NAPAS National Association of Protection & Advocacy Systems
ACTION ALERT
June 18, 2003
Senate IDEA Bill is Much Better – But Still Needs Work
Parents and Advocates Need to Weigh in !!!
BACKGROUND
The Senate introduced its bipartisan bill to reauthorize the Individuals with Disabilities Education Act on Thursday, June 12. The bill, S. 1248, the Individuals with Disabilities Education Improvement Act of 2003, was introduced by Senator Gregg (R-NH), the Chairman of the Senate Health, Education, Labor and Pensions Committee and by Senator Kennedy (D-MA), the Ranking Member on the HELP Committee. The bill is scheduled for a mark-up in the HELP Committee later this month, most likely on Wednesday, June 25.
At this point in time, the Senate bill S. 1248 is a drastic improvement over H.R. 1350. Parents and disability advocates applaud the members and staff of the Senate Health, Education, Labor and Pensions Committee for developing bipartisan legislation that attempts to find compromise in many complex educational issues. However, it still is of critical importance that advocates work to strengthen the Senate bill even more -- since whatever passes the Senate will have to be conferenced with the House bill. The Senate bill as introduced is better in relation to its approach to almost every issue. Some standouts relate to:
- The broader application of positive behavior supports,
- The need for states to do more around alternate assessments,
- An additional focus on school to life transition,
- Funding for parents to get better legal information,
- The reinstating of many of the current discipline protections,
- The reinstating of the abrogation of sovereign immunity provision,
- The assurance of the enforceability of written mediation and hearing officer decisions,
- Improved personnel standards, and
- The fact that it does not include a cap on attorney fees or a demonstration related to reducing the paperwork “burden”.
This is not to say that everything in the bill is perfect. There are a number of issues that NAPAS staff and other advocates continue to address. One of these is discipline. This alert addresses a several issues but not discipline because the scene on that issue is constantly changing. We will be sending you a discipline-specific Alert tomorrow.
Remember, the House bill, H.R. 1350, represents an unprecedented erosion of children's and parent's rights under IDEA. It is a bill that is opposed by families and disability advocates across the nation. It is also the bill that will have to be “conferenced” with any IDEA bill that passes the Senate. In a Conference Committee, the differences between two bills are worked out. This makes it even more important that the Senate bill is as strong as it can possibly be. There must be something good on the conference table. Enactment of the provisions in the House bill would limit the number of children with disabilities who will get a free, appropriate, public education (FAPE); increase burdens on parents while decreasing school district obligations; and ultimately result in harm to students with disabilities.
A summary of the bill and a side-by-side of the Senate bill compared with current law have been posted on the Education and Public Policy list serves and the side-by-side is also posted on the NAPAS web-page.
Some Provisions in the Senate Bill Need Improvement.
1. Funding Issues- The bill would allow Local Educational Agencies (LEA) to redirect a substantial amount of money from direct student services to other purposes, including using existing IDEA Part B funds to provide services to students not eligible under the IDEA (e.g. for “pre referral” services in reading and behavior). This means districts may use funds out of the current budget, not just funding increases, for these activities. While we strongly support pre-referral services for students with learning and behavioral difficulties, the “pre referral programs” proposed in the Senate bill do not contain any procedural protections for students, do not set a timeline or criteria that would require that appropriate students be evaluated for IDEA eligibility, so that IDEA eligible students could potentially languish in these programs for years, and provide no minimum level of services (e.g. the FAPE standard for IDEA eligible students.)
- The bill replaces short-term objectives with quarterly reports. This substitution does not get at one of the essential functions of benchmarks and short-term objectives -- to guide the progress toward the annual goal by breaking the goals into manageable and understandable steps. It is not enough just to say “what happened”, the IEP must also say “how it will happen.” If there are no objectives to lead toward the goal, even good reporting will not help the student achieve his or her goals. In addition, this new reporting requirement may result in additional paperwork for school staff. It would be much better for children and parents to retain the benchmarks and short-term objectives provided in current law.
- The bill limits due process protections for students with disabilities. Specifically, the bill requires that parents meet with school districts before their case may proceed to hearing. This provision, called the Preliminary Meeting, is unnecessary and will in some, if not many, instances be used to coerce parents into giving up their children’s due process rights. This is especially true since parent’s attorneys will most likely not be present at the meeting. The provision is unnecessary because current law already gives districts opportunities to resolve the problem.
- Often the district already knows about the problem before the hearing request is filed. If the parent has shared the problem with the district, they should not be forced to meet again and wait 15 additional days.
