IDEA Hearing Questions and NCD Responses, February 28, 2001

COMMITTEE ON GOVERNMENT REFORM
IDEA HEARING QUESTIONS AND NCD RESPONSES
February 28, 2001

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:

"...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."

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:

Every state was out of compliance with IDEA requirements to some degree; in the sampling of states studied, noncompliance persisted over many years.

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.

In California, a first-grade student with significant mental impairments was placed in the regular classroom for the full day. The school district thought that the placement was wrong for the student and claimed that she was not receiving academic benefit from her placement. In addition, the district held that the girl's presence had a detrimental effect on her teacher and classmates. A hearing officer determined that the regular classroom was indeed the correct placement for the girl and outlined appropriate supports that had to be provided. The school district appealed the decision. Eventually the girl's family moved to a neighboring district and enrolled the child in a regular education class there, where she is doing well.

In another situation, in Indiana, a student who is blind sought to attend his local school. The school district required the child to travel 25 miles away from home to a residential school for the blind to receive the educational services he needed. A hearing officer determined that the child must be served in his home school, which is the least restrictive environment. The school district has appealed the ruling.

In New Jersey, a very bright elementary-age child with dyslexia was in a resource room several periods a day. In more than two years she had not shown progress in reading. Her parents sought training for the teachers on how to best instruct children with dyslexia in reading. The school system responded by seeking to place the child in a self-contained classroom. The school contended that it teaches all children to read by the same method. The parents prevailed in court and were awarded instructional compensation for the child over the summer.

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:

We serve students from the age of three up through grade five. Our school reflects the ethnic and linguistic diversity of Boston and we also have diversity in terms of ability. Approximately 25% of our students are considered to have moderate to severe disabilities.

Most of our students have done very well in terms of looking at indicators of whether they have obtained the goals listed in their IEPs, whether we are talking about standardized test scores or looking at students' portfolios.

Before O'Hearn became a full inclusion school in September of 1989, we had vacancies at every grade level. Now going into the school year, we are fully enrolled at every grade level and some of our waiting lists are five times our capacity. We are clearly one of the most popular schools in Boston, one of the schools with the lowest transfer rates.

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:

The Peter A. Reinberg School has 727 students. Of these students, 290 have some special needs.... Almost every level you can imagine as labeled, we serve. Our class size in Chicago is 28 in the primary grades and 32 in the upper grades.... I can't change those numbers. So when we looked at our large number of special education children and our large number of children that we would call the typical program, we knew that something had to give. What we came up with is to teach cooperatively. We use the class size that's mandated by our contract. We use the demands that we have upon us to make our situation work, and I feel it works very successfully.... Children are totally included from kindergarten on up.

Many of our teachers will tell you stories where children who have a disability would help someone else. We also have a very large Polish bilingual population. We have one girl specifically who is Polish bilingual and deaf. She would automatically translate for a new Polish immigrant the teacher's lesson for another child next to her into Polish. So it became a matter of one child helping another.... We started realizing that we were the ones arbitrarily stopping these children from dealing with each other.

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.

Schools still use inappropriate curricula.
The talents of many teachers and related service providers are misused.
Service and support systems are unavailable or ineffective.
Services, even within schools, are poorly coordinated.
Schools are generally not creative in identifying appropriate interventions or supportive services that might be employed when students are having difficulty in less restrictive placements.
Professionals do not know enough about other services available in their communities, particularly those services that could make students' education and transition more appropriate and beneficial.
Schools turn too often to "educational faddism" and are driven too frequently by political rather than sound pedagogical motives.
School systems often lack instructional leadership by highly competent, well- trained administrators, master teachers, and support personnel.
Students continue to be disempowered by teacher-directed, deficit-based teaching methodologies.
Curricula often rely too much on specific--and outmoded--models for educating certain categories of students.
Teachers often do not know how to work with parents or with each other in order to combine their strengths and resources.
Competent teachers are in short supply, especially for students with specific types of disabilities.
General educators often do not feel responsible for educating students with disabilities. The bottom line is that teachers need a great deal more preservice and in-service training to deal with the unique and ever changing instructional challenges presented to them in the 21st Century.

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:

"Through the North Carolina Governor's Advisory Council for Persons with Disabilities, OSEP learned that some public agencies in the State incorrectly understood that they had no obligation to continue the provision of services to a student with a disability who has been suspended long-term or expelled for misconduct not related to a student's disability. In a January 6, 1995 letter, OSEP informed NCDPI that it is the Department's policy that, under the FAPE requirements of Part B, at 20 U.S.C. §1412(1)-(2), all States receiving funds under Part B must continue to provide educational services to students with disabilities during periods of long-term suspension or expulsion from school for misconduct that is determined to be unrelated to their disability. In an April 20, 1995 letter, NCDPI informed OSEP that the State Board of Education had approved an amendment to its 1996-98 State plan that would, as of July 1, 1995, revise Section .1523 Disciplinary Procedures of Procedures Governing Programs and Services for Children with Special Needs to conform to the requirements of Part B. It also stated that a memorandum of notification of the Board's action would be sent to all local superintendents within a month.

Special education directors from public agencies A, C and H, informed OSEP that they did not ensure that services continued to be provided to students with disabilities during periods of long-term suspension or expulsion from school. At public agency H, parents are notified that if they want their child to receive services during a long-term suspension, they should contact the school system. Otherwise, no services are provided. At public agencies A and C, the special education directors said that they would be changing their policies, effective for the next school year, but that the current policy was to suspend without services when a determination was reached that there was no relationship between the misconduct and the disability. NCDPI has no method of monitoring to ensure that students who are properly suspended long-term or expelled, continue to receive FAPE."

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:

The Departments of Education and Justice develop national compliance standards, improvement measures, and enforcement action triggers, with input from stakeholders including students with disabilities and parents, for consistency and clarity in the IDEA enforcement process.
Congress authorize more funding for Department of Education-sponsored technical assistance programs to support the development of state-level technical assistance networks, self-advocacy and monitoring training for students and parents, as well as free and low-cost legal services for families.
Congress authorize and fund the Department of Justice to independently investigate and litigate IDEA cases, as well as administer a federal system for handling pattern and practice complaints filed by individuals.
Congress and the President appropriate the necessary funds for enforcement and technical assistance.
The Office of Special Education and Rehabilitative Services in the Department of Education should continue to expand its initiatives to serve non-English speaking groups and/or people with limited English proficiency and create culturally appropriate training materials; and
The Department of Education should consult with students with disabilities, their parents and other stakeholders as it develops and implements a range of enforcement sanctions that will be triggered by specific indicators and measures indicating a state's failure to ensure compliance with Part B.

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.