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TESTIMONY OF MARCA BRISTO Good afternoon. Chairman Burton, Congressman Waxman and distinguished members of the committee, thank you very much for inviting me to participate in this hearing. I am Marca Bristo, the Chairperson of the National Council on Disability (NCD). As you know, NCD is charged by Congress with monitoring federal statutes and programs pertaining to people with disabilities, and assessing their effectiveness in meeting their needs. On behalf of the Council, we appreciate the opportunity to share with Congress our findings on one of the most important pieces of civil rights legislation in history, the Individuals with Disabilities Education Act (IDEA). We are pleased to note that President George W. Bush has recognized the importance of the role that a strong and effective IDEA plays in ensuring that no child gets left behind: the President has provided his immediate and firm support of the IDEA in his New Freedom Initiative and other education proposals. NCD is an independent federal agency representing all people with disabilities, regardless of severity, and from all cultural, racial and ethnic backgrounds. Our Council members, who are appointed by the President of the United States and confirmed by the U.S. Senate, make 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. In 1975, when Congress enacted the Education for All Handicapped Children Act, P.L. 94-142--now titled Part B of 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 have had the ability to instruct these students (20 U.S.C. Sec. 1400(b)(7)). IDEA is now the most significant aspect of the federal involvement in public education for children and youth with disabilities. Rich or poor, urban, suburban, or rural, all schools and districts are affected by special education. IDEA's basic premise is that all children with disabilities have a federally-protected civil right to have available to them a free appropriate public education that meets their schooling and related service needs in the least restrictive environment, in regular classes, in the school the student will attend if not disabled. It is a law designed to work for every eligible student. 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 six 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 several research studies on the IDEA, NCD learned that parents of children with disabilities are enthusiastic supporters of the law. They think it is a good law. Having said this, NCD's assessment studies found that despite these important improvements, the dropout rate for students who receive special education continues to be far higher than that of students who receive general education services. Diploma rates for special education students are far lower than for their peers enrolled in general education services. Unemployment among those with disabilities who want to work, but can't find a job, is approximately 70 percent. Countless numbers of children with disabilities, especially those from low-income, ethnic and racial minority, or rural communities, are still not receiving the full benefit of the law. They and their families struggle daily to obtain the services and supports they need to learn. As a last resort, many families find they must take legal action to force local school districts to comply with the law. 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 compliance 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. It saddens us to report that every state and the District of Columbia was found to be out of compliance with IDEA requirements to some degree. Federal efforts over several administrations to enforce IDEA in states where noncompliance persists were found to be inconsistent, often ineffective and without any real teeth. I want to stress that while the statutory framework of IDEA envisioned states as the primary implementers of IDEA, over five administrations, the Federal Government has fallen short in its efforts to ensure the protections of the law for children with disabilities are enforced. This study confirmed what children with disabilities have repeatedly told NCD, that noncompliance has persisted in some states over many years, placing enormous burdens on children and families. DATA AND SUMMARY ANALYSIS NCD's Back to School report found that the most recent federal monitoring reports demonstrated that every state failed to ensure compliance with the requirements of IDEA to some extent during the period covered by this review. More than half of the states failed to ensure compliance in five of the seven main compliance areas. For example, in OSEP's most recent monitoring reports, 90 percent of the states (n = 45) had failed to ensure compliance in the category of general supervision (the state mechanism for ensuring that LEAs are carrying out their responsibilities to ensure compliance with the law); 88 percent of the states (n = 44) had failed to ensure compliance with the law's secondary transition services provisions, which require schools to promote the appropriate transition of students with disabilities to work or post-secondary education; 80 percent of the states (n = 40) failed to ensure compliance with the law's free appropriate public education requirements; 78 percent of the states (n = 39) failed to ensure compliance with the procedural safeguards provisions of the law; and 72 percent of the states (n = 36) failed to ensure compliance with the placement in the least restrictive environment requirements of IDEA. In the two remaining major compliance areas IEPs and protection in evaluation, 44 percent of the states (n = 22) failed to ensure compliance with the former and 38 percent of the states (n = 19) failed to ensure compliance with the latter. Currently, the U.S. Department of Education (DoED) has neither the authority nor the resources to investigate and resolve individual complaints alleging noncompliance. The Department does consult with and share enforcement authority with the U.S. Department of Justice (DOJ). DOJ has no independent litigation authority. We found that, between the date it was given explicit referral authority in 1997 and the date this report was