- When it the district does not know about the problem ahead of time, mediation is a better way to resolve these disputes than this “preliminary meeting”. This is because there is a trained, independent third party present at mediation to explain the law to parents when necessary and to prevent coercion.
- Also, current law requires parents to “state the nature of the problem of the child” and “a proposed resolution of the problem” in the hearing request (complaint.) With this information school districts know what they need to do to cure the problem and can do so if they choose. If the parent does not complete the notice properly, districts may address this issue separately—a meeting with the parent is not necessary to do this, especially if the parent has retained a lawyer.
- Finally, it is unclear how this new provision relates to the new discipline provisions. If a parent requests an expedited hearing to protest a discipline decision, must they attend this preliminary meeting as well?
4. Notice Provision
- Parents will be prevented from raising issues at hearing that were not included in the due process notice. This might be fine if the parent was represented by a lawyer. However, most due process hearing requests are written by un-represented parents. It is unfair to hold them to the same standard as lawyers or school administrators.
5. Statute of limitations
- This provision is problematic for several reasons. First, disabilities, their causes and symptoms often do not expose themselves in a clear and linear manner. It can take years to determine what a child really needs. Too often parents trust the school districts and do not know that educational program is not working. This problem will be made even worse if the benchmarks and measurable short-term objectives are not retained in the reauthorized IDEA and IEP meetings are held less often. This means that parents will have even less information about what is working not. Parents do not have ready access to lawyers and legal information and often do not know their rights. In some cases, districts promise to fix problems and parents who do not want to “rock the boat” wait before filing a due process hearing request.
- In addition, the provision that allows states to set their own, possibly very short, statues of limitation should be removed so parents and students all over the U.S. have the same rights. Other areas of the law, such as personal injury, recognize these problems and allow the statute of limitations to be tolled (put on hold) until the child is older. The IDEA should do no less.
6. Hearing Officer Authority
- The bill restricts the authority that hearing officers have to make decisions on procedural violations. This means that school districts will have greater incentives to not provide proper notice and other important parent/student procedural rights. This provision makes the statute of limitations provision even more unfair to parents.
Potential Amendments to Worry About
- An amendment similar to the Case amendment added to the House bill that would limit fees to parents’ attorneys by giving governors the authority to set the rates for attorney fees – at any level, e.g. $1.00 per hour. This would make fewer lawyers available. (This provision was added to the House bill by a Democrat, Representative Case (HI).)
- An amendment for a paperwork waiver- In the House bill, Secretary of Education is authorized to grant waivers of paperwork requirements for up-to-ten states (for up-to-four years each) in the name of paperwork reduction. The requirements for these waivers are unspecified. They could waive requirements for IEPs, IEP meetings, parent notices, and other important rights.
ACTION NEEDED: It would be best to work in coalition with parents, parent organizations, and disability organizations to get these important messages across.
- Send your comments to idea_feedback@labor.senate.gov, or fax at: 202-228-0929. E-mailed and faxed responses should be sent to the attention of and titled “Annie and Connie – IDEA Reauthorization Feedback.” *Please note that the email address and fax number will only be available through Friday, June 20, 2003.
- Contact the two Senators from your state. Getting your views to your Senators is critical. It is extremely important that you make contact if your Senators are on the Health, Education, Labor and Pensions Committee (see HELP Committee list below)
- Call, write, or e-mail their State and DC offices. (see contact information at the end of this Alert.)
- Make personal visits to their State staff over the next week and up until the bill is scheduled for a floor vote. It is especially important for parents and children to be highly visible.
- When you contact your Members tell them that the outcome of any IDEA action should not only protect but also strengthen the educational services and supports available to children with all types of disabilities.
- Tell them that the outcome of any action on IDEA should protect and strengthen the procedural safeguards that are in place to help ensure that the children with disabilities in their state get the services they need. This bill does not do that! This bill threatens the rights of children and parents.
- Talk about the issues that most affect you and use personal stories of IDEA successes!!!!
Please let Kathy McGinley at NAPAS know what your Members say – Kathy@napas.org or 202-408-9514.
CONTACT INFORMATION:
1. HELP Committee Members
- The following web-site will lead you to your Senate Member’s web-page, which includes contact information for both DC and District offices. http://www.house.gov/house/MemberWWW.html
- The phone number for the U.S. Capitol Switchboard is 202-224-3121
IDEA Parent-Kid CALL-IN DAY… On Friday, more information will be provided on activities targeted for June 23rd. Please get ready for a day of total IDEA action.
