Background

The National Council on Disability (NCD) is an independent federal agency making recommendations to the President and Congress on issues affecting 54 million Americans with disabilities. NCD is composed of 15 members appointed by the President and confirmed by the U.S. Senate. NCD's overall purpose is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society. NCD makes recommendations to the President, Congress and federal agency officials concerning ways to better promote equal opportunity for all individuals with disabilities. In addition to our statutory mandates, NCD's mission is to provide a voice in the Federal government and to Congress for all people with disabilities in the development of policies and delivery of programs that affect their lives. This was the direction that we received from over 300 disability advocates that convened in Texas in 1996 for a disability policy summit; NCD was charged by these people to investigate their concern regarding the shortcomings in the federal enforcement of disability civil rights laws. One of those civil rights laws involves public special education.

In 1975, when Congress enacted the Education for All Handicapped Children Act, P.L. 94-142--now known as the Individuals with Disabilities Education Act IDEA--it found that the special education needs of more than eight million students with disabilities were not being met. Some students were entirely excluded from school; others were not receiving an appropriate education; still others had unidentified disabilities or were misclassified. Of those who did receive educational services, many were educated far away from their local schools (20 U.S.C. Sec. 1400(b)(1)-(6)). Still, Congress recognized that educators had the ability to instruct these students (20 U.S.C. Sec. 1400(b)(7)).

In that vein, Congress crafted a statute in 1975 that, if faithfully implemented, is designed to consistently produce quality outcomes for students with disabilities. The United States Code defines special education as "specially designed instruction" to meet the "unique needs" of these students; each student's individualized education program (IEP) is to set forth his or her unique needs and individually designed instruction; and, each student's placement is to be based on the IEP and no more restrictive than necessary (20 U.S.C. 1402(25); 34 C.F.R. 3000.552(a)(2)(b)). If IEPs are based on the unique needs of students, if instruction is individually designed, if IEPs are faithfully implemented, and if the LRE requirements are followed, students will achieve quality outcomes while enjoying maximum interactions with their nondisabled peers. Compliance with, and enforcement of, these IDEA requirements is a sufficient condition for quality outcomes.

In fact, in the more than two decades since its enactment, IDEA implementation has produced important improvements in the quality and effectiveness of the public education received by millions of American children with disabilities. Today almost 6 million children and young people with disabilities ages 3 through 21 qualify for educational interventions under Part B of IDEA. Some of these students with disabilities are being educated in their neighborhood schools in regular classrooms. These children have a right to have support services and devices such as assistive listening systems, braille text books, paraprofessional supports, curricular modifications, talking computers, and speech synthesizers made available to them as needed to facilitate their learning side-by-side with their nondisabled peers. Post-secondary and employment opportunities are opening up for increasing numbers of young adults with disabilities as they leave high school. Post-school employment rates for youth served under Part B are twice that of older adults with disabilities who did not benefit from IDEA in school, and self-reports indicate that the percentage of college freshmen with a disability has almost tripled since 1978.

During the course of five studies on the IDEA, from 1989 to 2000, NCD consistently learned that parents of children with disabilities are enthusiastic supporters of the law. They think it's a good law.

As part of its advisory work during the 2002 calendar year, NCD is interested in securing input from people in preparation for the reauthorization of the Individuals with Disabilities Education Act. NCD is using a variety of mechanisms to secure this input: (a) through testimony at quarterly Board meetings; (b) via the internet and NCD's web site; and (c) as a result of teleconferences, to name just a few ways.

This working paper is designed to frame some of the major policy issues that are likely to be addressed during IDEA Reauthorization activities this year. It is intended to be used to outline these issues, and provide a set of questions which NCD is most interested in receiving responses to at this point in time.

Introduction

IDEA is the most far-reaching aspect of the federal involvement in public education. Rich or poor, urban, suburban, or rural, all schools and districts are affected by special education. IDEA is scheduled to be reauthorized by the US Congress in 2002. The IDEA statute is made up of four parts, including the Part A General Provisions section, the Part B Grants to States Program (including preschool grants), the Part C Infants and Toddlers program, and the Part D Support Programs. Part B is permanently authorized. Congress must periodically review and reauthorize Parts C and D of IDEA (usually every 5 years) in order to ensure continuation of the activities included under these parts.

