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News Feature
NCD #02-381
August 14, 2002
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY
mquigley@ncd.gov
National Council on Disability Feature: Making
the Individuals with Disabilities Education Act Work Better
WASHINGTON-The National Council on Disability (NCD)
released its 2001 annual National Disability Policy: A Progress
Report, on July 26, 2002. The report addresses several important
issues including a most timely one, the Individuals with Disabilities
Education Act (IDEA).
The discretionary programs under IDEA expire on September
30, 2002, and Congress and the Administration have indicated strong
interest in reform of the mandatory special education program as
well. The NCD Progress Report makes recommendations for congressional
consideration during the reauthorization in the Education section
of the Report.
Impact of No Child Left Behind Act on IDEA
With the adoption of No Child Left Behind Act (NCLBA) Congress charted
a new course in the nation's general education policy, which has
a direct impact on the IDEA. If these two Acts are to work in harmony,
a comprehensive assessment of NCLBA implications on special education
is needed. The potential for confusion and inconsistency between
the two and need for an assessment is amply illustrated by issues
surrounding the applicability of new testing requirements and school-wide
and district-wide accountability standards for students in special
education. The NCD Report calls on the Department of Education (ED)
to undertake a thorough examination of the ways in which NCLBA bears
on or modifies existing law and regulations concerning students
with disabilities, the obligation of states and school districts
toward these students, the requirements for state monitoring of
special education services and programs, and other related issues.
Enforcement: Back to School on Civil Rights
In January 2000, NCD released a report on the monitoring and enforcement
of IDEA, based on an examination of twenty-five years of monitoring
reports from ED. The reports reflected significant noncompliance
with the law.
Overall, this report found that federal efforts to
enforce the law under administrations of both parties have been
inconsistent and ineffective. Enforcement is too often the burden
of parents, who must invoke complaint procedures and request due
process hearings to obtain appropriate services and supports for
their children. Despite long-standing noncompliance with IDEA provisions,
ED has made limited use of enforcement through its sanction authority.
To fix this problem, the Report highlights NCD recommendations
for congressional consideration:
- NCD recommends an expansive role for the Department
of Justice (DOJ). Congress should authorize and fund DOJ to independently
investigate and litigate IDEA cases, as well as administer a federal
system for handling pattern and practice complaints filed by individuals.
NCD also recommends a 10 percent set-aside provision for complaint
processing by DOJ and ED.
- NCD recommends that ED and DOJ be directed to develop
national compliance standards, improvement measures, and enforcement
sanctions to be triggered by specific measures and indicators
of a state's failure to ensure compliance. Stakeholders, including
students with disabilities and parents, should be consulted by
the Departments for consistency and clarity as they develop and
implement a range of enforcement requirements.
- NCD recommends that Congress authorize more funding
for state level technical assistance networks, self advocacy and
monitoring training for students and parents and other partners,
and free and low> cost legal services for families through a formula
that triggers additional funding equal to 10 percent of every
IDEA, Part B increase.
Discipline
The NCD Progress Report notes that if no child should be left behind,
then certainly no student should be denied education services. This
has been a major issue of debate around the discipline of students
with disabilities under IDEA. The focus on sanctions for students
with disabilities should be eclipsed by discussions highlighting
the need to understand the underlying causes of student behavioral
problems, recognizing the impact of the school environment on behavior,
both positive and negative, and addressing the importance of quality
services, including appropriate positive behavioral supports, access
to technology and other services necessary for meaningful participation.
It is important to recognize that if students are warehoused or
not challenged to achieve their maximum potential, the occurrence
of behavior problems comes as no surprise. NCD recommends that the
current discipline requirements be carefully examined and simplified
where possible, without eliminating any protections for students
with disabilities. No cessation must remain an absolute requirement
in the law.
Overrepresentation from Diverse Backgrounds
The NCD Progress Report includes a discussion of one of the great
concerns of many observers of IDEA: the statistical overrepresentation
of children from African American and other diverse backgrounds
among children and youth deemed eligible for special education services.
