LDA Legislative News – August 2015

Advocates Mark 25th Anniversary of ADA

On July 26, 1990, President George H.W. Bush signed into the law the Americans with Disabilities Act (ADA).  The effort to end institutional discrimination against individuals with disabilities was a true bipartisan effort, with Republican Senator Lowell Weicker as the Senate sponsor and Democratic Representative Tony Coehlo sponsoring the House version.  Now on the 25th anniversary, the ADA continues to provide protections for individuals with disabilities in hiring, public accommodations, healthcare, education and other arenas and has served as a model for other countries as they move to enact similar laws.    

While it took only about two years between introduction of a bill and passage in Congress, the law was a result of many years of congressional investigation of discrimination on the basis of  disability.  In fact, Congress passed several laws that touched on certain aspects of discrimination – the Architectural Barriers Act, the Air Carrier Access Act, and Section 504 of the 1973 Rehabilitation Act – before addressing the problem through comprehensive legislation.  Four different committees in the House of Representatives and one in the Senate, not to mention various subcommittees, examined the ADA bills.  Those committees held eighteen hearings, and there were numerous amendments and debates in committee and on the floor before passage. 

Many members of Congress played key roles in getting the bill passed.  However, there were a few who are seen as the real heroes of the process.  Those members included Senators Lowell Weicker (R-CT), Tom Harkin (D-IA), Edward Kennedy (D-MA), Robert Dole (R-KS), Paul Simon (D-IL), James Jeffords (R-VT), David Durenberger (R-MN), and Orrin Hatch (R-UT; and Representatives Steny Hoyer (D-MD), Major Owens (D-NY), Hamilton Fish, Jr. (R-NY), Silvio Conte (R-MA), and Tony Coelho (D-CA).

Given the situation individuals with disabilities faced before passage of this law, the ADA has moved the country forward significantly.  This does not mean, as with all civil rights law, that people with disabilities no longer encounter discrimination.  However, for the last 25 years and into the future they have strong federal law that supports their acceptance into every part of American society.  LDA is proud to acknowledge this important milestone and to support continued strong enforcement of the law for all citizens with disabilities.

Congress a Step Closer to ESEA Finale

Congress has been working to reauthorize the Elementary and Secondary Education Act (ESEA, currently known as No Child Left Behind) since 2007, the year in which the bill should have seen action.  In July the House and the Senate each passed its version of a renewed law, with some major differences between the two bills.  The next step in the process is to appoint a conference committee of House and Senate members charged with negotiating each difference in the two bills.  The resulting package will be voted on by each chamber and ultimately sent to the president.

Despite the differences in the two bills, both have one overarching theme: reducing the federal footprint in education.  The House goes much farther than the Senate by consolidating many smaller targeted grant programs and freezing funding for the life of the bill at the Fiscal Year 2015 (current funding) levels.  The Senate maintains a number of the grant programs eliminated in the House bill, such as the physical education, arts education, and after-school programs and does not lock in specific funding levels.  The basic structure of current law is maintained in the Senate, while the House bill reiterates throughout the primacy of the States’ role in education.

The House Student Success Act (H.R. 5) and the Senate Every Child Achieves Act (S. 1177) eliminate the current “adequate yearly progress” (AYP) provision that required 100 percent proficiency by 2014.  AYP became controversial very early on in the implementation of No Child Left Behind, resulting in both bills replacing AYP with State-designed accountability systems.

The two bills address State accountability in different ways, with the House providing fewer parameters than the Senate.  That said, both continue to require annual testing as in current law, but allow the use of growth measures.  Instead of defining or identifying a specific percentage of “low-performing” schools for specific interventions, each chamber again gives more latitude than current law to the States.  The Senate would require States to use certain factors as a “substantial” part of the process of identifying these schools, but allows States to define “substantial.”  The House tells States to find low-performing schools, again defined by each individual State, and provide interventions, but does not mandate specific interventions.  Current law includes very specific levels of intervention and consequences if schools do not achieve.

Both bills also eliminate the “highly qualified teacher” (HQT) provisions.  The House bill does not replace HQT with a new structure, while the Senate would require teachers in Title I programs to meet applicable State certification and licensure standards.  The Senate also would require States to describe how low-income and minority students in Title I schools are not disproportionately served by ineffective, out of field, or inexperienced teachers.