Nevertheless, judging from the level and intensity of IDEA-related activity in the 107th Congress during the debates on H.R. 1, the No Child Left Behind Act (reauthorization of the Elementary and Secondary Education Act), it is clear that two IDEA amendments (i.e., full funding and discipline of students with disabilities) which occupied a great deal of attention during ESEA debates, but ultimately failed to make it out of a Congressional joint conference, will make their way into the 2002 IDEA reauthorization schedule.

Some of the key policy issues and provisions of the law that are likely to be taken up during IDEA reauthorization during 2002 include: monitoring and enforcement; full funding; discipline; and, eligibility and over-representation of students from culturally diverse backgrounds. The following pages provide an outline to the selected issues.

Monitoring and Enforcement

In January 2000, NCD released its evaluation of nearly two and a half decades of federal enforcement of IDEA. Entitled Back to School on Civil Rights this report analyzed the data contained in the Department of Education's state monitoring reports from 1975 to 1998 to determine what has been happening over time. The study measured adherence to, or compliance with, IDEA requirements in the areas of free appropriate public education (FAPE), least restrictive environment (LRE), individualized education plans (IEP), transition services, general supervision, procedural safeguards and protection in evaluation of students with disabilities. The findings of that study indicate that every state and the District of Columbia were found to be out of compliance with IDEA requirements to some degree. This study confirmed what children with disabilities have repeatedly told NCD, namely, that too many students: did not receive FAPE, were not educated in the LRE, had not been able to access critical transition services, did not receive the benefits of procedural safeguards and protections in evaluation in some states over many years, placing enormous burdens on children and families.

NCD's findings of 25 years worth of chronic noncompliance translate into real and significant problems for eligible children and their families, including: lack of IEPs for students; non-provision of critical services and supports, such as psychological counseling for students with mental health needs; an absence of procedural safeguards for parents; a lack of any transition planning for students aging out of special education services systems; and, a lack of general supervision by SEAs of LEAs. These types of compliance problems cut to the core of what a special education entitlement is supposed to mean.

For example, students with disabilities must be provided with related services such as occupational therapy, speech therapy, physical therapy, and psychological counseling based on their individual needs as reflected in their IEPs. This requirement recognizes that without these related services, some students with disabilities cannot adequately access and learn their curricular materials.

On pages 93 to 94 of Back to School on Civil Rights NCD's January, 2000 education report, data indicates that:

"...OSEP found that 34 states (68%) had failed to ensure compliance with the related services requirements, as shown in the following examples:

In Florida, ....OSEP was informed in interviews with district and building-based administrators, teachers, and related services personnel in Agencies F, G, and H that psychological counseling, as a related service, is not available to students with disabilities, regardless of need. A building-based administrator in Agency E indicated that many students need psychological counseling but it is not available as a related service. ...OSEP was informed by two related service providers in Agency G that they were instructed not to list individual therapy on their caseload(s). They stated that they will provide the service informally, but it is not reflected on the student's IEP (there are no goals and objectives)....A special education teacher in Agency H told OSEP that students may have to go to a center-based or day program if they need more intense counseling services.

In one agency in Minnesota, OSEP found that psychological counseling was not considered for inclusion in any student's IEP.

An administrator from an agency in Arizona confirmed "that related services (speech therapy, occupational therapy, and physical therapy) are not based on the individual student's needs but are based upon the availability of the service provider.

Administrators and teachers from two agencies in Oklahoma stated that psychological counseling services are not provided based on an IEP, even if a child needs such services to benefit from special education.

In one district in California, an administrator told OSEP that there were 42 students whose IEPs called for speech services, but who were not receiving the services; in another district, an administrator reported that students whose IEP teams believed they needed mental health services to benefit from special education were referred to outside agencies for the services, rather than receiving the services free of charge through their IEPs."

These are only very recent examples of what has been a long-standing problem (i.e., the lack or absence of provision of related services and supports) in the successful implementation of IDEA for some of the nation's most vulnerable students with disabilities. When a student does not have an IEP or receive the support services he or she is deemed eligible for, he or she cannot achieve educational outcomes Those children are destined to be left behind.

NCD needs to hear from stakeholders in response to the following questions:

1. To what extent do existing federal monitoring and enforcement activities support efforts to provide effective special education and related services to improve results for children and youth with disabilities?
   
