COMMENTS ON THE RECOMMENDATIONS OF THE PRESIDENT'S COMMISSION ON EXCELLENCE IN SPECIAL EDUCATION

National Association of Protection and Advocacy Systems, Inc. (NAPAS )

August 19, 2002

Thomas Irvin

Office of Special Education and Rehabilitative Services

U.S. Department of Education

400 Maryland Avenue, SW, Room 3086

Washington, DC 20202

Dear Mr. Irvin:

We appreciate the opportunity to comment on the final report of the President's Commission on Excellence in Special Education (hereafter, "the report"). NAPAS is the voluntary membership association for the Protection and Advocacy (P&A) System and Client Assistance Program (CAP) which 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. Traditionally, P&As have placed a high priority on assisting students with disabilities in education related matters, and we are one of the largest, if not the largest, providers of advocacy assistance to IDEA eligible students in the U.S.

Having read the comments of a number of other groups with whom we agree (CCD Education Task Force, COPAA, Mental Health Liaison Group, and Michigan Protection and Advocacy Service among others), we will refer to and supplement theirs with the comments that follow, in order to avoid repetition.

Introduction

There have been a number of changes to public education in recent years which may have a important impact on special education. These include:

• •Substantial increases in IDEA funding
• •The No Child Left Behind Act, especially its testing and accountability provisions
• •State efforts at increased educational standards and accountability
• •The 1999 regulations to the 1997 re-authorization of the IDEA, which are only a few years old and have only recently been implemented, if at all, in many LEAs.

These changes should be allowed to be fully implemented in order to gauge their effect before further changes are made

Throughout its 25 year tenure, the IDEA has been pitifully implemented, largely unenforced and underfunded on a grand scale. Nevertheless, the law has been extremely successful in meeting its goal of improved access to public education for children with disabilities. Credit for much of this success goes to school staff and families at the individual student level.

When evaluating improvements to this system, do not confuse problems which must be resolved through implementation with those that require changes to statute and/or regulation. We do not believe that actual statutory change is necessary to solve any of the problems addressed in the report, with the exception of changes to the funding structure.

The Cart Before the Horse Problem

There are a several good suggestions in the report, which if properly implemented might improve the system. However, these are as yet untested theories and will require time and money to implement and test their effectiveness. It makes sense to attempt to implement some of these positive suggestions prior to making changes to the system overall - changes which could have negative implications for current students and potentially, for future students as well.

For example:

Reductions of Available IDEA Funding

• •The report makes a number of suggestions that could, if implemented, reduce the amount of money currently available for special ed. services, such as allowing IDEA funds to be used to supplement other public education programs (e.g for pre-referral interventions) (p. 22, 35), allowing IDEA funds to be used for "parent choice programs "(p. 40), changes to the IDEA funding formula (p. 30-32), and potentially increasing IDEA funding for charter schools (p.41). LEAs and parents already complain bitterly that there is not enough money to provide the services required.

• •Pre-referral interventions and scientifically based instruction may one day reduce the number of students who require special education services in certain eligibility categories. If a dramatic decrease in the number of students occurs, then it might makes sense at that time to consider changes to the funding structure of special education services and/or change in the definition of LD services in keeping with this outcome. (See pages 23-27)

But we don't know this yet. What if this assumption is incorrect? What if we miss students who need special education -- how do we find them later before they drop out? How can we afford to serve them? If we change the definition of SLD eligibility in keeping with the pre-referral philosophy, what happens to students already eligible who did not receive those interventions? Cutting the program over all (which includes re-directing funds) will cause harm to currently eligible students. Also, many of the proposed improvements to the system that are commonly accepted by critics of all stripes (e.g. the need for better pre-service and in-service staff preparation) will cost money. Where is this money to come from if we reduce IDEA funds now?

The SLD evaluation requirement should include a student-centered, comprehensive evaluation and problem solving process by an inter-disciplinary team. Students must be evaluated on an individual basis and assessed for intra-individual differences in listening, thinking, speaking, writing, spelling, and mathematical calculation. Defining eligibility as a failure to respond to instruction will not be an effective measure, because school staff do not uniformly have the ability to implement the instruction that would be required, and to measure and analyze the results sufficiently to draw accurate and consistent conclusions about eligibility. In fact, one of the biggest problems with SLD eligibility evaluations is that state criteria are not applied consistently at the LEA level. If an even more difficult and longer term evaluation is developed, why would it be done any better than the current one? Do not change the definition of SLD in this manner until school staff are trained to properly implement it.