published, DoED had not sent a single case to DOJ for "substantial noncompliance," and had articulated no objective criteria for defining that important term. In turn, the Department of Justice, whose role has been largely limited to participation as an amicus in IDEA litigation, does not appear to have a process for determining which cases to litigate. Despite the high rate of failure to ensure compliance with Part B requirements indicated in the monitoring reports for all states, only one enforcement action involving a sanction (withholding) and five others involving imposition of "high risk" status and corrective action as a prerequisite to receiving further funds, have been taken. The only withholding action occurred once for a temporary period and was overruled by a federal court. Overall, the DoED tends to emphasize collaboration with the states through technical assistance and developing corrective action plans or compliance agreements for addressing compliance problems. There appear to be no clear-cut, objective criteria for determining which enforcement options should be applied when technical assistance and compliance agreements do not work and when to enforce in situations of substantial and persistent noncompliance. We worked with the Department of Education for five months to obtain their feedback to the report. We consulted with advocates from across the country on our recommendations. As a result, NCD believes that the Back to School on Civil Rights report paints a realistic picture of federal enforcement from 1975 until 1998, when a new system began to be implemented. RECOMMENDATIONS FOR STRENGTHENING THE IDEA In the report, NCD makes the following general recommendations to strengthen the IDEA and relevant Executive level programs:
ADDITIONAL CONSIDERATIONS Beyond the scope of our Back to School assessment study, please note that NCD would like to provide you with feedback about IDEA implementation related to: transition of secondary-aged youth; teacher training and preparation; and, issues involving vouchers, regulatory flexibility, and large-scale school reform. NCD recently completed a report entitled Transition and Post-School Outcomes for Youth with Disabilities: Closing the Gaps to Post-Secondary Education and Employment. The report was commissioned by and for the Social Security Administration. This report presents an analysis of research on the status of transition, post-secondary education, and employment outcomes for primarily 14 to 22 year old youth and young adults with disabilities over the past 25 years. Next it identifies what has worked, and what should work in light of unmet needs and unserved populations. Despite advances in education, disability rights policy, the support of federal mandates, and increased funding of programs and initiatives that impact all youth, the post-school outcomes for far too many of our nation's youth and young adults are still poor. The current status translates not only into untapped talent and potential and unfulfilled dreams, but severely limits America's preparation of today's youth for full participation in tomorrow's society. This report brings attention to persistent issues and problems that various national studies on post-school outcomes document. The problems identified in this report are: (a) poor graduation rates from high school; (b) low employment rates after high school; (c) low post-secondary education participation; and (d) an increasing number of youth receiving Social Security benefits and not leaving the benefits rolls. The outcomes reported through statistics resonate to 30 years ago, prior to the benefit of federal laws and regulations. Teachers are still not receiving adequate training in special education issues. States need to increase the mandated level of college-level teacher training 'special education' coursework beyond the all too general 'Introduction to Special Education' undergraduate-level course for all teacher preparation programs. Special and general education practices reflect teacher preparation, just as teacher preparation drives school practices. This symbiotic relationship between practice and preparation means that the implementation of promising practices is quite uneven on a national basis. While many students preparing to be teachers benefit from experience with state-of-the-art practices in their education, far too many still do not have access to the quality of practices and preparatory experiences that should have been created by now. Therefore, outmoded and ineffective practices are reinforced and perpetuated. NCD also has deep concerns regarding proposals pertaining to (1) private school voucher plans and/or charter school options; and (2) increased flexibility for states in relation to federal IDEA requirements. Such proposals have the potential of seriously undermining the education and civil rights of children with disabilities if they are unable to gain the provision of IDEA services and supports to which they are entitled by federal law. Information from around the country (e.g., Massachusetts) indicates that charter schools too often provide unlimited freedom from critical special education requirements. Questions about the constitutionality and effectiveness of vouchers for student with disabilities are also beginning to surface around the country (e.g., Florida). Any educational "reforms" or "innovations" that involve IDEA must first safeguard against exclusion of students with disabilities from services and/or supports, abridgements of student and family rights and responsibilities under IDEA, and ensure that their educational needs are timely met. Until these standards or guidelines are met, state and/or local school districts should only be allowed to have 'flexibility' with non-federal education funds, regardless of which type of reform or innovation they want to try. It is imperative that NCD, children and youth with disabilities, their families, their advocates all be afforded an opportunity to provide their input as proposals are developed and raised to Congress' attention. CONCLUSIONS--FINAL REMARKS Congress crafted a statute in 1975 that, if faithfully implemented, will consistently produce quality outcomes for students with disabilities. The U. S. 