   
2. To what extent do existing federal monitoring and enforcement activities inhibit efforts to provide effective special education and related services to improve results for children and youth with disabilities
   
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3. What, if anything, should be changed to improve federal IDEA monitoring and enforcement of SEAs and LEAs? What would that/those changes look like?
   
   
4. To what extent does local capacity building need to occur for effective monitoring and enforcement of IDEA to be assured? How is local capacity building designed, implemented, and achieved?

Funding

In 1975, when Congress originally enacted the federal special education law, it authorized the federal government to pay 40% of each state's "excess cost" of educating children with disabilities. That amount - often called "IDEA full funding" - is computed by taking 40% of the national average per pupil expenditure (APPE) multiplied by the number of children with disabilities served under IDEA in each state. Federal funding for Part B has significantly increased over the last several years. Initially, the federal share was about 7%; the federal share is currently at 15%, which is the highest federal contribution to date.

IDEA authorizes a Part B grants-to-states program (accounting for most IDEA funding), state preschool grants, and state grants for infants and families together with various national programs (e.g., funds for research and improvement). Total funding in FY2001 ($7.4 billion) increased by 40% over FY1999 and by nearly 25% over FY2000. Virtually all of these increases went for grants to states under Part B of IDEA. An ongoing controversy surrounding IDEA funding concerns whether the federal government is living up to its "promise to fully fund" IDEA.

The Part C Infants and Toddlers Program and the Preschool Program under IDEA are critical components of state's efforts to assist young children with special needs in developing to their potential. The importance of the early years in ensuring that children succeed later in school and life has achieved bipartisan recognition in the U.S. Congress and the Administration (See, for example, Congressional Record on No Child Left Behind Act).

Appropriations for the Part B Preschool Grants (for children with disabilities ages 3 through 5, inclusive) and the Part C Infants and Toddlers Program (ages birth through 2 years of age, inclusive) have received virtually no increase over the past several years and have not kept pace with inflation.

The IDEA Part D Support Programs provide the critical infrastructure necessary to drive improvements in all aspects of special education practice. The support programs provide critical funds for professional development, technical assistance, and dissemination of knowledge about promising practices, to improve results for children with disabilities. Funds for these vital programs have remained stagnant for a number of years.

An estimated $16.9 billion would be required to provide states the maximum allotment allowed per student served, about 2.7 times more than the appropriation of $6.3 billion for FY2001. Others argue that the 40% figure is an upward limit of funding and as such is a target or goal for federal funding meant to assist states and local school districts to meet their obligation to serve students with disabilities, not an obligation or an unfulfilled promise.

NCD needs to learn from the community:

1. What, if any, changes should be considered in federal special education funding formulas?
   
   
2. Is the current distribution of the total Part D appropriation appropriate?
   
   
3. Should any new federal funding be linked to particular student outcomes? If so, what should those outcomes be and how would this work?
   
   
4. Should any new funding be linked to state/local school districts' compliance with, and enforcement of, IDEA statutory requirements? If so, how would this work?
   
   
5. Should funds be used for prevention strategies to reduce the number of referrals to special education? If so, how might this work?

Eligibility and Over-representation of Students From Linguistically and Culturally Diverse Backgrounds

In its 1993 report entitled Educating Students with Disabilities: Progress and Prospects NCD addressed the issue of over-representation of students from diverse backgrounds. At that time, NCD noted that some school districts had difficulty delivering appropriate services to their increasingly diverse student populations.

"School enrollment trends suggest that some school districts are having difficulty delivering appropriate services to their increasingly diverse student populations. In some states, the percentage of students enrolled in special education has increased while the general school population has declined. For instance, a 1991 report issued by the Massachusetts Department of Education, A Review of the Eligibility Criteria for Children with Special Needs, noted that 17% of students ages 3 to 21 were taught in special education classes during the 1990-1991 school year. The report acknowledged that "over referrals" to special education are a direct result of imprecise eligibility definitions, nonexistent or ineffective prereferral processes, and untrained or undertrained school personnel."