Current law regarding the frequency of State assessment is maintained in both bills in math, reading/language arts, and science. The House bill allows parents to “opt out” of assessments for their child for any reason, whereas the Senate bill notes nothing in Title I would preempt State or local law regarding parental decisions on participation in assessments.

As for what the testing would look like, both allow the requirement for annual assessment to be met through a single test or through multiple tests during the school year that result in one summative score.  The Senate provides a pilot program for up to seven States to try “innovative” assessments such as competency-based cumulative year-end assessments.  In addition, the Senate bill requires States to set a limit on the amount of time devoted to State and local assessment administration.  The House bill would allow the use of local assessments instead of State tests, if the local tests are State-approved, meet other assessment requirements and provide comparable data across districts.  The Senate bill does not specifically allow for the use of local tests.

There are a number of contentious issues that will have to be reconciled between the 600+ page House and the over 1000-page Senate bills.  The August congressional recess will provide an opportunity for the staff to start working on resolving differences before the members return in early September to deal with the most difficult issues.  There is a  good deal of momentum toward getting a final bill some time in the fall, but congressional schedules more than actual work can sometimes dictate how quickly these processes move.  LDA will keep you posted when the conference committee is appointed and how the major issues are resolved.

Appropriations Process Stuck Again

This story is getting to be an annual event, and it has happened again.  Congress pushes to the brink of shutting down the government and then has to put stopgap measures in place to keep the agencies running until funding is settled.  Fiscal Year (FY) 2015 ends on September 30, 2015, but Congress has not made sufficient progress toward passing the 12 appropriations bills to meet the start of the new fiscal year. 

This year marks a new achievement, even though the end game will have to be postponed.  For the first time in six years, House and Senate appropriations committees have finished work on all 12 bills.  However, there is little or no chance these bills will be finalized before the end of the fiscal year with few legislative days left and Congress on recess through the month of August until after Labor Day. 

The more serious problem is the tight budget cap imposed on the appropriations subcommittees.  The Ryan-Murray budget deal, crafted in 2013 by the chairmen of the House and Senate Budget Committees Representative Paul Ryan (R-WI) and Senator Patty Murray (D-WA), provided two years’ relief from the full impact of cuts imposed under the Budget Control Act of 2011 (BCA).  However, that deal ends at the start of FY 2016 on October 1, 2015.

The BCA budget caps are slated to shrink each year until 2021.  With the Ryan-Murray deal coming to an end, Congress will have to craft another budget compromise in order to escape the harsh cuts resulting from the tight budget caps.  If the budget caps are exceeded, that will trigger another sequester (across the board cut). 

The president’s budget proposal for FY 2016 included funding at the pre-sequester level.  However, the budget committees adhered to the BCA cap.  Key members of Congress in both parties have stated the budget caps are too low, requiring very deep cuts in many important programs.  The only way to resolve this problem is for Congress to pass another deal similar to Ryan-Murray.

There is a strong likelihood such a deal will emerge very late in the year or in early 2016.  So now it is simply “watch and wait.”  Until then Congress will have to pass a Continuing Resolution (CR), a stopgap measure to keep the government operating, which will most likely happen as soon as they return in early September.  The question is whether that will be a short-term CR perhaps into December or a longer-term plan that will keep funding at current levels or even reduce it while Congress decides how to resolve the larger budget question.

Bill Addresses IDEA Maintenance of Effort

Representative Tim Walberg (R-MI) has introduced the Building on Local District (BOLD) Flexibility in IDEA Act giving local school districts additional exceptions under the IDEA maintenance of efforts provisions. As long as services to students are not impacted, the bill would give some leeway for school districts facing serious financial situations or when efficiencies in special education have been achieved.  

Maintenance of effort (MOE) generally requires federal grantees, including State departments of education and local school districts, to demonstrate that the level of State and local funding is constant from year to year.  The goal of MOE under the IDEA is to ensure provision of services to students is not affected by changes in fiscal situations; however, challenging economic times sometimes make this difficult for States and school districts.

