News-in-Brief – May 2011

Appropriations Action Completed for Fiscal Year 2011

Congress finally concluded work on the spending bill for federal Fiscal Year 2011 (FY 2011) seven months after the fiscal year began. Funds for the U.S. Department of Education, not including money for Pell Grants, were cut overall by $1.251 billion or 2.7% below Fiscal Year 2010. Forty-seven education programs were cut, and an additional 38 programs were eliminated. In addition to the program cuts, the final bill had a 0.2% across-the-board cut, so even programs that were listed as frozen took a hit. Five programs, including the president’s priorities – Race to the Top, Investing in Innovation, and Promise Neighborhoods, received increases, as did the Head Start program which is housed in the Department of Health and Human Services.

Funding for the state grants and early education programs under the Individuals with Disabilities Education Act were frozen before the across-the-board cut was applied. IDEA National Activities programs were reduced, with Technology and Media Services taking a 34% cut. Adult education and career and technical education were also frozen with an across-the-board cut; however, the Tech Prep program was eliminated. Vocational Rehabilitation state grants were level-funded and not affected by the 0.2% cut.

Program eliminations include the Striving Readers literacy program and the Even Start family literacy program. The Javits Gifted and Talented program was also eliminated, taking away the only federal funding targeted to that student population. Also falling victim to this tight budget cycle were the Higher Education Demonstration Grants that support training for faculty to work with students with disabilities attending college.

Unfortunately the allocation given to the House Labor-Health and Human Services-Education appropriations subcommittee to fund programs for the next year, FY 2012, is a major cut below FY 2011 and below the president’s proposed FY 2012 budget. Specifically, the allocation is a cut of $18.2 billion below FY 2011 (-11.6%) and $41.6 billion (223%) below the president’s proposal. The Labor-HHS-Education bill most likely will not reach the House floor until early September, with the Senate following the House. With that schedule, there will probably be another series of Continuing Resolutions to keep the government operating, as Congress again fails to enact appropriations bills by October 1, 2011, the first day of FY 2012.

Major Literacy Bill Introduced in Senate

Senator Patty Murray (D-WA) recently introduced the Literacy Education for All, Results for the Nation Act (LEARN Act, S. 929). The LEARN Act would create high-quality literacy programs, beginning at birth through high school. LDA worked to ensure the legislation specifically includes students with learning disabilities. Senator Murray took up that charge, “ensuring…schools provide additional supports to address the specific learning needs of struggling readers and writers, including English language learners and students with disabilities.”

The LEARN Act will provide formula grants funds to all states for existing and new state and local school-based literacy programs, including a strong national evaluation component. States will provide competitive grants to local school districts targeted to low-income schools and schools with low literacy rates, providing professional development for instructional staff to enable them to provide high-quality literacy instruction for young children and school-age students. The legislation also supports state literacy leadership teams appointed by the State education agency, which must include, among others, an individual with expertise in special education.

Joining Senator Murray as original co-sponsors of this important legislation are Senators Reed (D-RI), Sanders (D-VT), Brown (D-OH), and Begich (D-AK).

LDA is part of a large coalition of education organizations, including a few special education groups, which have worked over the course of several years on developing language and encouraging introduction of this bill. Our efforts move now to finding additional co-sponsors and working to enact the legislation.

For additional information, please go to:

Child Find Case May Reach Supreme Court

The Supreme Court has asked for a brief from the U.S. Solicitor General as it decides whether to hear the case of Compton Unified School District v. Addison. The California case centers on the school district’s failure to identify or evaluate a student who was failing academically, working at a level well below her age group, and suffering from debilitating anxiety. The “child find” requirement in the Individuals with Disabilities Education Act (IDEA) requires school districts to identify, locate, and evaluate for special education services any child suspected of having a disability, regardless of the severity of the disability. The issue under the case is whether the school district failed its obligation to identify, evaluate and provide timely services to the child, and by virtue of that failure denied the child a free appropriate public education, as required by the IDEA.