In addition, NCD noted that:

"Disproportionate overrepresentation and underrepresentation of culturally and racially diverse student groups in special education programs may be caused by inaccurate perceptions of students' competencies and behaviors. The results of such a set of circumstances could be devastating to those children and youth who are inappropriately placed.... a survey of 51 urban school districts in 25 states reported percentage enrollment patterns for students in the special and general education populations (National School Board Association, 1990)... disproportionate special education enrollment patterns exist for certain racial groups. These kinds of enrollment, ability-grouping, and/or academic tracking patterns, and the apparent lack of Americans. Once again, it seems that there may be a relationship between school systems' implementation of least restrictive environment mandates--reflected in Table 3--and the disproportionate placement patterns represented in Figures 6A, 6B, and 7. Such a relationship is also suggested by findings from other federal education research studies. For example, a 1987 study of high school juniors reported that among special education students 66 percent were Caucasian, 25 percent were African American, and 8 percent were Hispanic American, while comparable figures among non-special education students were 72 percent Caucasian, 15 percent African American, and 8.5 percent Hispanic American."

In the most recent IDEA reauthorization in 1997, the U.S. Congress called for greater efforts to ensure that children from culturally and linguistically diverse backgrounds are classified accurately and appropriately placed.

Based on its own research for Back to School on Civil Rights (2000), the National Council on Disability reported that:

"In addition to the testimony of parents, special education advocates attest that inappropriate placement in separate settings and a lack of services for children with disabilities served in regular classrooms persist in many areas. Testimony of parents at public hearings, consultation with special education advocates serving rural, Native American, and other minority communities around the country, as well as studies by various government and advocacy organizations indicate that minority students are disproportionately represented in separate educational settings.[fn. 82]

"...there is a very big need on our reservation to have monitoring of our school districts. We've made it very clear to them that we have a need, that there are problems in our education system, and our children are not getting IDEA implemented there. And we're told by our district people that 'yes, we agree there is a problem.' Well, where do we go after we get the acknowledgment and there's nothing done about it?" - a Native American parent from Montana[fn 83]

Other studies find that minority children are over-represented in institutions such as detention and correctional facilities where access to appropriate educational services is inadequate to nonexistent. That is especially problematic considering that 40 percent of youth held in detention are estimated to have some form of learning disability.[fn 84]"

In October 2001, the House Committee on Education and the Workforce conducted a hearing on Over identification Issues Within the Individuals with Disabilities Education Act and the Need for Reform. According to the Chair of that Committee "It has become increasingly evident that the IDEA system allows far too many students to be wrongly or mistakenly classified as in need of special education services. As we will learn shortly, this problem strikes particularly hard at minority students. The issue of over identification has prompted great concern in Congress. It is the issue that led our colleague...to request this hearing last spring. Whether the subject is the Elementary and Secondary Education Act or IDEA, improving our nation's education system starts with believing that every single American child can learn. To presume that any student is incapable of achieving academic success simply on the basis of race, ethnicity, or special needs is inconsistent with the principles upon which our nation is built."

According to U.S. Department of Education Secretary Paige who testified during this October 2001 hearing, "Our third concern is that when you look at State data, you find that the proportion of minority students identified in some disability categories is dramatically greater than their share of the overall population. More specifically, African-American students are labeled as mentally retarded and emotionally disturbed far out of proportion to their share of the student population. Department of Education national data show that 2.2% of all black students, but only 0.8% of all white students, are identified as mentally retarded. Similarly, 1.3% of all black students, and only 0.7% of all whites are identified as emotionally disturbed...This problem of disproportional identification of some minority groups in some categories of special education occurs in many other States. For minority students, misclassification or inappropriate placement in special education programs can have significant adverse consequences, particularly when these students are being removed from regular education settings and denied access to the core curriculum. Of particular concern is that, often, the more separate a program is from the general education setting, the more limited the curriculum and the greater the consequences to the student, particularly in terms of access to postsecondary education and employment opportunities. The stigma of being misclassified as mentally retarded or seriously emotionally disturbed, or as having a behavioral disorder, may also have serious consequences in terms of the student's self-perception and the perception of others, including family, peers, teachers, and future employers." It is useful to note that the most recent 2001 report of the National Academy of Sciences (NAS) entitled, Minority Students in Special and Gifted Education, echoes these themes and findings.

NCD needs input from the community in response to the following questions:

1. What policies, procedures, and/or practices can be established related to prevention or early intervention that can contribute to the elimination of the problem of over-representation?
   
   
2. What strategies and/or policies should school districts create or adopt related to culturally and linguistically sensitive and appropriate family centered services?
   
   
3. What strategies and/or policies should state systems of higher education implement to prepare, recruit, and retain qualified professionals from culturally and linguistically diverse groups?
   