In addition, there is a large population of potentially eligible students that is not being properly served at present. As explained in the recent Report of the Surgeon General's Conference on Children's Mental Health: A National Action Agenda, 1 in 10 U.S. children and adolescents suffer from mental illness severe enough to cause some level of impairment. Yet, in any given year, it is estimated that fewer than 1 in 5 of these children receives needed treatment. This problem is not solely the responsibility of public education -- services elsewhere in the community fail these children as well. Nor are all of these children IDEA eligible. However, they do make up a significant group who are currently under-served in public schools and who could especially benefit from preventative services. Serving them effectively however, is not free.

Even from the perspective solely of cost-effectiveness, students with learning and behavior problems comprise a significant portion of our nation's future workforce. Their ability to "listen, think, speak, read, write, spell, and do mathematical calculations" as well as their ability to get along with others and function socially is not something we can afford to risk. LEAs should attempt pre-referral interventions in general education using general education or other funds. If that approach is successful in reducing the number of IDEA eligible students, then consider changes to special education.

Conflict Resolution

There are a number of suggestions in the report regarding ways to reduce the overall amount of conflict within the system (i.e. to make it less litigious) and correspondingly to reduce the amount of paperwork and other purported drains on the system. Some of these are very good suggestions ( such as the use of IEP facilitators, mediation without the need for a hearing request, conciliation, training for administrators in collaboration and problem solving) and some require further clarification. Note: Increasing parents' access to reliable independent evaluations is another effective method for reducing the need for some due process hearings that was not mentioned in the report, also defining key terms such as "functional behavioral assessment."

The conflict in the system is the result of:

• •Inadequate implementation of the law
• •Inadequate enforcement of the law by state and federal officials
• •Insufficient funds to provided needed services
• •Inadequate understanding of the law's requirements by involved parties, among other reasons.

In actuality, a due process hearing request is threatened in very few IDEA cases. Few due process hearings are requested each year (approx. .16 % of the total number of Part B students in 1998 requested a hearing ⁽¹⁾) and fewer still actually proceed to hearing (approx. .054 % of the total number of Part B students in 1998). This works out to about 1 in 622 students who request a hearing and 1 out of 1844 whose cases actually proceed to hearing. We have no data regarding how many of these hearings are requested by school districts and how many by parents.

The report contains recommendations that could potentially reduce the amount of conflict by removing parents' opportunities to resolve problems encountered within the system. For example, if efforts to "eliminate paperwork" are not undertaken with great care and with input from parents, important tools for their participation could be lost. Until we have greater confidence in the system and a better understanding of what is meant by "paperwork" we cannot support this. The same is true of "streamlining" the regulations and changes to the IEP itself -- many more details are needed before we can form conclusions about them.

We oppose the elimination of benchmarks and short term objectives in the IEP, three year reevaluations and any other proposed changes to the IEP as they are described in the report, without additional information. The federal legal requirements for the IEP are quite succinct and meaningful -- it is their interpretation through various levels of bureaucracy that renders them burdensome and ineffective. Benchmarks and short term objectives in the IEP and three year reevaluations provide vital information for assessing progress and, oftentimes, are all we have available to determine student progress. Benchmarks and short term objectives are already supposed to be measurable, so there is no need to change the law to achieve this. Without the legal requirement, three year re-evaluations would not often occur. When parents are not present at IEP meetings, IEP teams could agree to even longer evaluative periods than are currently required.

We also need to know more about how binding arbitration (p.43), which results in the loss of appeal rights, would be implemented. Many parents know virtually nothing about their rights under the IDEA and most do not have ready access to legal representation, unlike most school districts. We have grave concerns about the unfairness inherent in "allowing" parties to waive important rights when they don't know what those rights are. Unless parents have equivalent access to legal representation and have been provided full notice regarding the appeal rights they will be losing, they should not be put in the position of bargaining them away.