In an administrative due process hearing brought by the family, the hearing officer ruled in favor of the child and family and ordered an independent evaluation, completion of an earlier referral for a mental health assessment, and academic tutoring by a credentialed teacher.

In an interesting reading of the law, the school district appealed the ruling to federal district court, stating the IDEA doesn’t “require or authorize a due process hearing or impose liability” for a school district’s “negligent failure” to identify a student as eligible for special education services under the IDEA. The district argued further that the allegation that the district had not met its obligation under the child find provision could not be the basis of a due process complaint because “the District’s failure to assess her for eligibility for SLD services was attributable to neglect, rather than a refusal to act.” In other words, the school district says they didn’t refuse to evaluate the student, but instead simply did not act.

The district court ruled against the school district. The school district then appealed to the Ninth Circuit Court of Appeals, which upheld the lower court ruling. The Ninth Circuit cited the 2009 Supreme Court decision in Forest Grove School District v. T.A., stating that a “reading of the [Individuals with Disabilities Education] Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.”

The school district now has appealed the Ninth Circuit ruling to the U.S. Supreme Court. LDA will keep you informed of the status of that appeal.

Bill Would Overturn Supreme Court Decision

A bill has been introduced in the House and Senate to overturn the 2006 Supreme Court decision in Arlington Central School District v. Murphy. That decision denied the right to recover fees for expert witnesses to parents who win in due process hearings and court cases under the Individuals with Disabilities Education Act (IDEA). The IDEA Fairness Restoration Act would amend the IDEA to incorporate expert witness fees under the definition of “attorneys’ fees,” including the reasonable costs of any test or evaluation necessary for the preparation of the parents’ or guardians’ case.

If enacted, this legislation would restore the original intent of IDEA and make due process hearings more equitable and affordable for families of children with disabilities. The testimony of expert witnesses often is the key to parents’ success in obtaining appropriate educational services and accommodations for their children. Expert witnesses may include psychologists, doctors, therapists, and educational and behavioral experts, among others.

The Senate bill (S. 613) is sponsored by Senator Tom Harkin (D-IA). The companion bill in the House (H.R. 1208), is co-sponsored by Representatives Chris Van Hollen (D-MD) and Pete Sessions (R-TX).

Safe Chemicals Act Addresses Health Risks

In a move to modernize the Toxic Substances Control Act (TSCA), Senator Frank Lautenberg (D-NJ) and four Senate colleagues have introduced the Safe Chemicals Act of 2011 (S. 847). LDA worked through its Healthy Children Project and as part of the Safer Chemicals Healthy Families Coalition to bring this bill forward. The Centers for Disease Control and Prevention has established that more than 212 industrial chemicals can be found in the bodies of most Americans, including at least six known carcinogens and dozens that have been linked to cancer, birth defects, and other adverse health effects. However, the TSCA, which governs these chemicals, has never been amended since originally passed in 1976, despite huge changes in chemical production and use and increased understanding about the effects of chemicals on health and the environment.

Eighteen states have led the way for improved federal legislation by passing laws to address health hazards from chemicals. A number of major U.S. corporations, including Staples, SC Johnson, Wal-Mart and Kaiser Permanente, also have adopted policies restricting toxic chemicals.

Specifically, the Safe Chemicals Act of 2011 would require the Environmental Protection Agency (EPA) to identify and restrict the “worst of the worst” chemicals, the ones that persist and build up in the food supply. The Act also would require basic health and safety information for all chemicals as a condition for entering or remaining on the market. In addition, the bill would shine a light on the effects of toxic chemical exposures in low-income and minority populations. Scientific methods for testing and evaluating chemicals would have to be updated to reflect National Academy of Sciences best practices. Most important, the bill generally would provide the EPA with the tools and resources it needs to identify and address chemicals posing health and environmental concerns.

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