   
4. What strategies and/or policies should state and local school districts adhere to to ensure that students with disabilities from diverse backgrounds are included and accommodated in new statewide and district-wide assessments of student performance?
   
   
5. How can we preserve the protections afforded students and parents under federal and state special education regulations and correct the problems of unnecessary over-referral of students from diverse cultural and linguistic backgrounds for special education?
   
   
6. Are there additional policy or implementation barriers that should be considered in order to eliminate problems related to over-representation?

Discipline

In 1997, Congress made significant changes to IDEA and attempted to strike "a careful balance between the LEA's [local educational agency] duty to ensure that school environments are safe and conducive to learning for all children, including students with disabilities, and the LEA's continuing obligation to ensure that children with disabilities receive a free appropriate public education." This current law does not immunize a student with a disability from disciplinary procedures but these procedures may not be identical to those for children without disabilities.

In brief, if a student with a disability commits an action that would be subject to discipline, school personnel have the following options: (a) suspending the student for up to 10 days with no educational services provided; (b) conducting a manifestation determination review to determine whether there is a link between the student's disability and the misbehavior. If the student's behavior is not a manifestation of a disability, long term disciplinary action such as expulsion may occur, except that educational services may not cease. If the student's behavior is a manifestation of the student's disability, the school may review the student's placement and, if appropriate, initiate a change in placement; placing the student in an interim alternative education setting for up to 45 days (which can be renewed) for situations involving weapons or drugs; and (c ) asking a hearing officer to order a student be placed in an interim alternative educational setting for up to 45 days (which can be renewed) if it is demonstrated that the student is substantially likely to injure himself or others in his current placement. School officials may also seek a Honig injunction as discussed previously if they are unable to reach agreement with a student's parents and they feel that the new statutory provisions are not sufficient.

On January 25, 2001 the General Accounting Office (GAO) submitted a report entitled Student Discipline: Individuals with Disabilities Education Act to the House and Senate Committees on Appropriations. Following the 1997 Amendments to the Individuals with Disabilities Education Act (IDEA), there was a perception of a double standard for student discipline for students with disabilities. As a result, Congress directed the GAO to conduct a study to determine how the IDEA Amendments of 1997 affect the ability of schools to maintain a safe environment conducive to learning. Some of the results of the GAO study, which primarily involved a survey of principals of 272 middle and high schools from around the country, indicate, for example, that (a) students with disabilities are receiving the same punishments as their general education peers for violent acts they commit in school, contrary to what some lawmakers stated in legislation last year; (b) the same proportion of each group of students who commit violence, about one in six, is expelled from school or placed in an alternative educational setting as a consequence of their actions; (c) 74 percent of responding principals generally regarded their overall special education discipline policy, which is essentially a combination of IDEA and local policies, as having a positive or neutral effect on their schools' levels of safety and orderliness; and (d) the remaining 26 percent of responding principals rated the policies as having a negative effect.

During the 2001 calendar year, two "discipline" amendments relating to children with disabilities were offered and accepted during Congressional debates on H.R.1 (107th Congress), the No Child Left Behind Act. Both amendments would have altered the scope of protection and procedural safeguards for certain IDEA eligible students. These two amendments did not survive the joint House-Senate Conference on H.R.1 but are sure to make their way into IDEA Reauthorization debates.

NCD needs to hear from the community:

1. Are the discipline procedures under IDEA clear and understandable?
   
   
2. To what extent is the current IDEA discipline policy properly implemented?
   
   
3. What are challenges and obstacles to implementing the IDEA discipline policy?
   
   
4. To what extent are resources available to school districts, educational personnel, and parents to ensure implementation of the IDEA discipline policy?
   
   
5. Should changes be considered to the current IDEA discipline policy?
   
   
6. To what extent are state and local school districts not complying with the current IDEA discipline policy? How can this policy be enforced?

Conclusions

One of the nation's best tools in promoting education equity and excellence is a public education system that is focused directly on accountability, achievement, and enforcement. To deal with the existing realities when it comes to federal education policymaking, during IDEA reauthorization, NCD will use a variety of forums and mechanisms to solicit stakeholders' input to advise the Administration and Congress regarding a range of critical policy issues. These policy issues and suggested policy options for reauthorization go to the heart of education reform for over 6 million students with disabilities and involve: (a) accountability in federal education spending, (b) achievement and progress in the K-12 arena, and (c) fidelity of implementation in all aspects of the IDEA entitlement program.