A response to the problem is urgently needed, but that response
must be appropriate and effective. NCD recommends that before moving
towards restricting services for certain categories of children,
specifically children with diagnosis that are most often considered
to be over-identified (attention deficit and hyperactivity disorder,
and learning disabilities), Congress should authorize an exhaustive
study of the issue by leading medical, educational, behavioral,
and other scientific and legal experts.
Due Process
IDEA embodies a commitment to parental participation in the formulation
of educational interventions for their children. Parents have the
right to participate in and agree to the provisions in their child's
individualized education program and the right to appeal when they
are excluded from this decision making process or when the results
of the individualized education program process do not conform to
their sense of their children's needs. These are central features
of the overall statutory commitment to family involvement in the
education of children with disabilities. Critics of IDEA believe
the due process rights provide parents with an invitation to excessive
litigation, unduly enriching lawyers and interfering with the ability
of educators to implement appropriate plans and decisions for students
with disabilities. The NCD Progress Report indicates that there
will be calls to Congress to impose procedural limitations on the
ability of parents to assert and defend their children's rights
and needs. NCD reports to Congress that they should resist any attempts
to diminish parental participation/consent, appeal rights, or attorneys
fees and other due process rights in the reauthorization of IDEA.
If they remain concerned that due process rights are interfering
with the educational process, Congress should authorize a study,
employing empirical and evidence-based tests and data-gathering
instruments, to determine the real impact of parental involvement
and due process rights on the quality of special education.
Assistive Technology
Technology is important to an appropriate education for many students
with disabilities and to ensure access, NCD recommends that when
a school district denies AT, information should be provided regarding
what was tried and rejected, including a clear rationale. Furthermore,
NCD recommends that the data explaining AT decisions be collected
solely for monitoring and oversight purposes, evaluation of overall
trends in assessment and service delivery, and in anticipation of
personnel preparation and specialization needs.
Access to School Technology, Instructional Mateials
and Media
By law, newly constructed schools must be physically accessible
to individuals with disabilities. Yet, the closely related premise
that school computers, textbooks, and other instructional materials
and media must be accessible to all students remains elusive. NCD
recommends that the IDEA reauthorization make clear that accessibility
of information technology and curricular materials is a responsibility
of school systems and provide adequate authority and resources for
the provision of technical assistance to state and local education
agencies regarding accessible instructional materials.
Disability Harassment
In recent years, our nation has made substantial progress in addressing
sexual harassment and all forms of bullying and intimidation in
schools. Disability harassment must be addressed with the same vigor
and purpose. Technical assistance in preventing, identifying, and
halting disability-based harassment should be the primary tool of
federal involvement. Schools should not be allowed to escape responsibility
if their efforts fall short of reasonable expectations or if they
fail to implement measures to protect victims and to control offenders.
NCD recommends that Congress, in the IDEA reauthorization,
include strong anti-harassment measures in the law.
Full Funding
NCD recognizes that the Federal Government faces its own fiscal
constraints, but there may be few cases in which the investment
of additional funds has as much leverage value or in which an increased
federal commitment can do as much to protect and preserve public
support for a program that has been and remains a centerpiece of
national education policy. NCD strongly recommends that Congress
use the IDEA reauthorization as the occasion for implementing full
funding coupled with full enforcement of the law.
Accountability
With accountability a focal point of national education policy through
NCLBA, no less should be expected for students with disabilities
than for students without disabilities. Among disability statistics,
perhaps the most shocking is that diploma graduation rates for students
receiving special education hovers between 27 to 55 percent, as
compared to an estimated 75 percent for students without disabilities.
NCD recommends that Congress incorporate clear, meaningful and enforceable
accountability provisions in the IDEA reauthorization, making states
and local school districts responsible for the outcomes achieved
by their students. Technical assistance should be provided for those
schools that fall short, as well as rewards and penalties, as appropriate.
And, technical assistance must be required for states where graduation
rates for students in special education fall significantly behind
those for all students.
For more information, contact Mark Quigley or Martin
Gould at 202-272-2004.
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Source: National Disability Policy: A Progress Report,
December 2000-December 2001
http://www.ncd.gov/newsroom/publications/progressreport_07-26-02.html
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