Volume 1 (2003):
House Passes IDEA Reauthorization
The U.S. House of Representatives, by a vote of 251-171 on April 30, passed H.R. 1350, the Improving Education Results for Children with Disabilities Act. This bill was strongly opposed by virtually every national disability organization including UCP and The Arc and garnered, by far, the most votes in opposition to an IDEA bill in its nearly 30 year history. Approximately 16% of House Democrats voting joined almost 100% of House Republicans in support of the measure. H.R.1350 contains numerous onerous provisions that will strip students with disabilities and their parents of important rights. If enacted into law, this bill would be a victory for those school officials who seek broader authority to discipline, suspend and segregate students with disabilities who violate school rules. The negatives in the bill far outweigh the few positive changes to IDEA.
Discipline
H.R. 1350 radically reverses many of the carefully developed discipline provisions of the 1997 Amendments to IDEA (IDEA ’97). These provisions provide a balanced approach to the issue of discipline of children with disabilities that reflects the need for orderly and safe schools and the need to protect the right of children with disabilities to a free appropriate public education (FAPE). Evidence shows that the discipline provisions of IDEA ’97 not only allow school administrators the flexibility to maintain safe and orderly schools, but also protect students with disabilities. H.R. 1350 allows school personnel to unilaterally remove a child with a disability from his or her current placement for the violation of any school rule, while at the same time removing the protection of the manifestation determination to assess whether the behavior is related to the child’s disability. Furthermore, H.R. 1350 removes the requirements for functional behavioral assessment, development of behavior intervention plans and review of the appropriateness of the current individualized education program (IEP) and placement. The provisions of H.R. 1350 will potentially increase school dropout rates and delinquency by removing appropriate educational services for students whose school success depends upon these services. Eliminating the manifestation determination will likely lead to a substantial increase in litigation.
Due Process
H.R. 1350 contains several provisions that significantly weaken the ability of parents to get the educational services and supports they need for their children. For example, the bill encourages the use of voluntary binding arbitration. Voluntary binding arbitration and its corresponding limitations are inappropriate in situations where a child's needs change over time. Further legal disputes will arise about how long the arbitration is binding. The bargaining positions of the parties are too unequal to rely on binding arbitration when one party is an individual parent and the other is a school district.
H.R. 1350 creates a new maze of options and new burdens on parents that, singly or in combination, will severely chill the prospect of many families moving forward with due process. For example, the bill mandates a one-month waiting period before any parent complaint can go to due process regardless of the problem or issue. This provision will cause unnecessary delay. In addition, a new one-year statute of limitations could run out before parents will even discover certain types of violations, especially if their child is unable to report to them when services have not been provided. Moreover, the statute of limitations is inconsistent with child find and will deprive children whose needs are ignored for years with no possibility of remediation.
Another concern is that H.R. 1350 permits the Governor of each state to determine the amount of reasonable attorney fees to be reimbursed to the parents. No other civil rights law allows defendants or those acting in their place to set prevailing plaintiffs’ fees. Only parents who prevail in judicial proceedings collect attorneys’ fees. The provision in H.R. 1350 will make it even harder for parents to secure their child’s rights, and will curtail the number of parents who can access their child’s due process protections under IDEA. In addition, the bill does not give the Governor the authority to limit the fees that can be paid to school district attorneys. Only fees paid to parents are affected. The bill also includes a provision that requires parents to present their case in a mandatory resolution session without the reimbursement for attorney’s fees that is available for due process hearings. If the case proceeds to a due process hearing, the parents can only raise issues that were in the complaint or part of the resolution session. Most parents do not have the legal training that is required to foresee all the issues under IDEA that are available for them to raise at the resolution session. In each of these provisions, the bill places additional burdens on parents.
IEP
H.R. 1350 claims to reduce paperwork for teachers. It threatens annual Individualized Education Program (IEP) reviews due to the new three-year IEP option and eliminates the short-term objectives and benchmarks by 2005-2006 (except for those students taking alternative assessments). This change was made without any scientific research to document that these provisions will reduce paperwork. Many parents report that the short term objectives are the most important measure of progress for their children and the best way to keep schools accountable for progress toward their IEP goals. While this is an optional choice for students and parents, many could either be confused by it or feel coerced to accept this option.
Paperwork Reduction Pilots
H.R. 1350 contains a provision that allows the U.S. Dept. of Education to give approval to up to ten states to waive requirements under IDEA in order to remove paperwork burdens. These pilot projects have no limitations and could result in the loss of IEPs, due process, related services, and other vital protections under the law.
IDEA Funding
H.R. 1350 directs 15% of IDEA funds to finance pre-referral services, support services required by No Child Left Behind and other activities. In addition, 20% of increases in appropriations for the Part B State Grant Program may be used as local funds. Also, nothing in the bill precludes schools from keeping children in a pre-referral category indefinitely. While the activities authorized may have merit, concern remains about funding them with the insufficient supply of Part B funds that does not even sufficiently address the needs of students with disabilities who are currently served under the law. While the disability community supports collaboration and joint funding, in this instance, special education is being asked to finance more than its fair share.
The Education Task Force of the Consortium for Citizens with Disabilities has published a detailed analysis of the many serious concerns about H.R. 1350. The analysis is posted on UCP’s and The Arc’s Web sites.
Senate
The Senate, meanwhile, has not yet acted on a bill. Republican and Democratic staff of the Senate Health, Education, Labor and Pensions (HELP) Committee have worked feverishly for months to craft a bipartisan bill to reauthorize IDEA. The latest estimate has the bill being introduced in to mid June, to be followed by a two week period for special education interests to provide comments. The bill, likely amended to incorporate some of the input, would then be marked up by the HELP Committee before the Independence Day recess. There is a reasonable expectation that the bipartisan Senate bill be much improved from the House bill.
Sens. Chuck Hagel (R-NE) and Tom Harkin (D-IA) have introduced S. 939, a bill to secure mandatory full funding for IDEA. This issue will likely be decided on the Senate floor.