Exceptions already exist in the IDEA under the MOE provisions. School districts are allowed to reduce their level of expenditures below the preceding fiscal year’s amount if the reduced level results from voluntary decreases in special education staff, fewer students with disabilities enrolled, ending obligations for exceptionally costly programs for particular students, or termination of high cost expenditures on equipment or construction. 

The Walberg bill would add two exceptions to MOE.  The school district would be allowed to decrease its level of spending when the school district achieves “improved efficiencies” and when there are reduced expenditures for employee benefits for special education personnel, as long as there is no reduction in special education services.  Local school districts may also be given a waiver by the State education department for one fiscal year at a time for exceptional or uncontrollable circumstances, such as natural disasters or serious unforeseen declines in financial resources. 

The Senate currently does not have a similar bill.  Also, there are some members of Congress and some advocacy organizations that do not want to open up the IDEA for amendment outside of the reauthorization process.  Under any circumstances, given the tight fall congressional schedule there is little chance this bill will move forward in the near future.

Juvenile Justice Bills Advance in House and Senate

The Senate Judiciary Committee, in a strong bipartisan vote, approved a bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA).  A House bill, the Youth Justice Act (H.R. 2728) introduced in June by Representative Bobby Scott (D-VA), is based on the bipartisan Senate bill.  The JJDPA, last reauthorized in 2002, is the federal law that sets national standards for the care of youth in the juvenile justice system. 

The Senate Juvenile Justice and Delinquency Prevention Reauthorization Act of 2015 (S. 1169), sponsored by Senators Chuck Grassley (R-IA) and Sheldon Whitehouse (D-RI), reflects updated practices based on a larger body of knowledge about what works in juvenile justice systems.  Since the Senate bill was originally introduced in April, members have added provisions that would make federal funding for evidence-based programs a higher priority, including requiring the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) to report annually on criteria for identifying evidence-based and promising programs for delinquency prevention.

The legislation requires the Justice Department to offer training and technical assistance to States on best practice and protocols and strengthens provisions to help children with mental health and substance abuse issues.  The bill also calls for States to consider alternatives to detention for nonviolent youth who enter the criminal justice system.

Both House and Senate bills address the disproportionate number of youth of color who are in the juvenile justice system.  Youth of color currently represent 71 percent of youth in detention.  States are required to take specific steps to address this situation. 

Requirements are expanded for State juvenile justice and delinquency plans to include community-based alternatives to the detention of juveniles in correctional facilities, enhanced mental health and substance abuse screening, and a description of the use of funds for reentry into the community of juveniles after release. 

LDA has joined other advocacy organizations in supporting this effort to reauthorize the JJDPA to ensure youth with disabilities within the juvenile system are protected and receive special education and mental health services.  The organization also supports appropriate prevention programs to avoid moving youth into the juvenile system, whenever possible.

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  1. Richard Baumgartner says

    Does the legislation at this stage still maintain the federal ban on modified or somewhat off-grade-level testing for special ed students as I believe LDA (and definitely certain other LD advocacy groups) has demanded? If so, this only harms many of the very students LDA claims to advocate for. No matter how hard everyone works, most students (and there are many) with IQs in the range of 65 to 85 will never pass these challenging state tests. Does no one else see this and understand the consequences?

  2. In addition to the passage of ESEA, Congress ought to address some scientific realities about how children learn.
    1) Dyslexic children whose language structures are located mostly in the right hemisphere, have shown an ability to learn effectively, if they receive synthetic phonetic instruction in reading and spelling. Check research of Dr. G. Reid Lyon of NIH and Dr. Sally Shaywitz of Yale University Child Development clinic.
    2) Great Britain and Australia have passed government mandates that require synthetic phonetic teaching in all elementary schools. Because American legislators have not yet passed such laws, about 30% of our children fail to achieve their potential due to inadequate language instructions. If Congress would act to help the 30% of children with language disabilities such as dyslexia and similar problems, the Universities would require courses in synthetic phonics, and future teachers would know how to help most of the students who are now struggling with language. The sad truth about today’s teachers is: they are licensed after receiving their education degrees, and they seldom know how to teach synthetic phonics such as Orton Gillingham or Sue’s Strategies. Please Congress, help our American children!

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