HR 1350: SUMMARY OF MAJOR CHANGES - Learning Disabilities Association of America

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.

Learning Disabilities Association of America
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