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 these IDEA requirements is a sufficient condition for quality outcomes. Improvements in implementation of IDEA won't happen overnight. It will take the concerted efforts of parents, advocates, states and local school districts, and leaders such as those conducting this Congressional hearing to make it happen. Increasing the federal share of IDEA dollars is one small step, but it is not nearly enough and it should not be initiated in the absence of other federal activity. We have outlined those activities in the form of about one-half dozen recommendations to this Committee. As the representative of NCD at this hearing, I want to express our deep appreciation of the important work accomplished by your members. Without knowledgeable and committed professionals working for children with disabilities, they would have no real educational opportunity and the doors of their future would remain closed. Together, we can work to pry these doors open for all such children. As we begin our shared work with the first administration of the 21st century, the Federal Government is poised to address long-standing challenges to its performance and service to Americans with disabilities. In his New Freedom Initiative, President George W. Bush gave his commitment that his administration would work with this Congress to expand educational opportunities for Americans with disabilities, to invest in programs that would promote their reading and learning skills. I am pleased to inform you that NCD is presently working in collaboration with the Department of Education's Office of Special Education Programs (OSEP) and a group of stakeholders to review OSEP's IDEA compliance monitoring programs, and develop recommendations regarding performance benchmarks and enforcement triggers. It is our hope that this hearing will lead to dialogue, greater understanding of the issues and problems, and more importantly, to action. We ask you to join us in supporting the recommendations we offer today and to make the promises of IDEA a reality for all children with disabilities. Thank you. COMMITTEE ON GOVERNMENT REFORM The following are the National Council on Disability's (NCD) responses to the questions listed in Chairman Dan Burton's February 21, 2001 letter to NCD Chairperson Marca Bristo that describe the focus of the Committee on Government Reform's hearing on special education and the implementation of the Individuals with Disabilities Act (IDEA): 1. Are children with disabilities receiving the services they need? Before IDEA, millions of children and youth with disabilities were excluded from their public schools. 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 six million children and young people with disabilities ages 3 through 21 qualify for educational interventions under Part B of IDEA. There are untold numbers of students who attend school now than ever before; there are increases in students who graduate and go to college; there are increases in numbers of students who find jobs. During the course of several research studies on the IDEA, NCD learned that parents of children with disabilities are enthusiastic supporters of the law. They think it's a good law. Having said this, there is also overwhelming evidence that some students are not receiving the services they need. For example, from our "Back to School" report, the area of related services was identified as an area of concern. 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. However, data from pages 93-94 of NCD's January 2000 education report, "Back to School on Civil Rights," reveals that:
A review of recent OSEP monitoring reports to States indicates this continues to be an area of concern. 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. 2. Are schools following Federal laws and providing a free and appropriate education for children with disabilities? IDEA is a comprehensive scheme set up by Congress to aid states in complying with their constitutional obligations to provide public education for children with disabilities. Both the provisions of the statute and its legislative history indicate that Congress intended handicapped children with constitutional claims to a free appropriate public education to pursue those claims through the carefully tailored administrative and judicial mechanism set out in the statute. IDEA was an attempt to relieve the fiscal burden placed on states and localities by their responsibility to provide education for all handicapped children. At the same time, however, Congress made clear that IDEA is not simply a funding statute. The responsibility for providing the required education remains on the states. The Act establishes an enforceable substantive right to a free appropriate public education. Smith v. Robinson, 468 U.S. 992, 1009, 1010 (1984). As indicated in our "Back to School", NCD found that the most recent federal monitoring reports demonstrated that too many states failed to ensure compliance with the FAPE requirements of IDEA to some extent during the period covered by this review. Specifically, 80 percent of the states (n = 40) failed to ensure compliance with the law's free appropriate public education. Based on its review of the Department of Education's monitoring reports of states between 1994 and 1998, NCD found:
In addition, it is important to note that the statutory right articulated in IDEA is grounded in the Constitution's guarantee of equal protection under law and the constitutional power of Congress to authorize and place conditions on participation in federal spending programs. It is complemented by the federal civil rights protections contained in section 504 of the Rehabilitation Act of 1973, as amended, and Title II of the Americans with Disabilities Act (ADA). Issues of school accessibility are directly covered by ADA. While there is little specific, if any, national data about the accessibility of the nation's schools, a substantial amount of anecdotal information indicates that this is a major problem for too many of America's students with disabilities - as well as their family members. Similarly, ADA covers the accessibility of our nation's public schools' electronic and information technology (E & IT). This specifically would involve the e-rate program currently operated under the auspices of the FCC. We do have some quantitative and anecdotal evidence to indicate that accessibility to publicly funded E & IT does not comport with ADA and/or Section 504 requirements. 3. What types of problems are families, teachers, and administrators faced with in the "special education" system? Almost a quarter century following the passage of the IDEA, students with disabilities and their families still commonly face obstacles in securing the free appropriate public education (FAPE) that the law promises. The impact of noncompliance with IDEA is difficult to overestimate. Every Parent Training and Information (PTI) center in the country hears daily about the toll taken on students whose educational and related services needs are not being met and on the parents who expend incredible amounts of energy advocating for basic access to educational programs for their children. Appendix B of NCD's "Back to School" report provides a general list of the obstacles faced by students with disabilities and their families that were intended to be addressed by IDEA. Problems in all of these areas persist today. The experience of many parents gives the impression that compliance with the law is the exception rather than the rule. Parents frequently face repeated challenges year after year, sometimes throughout the entire elementary and secondary educational experience of the child. The stress of working with a recalcitrant school system that appears to not want to work with a parent to educate a disabled child can be tremendous. The recent controversy over the discipline provisions in IDEA has fueled special education cases related to suspension and expulsion of students. The following situations involving 'noncompliance with LRE' are examples of what many students and families in this country experience when working with special education systems. These experiences demonstrate that even the most basic promises of the law are too often not being met.
These situations, all related to the "least restrictive environment" mandate, persist case after case and year after year despite repeated rulings for integrated placements. In one of the best-known cases, Rachel Holland and her family spent five years fighting in court for her right to be educated in a regular classroom. The school district in California insisted that Rachel, then a seven-year-old girl with mental retardation, be educated in a separate special education classroom. Her parents held that she should be educated in a regular classroom with support. In 1992, the district court ordered an aide and special education consultant to work part-time with Rachel's teacher and held that she should be placed in a regular classroom. The school district appealed this decision all the way to the Supreme Court, which declined to hear the case, thus affirming the lower court's decision. Rachel and her parents were engaged in pursuing their child's right to an integrated education for more than five years. For two of those years, they were in a position of defending against appeals by the school system. During the pendency of the case, the Hollands placed Rachel in a regular private school, at their own expense, where she was in a regular classroom with supports. She continues to thrive today in a regular public education classroom. From hearings NCD held in Jackson, Mississippi, we heard from experts on minority and disability issues, including persons with disabilities, service providers, and researchers. NCD was told that learning must occur for students with disabilities in integrated, mainstreamed settings if they are to be able to compete on an equal basis. Too often, children who are considered at risk find themselves failing in schools that have the least resources, deteriorating physical plants, and dispirited and uninspired teachers. Many students are misplaced, written off, or "fall between the cracks." Participants informed us that several specific variables have a negative effect on student achievement, particularly among minority students. Among these are the following: the disproportionate placement of minorities in special education programs; the placement of minority students in special education programs for longer periods of time than nonminority students; environmental factors such as malnutrition, poverty, and parental addiction to alcohol and/or other drugs; and the general orientation of the schools toward students with behavioral problems, which does not adequately take into consideration the causes of the problem. There are also examples where problems are being managed successfully. Based on hearings that NCD conducted in Chicago, Illinois we learned that individual principals with a commitment to inclusion could lead staff to transform schools which previously segregated students with disabilities. Two such principals described the effect of inclusion in their elementary schools. Dr. William Henderson of the O'Hearn Elementary School in Boston shared the effects inclusion has had on his school's student population:
Inclusion has been advantageous for all of the children in the school and is recognized as such by the community of people who have chosen to send their children--with and without disabilities--to O'Hearn Elementary School. Another principal, Catherine Bushbacher, spoke of the strategies used at her Chicago elementary school to implement inclusion and the benefits students have received:
In both instances, these principals worked with their staff and communities to transform their schools. They moved from practices that segregated students with disabilities to greater levels of inclusion. There are many other such examples that are included in our reports over the years. 4. What are the legal costs in resolving disputes? Who pays the legal fees? We are not aware of any quantitative database that longitudinally tracks and reports the legal costs in resolving special education disputes at the national level. It is probably true that some States have undertaken such an effort, however, this is not a requirement or expectation of IDEA. We have learned, however, from our hearings, our research, and from our community contacts that parents and families pay the lion's share of costs of enforcement. So we do have quite a bit of anecdotal information about who pays the legal fees involved in resolving special education disputes. Enforcement of the law is too often the burden of parents who must invoke formal complaint procedures and request due process hearings to obtain the services and supports to which their children are entitled under law. Under IDEA, parents have a private right of action, or right to go to court, to enforce their children's rights under the statute. However, because of the individualized nature of the law and the requirement that parents exhaust administrative remedies before a court can review an alleged failure to provide FAPE, it is sometimes difficult to address systemic problems through individual litigation. Nevertheless, litigation brought by parents has become a critical enforcement mechanism through judicial interpretations of the law and in relief obtained through class actions to redress systemic problems. As detailed in Part V of NCD's "Back to School Report," recent cases in three states have directly challenged those states' monitoring deficiencies and other systemic problems. In short, in far too many states, parents are saddled with the legal costs of special education dispute resolution. 5. Are teachers receiving adequate training in special education issues? Teachers are still not receiving adequate training in special education issues. States need to increase the mandated level of college-level teacher training 'special education' coursework beyond the all too general 'Introduction to Special Education' undergraduate-level course for all teacher preparation programs. Special and general education practices reflect teacher preparation, just as teacher preparation drives school practices. This symbiotic relationship between practice and preparation means that the implementation of promising practices is quite uneven on a national basis. While many students preparing to be teachers benefit from experience with state-of-the-art practices in their education, far too many still do not have access to the quality of practices and preparatory experiences that should have been created by now. Therefore, outmoded and ineffective practices are reinforced and perpetuated. This results in the following real-life classroom problems.
6. Are special education funds making it to the classroom and being used to provide services to children? As we stated earlier in response to the question "Are children receiving the services they need?": "There is evidence that some students are and some student are not receiving the services they need. For example, from our "Back to School Report," the area of related services was identified as an area of concern. 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. As previously stated, data on pages 93-94 of "Back to School" report, reveals that: "...OSEP found that 34 states (68%) had failed to ensure compliance with the related services requirements." Regardless of whether school districts have received federal reimbursement for these IEP-driven related services or not, there is ample evidence that special education funding is not making it to the classroom for necessary services to children. Another area to draw examples from involves student suspensions and expulsions. OSEP's federal monitoring of States reflects that some States have not been responsible for ensuring that FAPE is available to all children with disabilities within the State, and must ensure that each student with a disability receives the related services that are required to assist the child to benefit from special education as required by §§300.300 and 300.16(a). For example, on page 24 of OSEP's North Carolina monitoring document, OSEP monitors report that:
7. What can the Federal Government do to improve local school jurisdictions' ability to provide services? Increasing the Federal share of IDEA dollars is one small step, but it is not nearly enough and it should not be initiated in the absence of other Federal activity. Specifically, NCD recommends that:
NCD activities around implementation of IDEA NCD is currently involved in several efforts related to the implementation of IDEA. First, NCD has recently completed a study commissioned by the Social Security Administration on the status of the implementation of the IDEA transition mandates, as well as post-secondary education, and employment outcomes for primarily 14 to 22 year old youth and young adults with disabilities over the past 25 years. This report identifies what has not worked, what has worked, and what should work in light of unmet needs and unserved populations. The report presents recommendations for national, state, and local community action. Second, NCD is presently working in collaboration with the Office of Special Education Programs (OSEP) and a group of stakeholders to review OSEP's Continuous Monitoring Improvement System, and develop recommendations regarding performance benchmarks and enforcement triggers. Third, NCD currently supports a Youth Advisory Committee (Advisory Committee) that was established as a non-paid advisory body to include youth and young adult perspectives in carrying out the mission of NCD. This is to ensure that NCD's activities and policy recommendations incorporate the needs of youth with disabilities, particularly as they relate to the implementation of critical civil rights legislation such as IDEA. Fourth, NCD provides supports to a number of Federal interagency committees that are involved with IDEA implementation such as: the Presidential Task Force on the Employment of Adults with Disabilities, and the Federal Interagency Subcommittee on Disability Statistics. Finally, NCD is also currently engaged in the development of a small-scale follow-along study based on the Back to School report. NCD staff will be working on this activity in the next fiscal year. HOME | FAQs | NEWSROOM | SITE MAP | FEDERAL AGENCIES | RESOURCES |