If the reasons for conflict which currently result in hearings and/or litigation are actually reduced (parents are more satisfied with the system), and pre-hearing conflict resolution mechanisms are made more effective and accessible to parents, the amount of litigation will be inclined to shrink over time. But this hasn't happened yet. Do not remove parents' opportunity to resolve problems on their own until this theory is proven. Compliance with process is not nearly as effective a measure of success as is reliable outcome data. We very much support the transition from process to outcome measures, but until parents have some other method to resolve problems with their child's education, do not eliminate any of the legal protections they depend upon.

Some suggestions with which we agree:

Monitoring and Enforcement (pps. 10-16)

• •Implementation of focused monitoring, including technical assistance related to monitoring results and effective, consistently applied sanctions.
• •Creation of a separate office of accountability
• •Improved collaboration between agencies re: federal monitoring and enforcement of IDEA.
• •Greater transparency of state performance data (data that is sufficient in quality and amount to be of use in assessing a state's performance)

Other

• •Alignment with the LEA accountability elements of the No Child Left Behind Act (p.37-39).
• •Universal design in accountability tools. ( p. 26)
• •Funding recommendation re: high cost students (pps. 32-34)
• •IEP facilitators, conciliation, telephone intermediation, training for administrators in collaboration and problem solving, mediation available at any stage of the proceedings, conflict resolution and mediation training (p.42-44)
• •Affirmed commitment to the principles of LRE.
• •Better coordination of transition resources between and among federal agencies.
• •Screening of all pre-schoolers for problems with learning and behavior
• •Better participation by students with disabilities in standardized testing
• •Early intervention, but not at the risk of delaying appropriate services and/or forfeiting important legal rights.
• •That SEA goals for improvement must include indicators other than improvement in standardized test scores, such as improvement in graduation rates. (p.38)

Suggestions with which we disagree as they are described in the report:

• •"School choice" (p. 39-42) Students with disabilities already may seek placement in a private school if their needs are not being met (either directly through the IEP process or if their parents place them and then seek reimbursement). Thus placed, they retain their legal rights and the services required by their IEP. One flaw in the current system is that parents without the means to place a child and seek reimbursement must first go to a hearing if the district disagrees with the proposed placement. Rather than creating a system that removes students' IDEA rights, is not required to provide all services required by the IEP, and pays for only a portion of the tuition when they are placed in private schools, why not create a mechanism that allows poor parents the same rights as wealthier ones to place the student and seek reimbursement? Better yet, improve the public system so that very few students wish to or need to use the private system.

In addition, parental choice programs do not ensure that all students will be able to find a private school that will accept them. Many students with needs that are difficult to meet do not find the doors of private and charter schools open to them.

For example, in the largest school choice/voucher program in the country, in Milwaukee, although required by law to accept children with disabilities, only 8% of voucher schools actually accept students with disabilities, and most of those schools do not accept all children with disabilities, as they exclude children with severe cognitive and/or behavioral disabilities. Thus, the so-called "choice" proffered by the Commission, is likely to be a false promise to parents of children with disabilities, as they will likely be rejected by over 90% of the private schools they may wish their children to attend.

If all students do not really have choices, should money be diverted from the program which serves them all?

Economies of scale predict that many private schools are not going to be able to provide services as adequately or as cheaply as larger public school systems, which struggle themselves with the costs. Private contractors hired to run public schools are having difficulty making ends meet serving general education students, let alone provide the full panoply of special education services. Similar to the problems that result from using of HMOs to provide care for people with disabilities, private providers are necessarily focused on the "bottom line" and have an incentive to cut costs. As students with disabilities can be costly to educate, the inherent conflict between student as consumer and school as provider will be exacerbated. This is certainly not a successful method for reducing conflict between parents and schools. Will students truly receive needed services and if so, who will pay for them?

Thank you for the opportunity to comment on this report. Feel free to contact us for any further information you require at (202) 408-9514.

Sincerely,

Kathy McGinley

Deputy Executive Director for Public Policy, NAPAS

Diane Smith

Sr. Disability Legal Specialist, NAPAS

1. ¹ This percentage is based on 1998 numbers as this is the most recent data available publicly. These figures utilize the total number of students in Part B during that period and the total number of hearings requested and held, as reported to the National Association of State Directors of Special Education ( NASDSE). Therefore this does not account for cases in which parties file more than one hearing request and the reporting periods re: hearings and total student data may not correspond precisely.