An Analysis of "Improving Education Results for Children with Disabilities Act of 2003" - H.R. 1350

This document is no longer timely and may be only of historical value.

For information on current issues go to the Education Issues section.

The Individuals with Disabilities Education Act (IDEA) guarantees a free, appropriate, public education to children with disabilities. It supports services to infants, toddlers and preschoolers with disabilities and their families. IDEA authorizes federal funding to help states and local schools provide special education and related services. It also authorizes funding to prepare special education teachers and other personnel with specialized skills. Today, approximately six and one-half million children with disabilities receive early intervention, preschool and special education and related services thanks to IDEA.

The American Foundation for the Blind (AFB) has been working with the American Council of the Blind (ACB), the Association for Education and Rehabilitation of the Blind and Visually Impaired (AER), the National Association for Parents of children with Visual Impairments (NAPVI), and others, to ensure that legislation reauthorizing IDEA retains many of the existing protections for disabled children while adding provisions to make the goals of a "free and appropriate education" for blind and visually impaired students more of a reality.

On April 30, 2003, the United States House of Representatives passed H.R. 1350, the "Improving Education Results for Children with Disabilities Act of 2003," on a largely partisan vote of 251-171. