IDEA funds, over and above the current allocation, to increase the capacity of regular education teachers to teach diverse learners. These grants would be used to enhance teaching skills for students who are and are not IDEA eligible, and especially those with behavior and reading/literacy needs. Some recommended models include co-teaching, master/teacher mentoring, and other “hands-on” approaches.

• Require regular education teachers to be able to teach diverse learners, modify curriculum, implement effective behavior management skills and otherwise instruct children with and without disabilities effectively.

• Students with disabilities are entitled to be taught by regular and special education teachers who are “highly qualified” as that term is defined in the No Child Left Behind Act. This concept should be explicitly included in the “in accordance with state standards” criterion in the IDEA definition, and should be enforceable through the IDEA procedural safeguard system.

• Provide parents the clear legal authority to enforce the statute’s Comprehensive System of Personnel Development (CSPD) requirements, as they are currently not adequately implemented. Amend the statute to require that LEAs must implement CSPD.

• Require special education teachers to meet the certification standards for regular education teachers, in addition to those required for special education.

• Change the strategy from discretionary grant programs to programs that reward LEAs that achieve improvement (as measured by verifiable data) in:

• Student outcomes (e.g. graduation rates and performance on statewide assessments, reduced suspension and expulsion rates, etc.),

• Instructional capacity of staff (e.g. improvement in number of teachers, improved staff turnover, etc.)

• Meeting the Least Restrictive Environment (LRE) requirement

Recommendation # 9

The current behavioral support and discipline provisions of the IDEA are fair and workable if utilized correctly. However, language could be added which would strengthen them to emphasize prevention and appropriate programs that will reduce the incidence of inappropriate conduct, and hence the need to discipline children.

• Maintain requirements within the IDEA that:

• Require the provision of FAPE to children with disabilities at all times

• Do not punish a child with a disability for behavior that is a manifestation of his or her disability (including a change of placement)

• Require that the IEP/placement team determines the student’s placement (including IAES placements).

• Add language requiring that an IEP contains a behavior plan (based on a functional behavioral assessment and include positive behavioral supports and interventions) whenever the child has behavior problems that interfere with learning. The plan must be individualized and must take into account the student’s behavioral, psychosocial and educational history. Currently, these supports are only required after suspension and/or expulsion is being considered. This is far too late.

• Require that if an LEA (or SEA if the SEA is providing services directly to a student) seeks to renew an IAES placement, it must request an expedited hearing within 30 days of the start of an IAES and must complete the hearing by the end of the IAES period (no more than 45 days). Currently, an extension request hearing can sometimes take so long that the district gains much of the time it seeks merely by requesting the extension.

• Require that the IEP team develop a plan for transitioning the student successfully from the IAES back to his or her regular placement in order to utilize the IAES option.

• SEAs must ensure that all IAES placements meet all state law requirements re: health and safety (e.g. heat, ventilation, etc.) and that the academic programs and services provided to students in IAES are equal to those provided to other students in the state (e.g. textbooks are equally up to date, teachers are certified, etc.)

Recommendation #10

The education programs of older students must be built around and advance the students' post-school goals in, as appropriate, the following areas: post-secondary education, employment, and community living. Some ways to accomplish this are:

• Redraft the IEP requirements for students over age 16 as follows. As post-school planning and services should not be an add-on to the students' IEP (these concerns should be the context for the school program, and should drive the IEP process), require the IEP goals and objectives of students ages 16 and older (and if appropriate at 14), to be divided into three areas (post-secondary education, employment, and community living); so that each goal and objective is clearly linked to one of these potential outcomes.

• Specify in the statute that the failure of an LEA to either ensure the presence of representatives of all appropriate outside agencies at a transition IEP meetings or to provide the services and information that representatives of those agencies would have provided if they refuse to attend, is a denial of Free Appropriate Public Education (FAPE.)

• Amend the statute to require that SEAs ensure that all local and state agencies that are needed to meet the post-school planning needs of these students will provide the services needed by these students. This can be accomplished through carefully developed, and scrupulously enforced, Memoranda of Understanding.

Recommendation #11

The general and special education systems (including teacher preparation and educational practice in schools) must be connected more successfully, as the current divide between them impedes systemic reform and the educational progress of all students.

• Provide additional funds that are sufficiently flexible to allow school districts to implement school-wide reforms that improve both special and general education especially in the areas of behavior/social development and early reading. These funds must supplement and not supplant current special ed. funding.

• Create specific federal standards for alternative assessments based on best practices to ensure there is true accountability for these students’ progress.

• In order to actualize the ‘97 language, which requires that the general curriculum be the starting place for the educational planning of all students, amend the statute to require that the IEP team may retreat from some or all of the general curriculum only if the student cannot acquire the information with supports or curricular modifications. The IEP team must document the supports and modifications it has attempted prior to retreating from the general curriculum.

For students the IEP team agrees cannot participate in the general curriculum, the IEP must specifically state:

· Why the student cannot do so

· The educational goals and objectives for the child regarding all material outside of the general curriculum

· How that progress toward those goals and objectives will be measured.

• Add language which states that whenever federal, state or local law or practice condition grade promotion, high school graduation, or other benefits and privileges on participation and specific achievement levels in standardized assessments, the IEPs for children taking alternative assessments must ensure that participation and specific achievement levels in those assessments allows for the same benefits and privileges as do the standardized assessments.

· Clarify that in states that impose high stakes consequences (i.e. graduation and grade promotion) on students for failure to pass state assessments, those states shall ensure that such tests shall not discriminate against students with disabilities and shall not otherwise violate the IDEA.

• Reduce the need for accommodations to state and local assessments by requiring test developers to use commonly accepted universal design principles when creating and updating tests.

Recommendation #12

Provide incentives (financial or other) to states to demonstrate student progress with data. For example, increase funding to states that demonstrate improvement in special education graduation rates, reduction in special education suspension and expulsion rates.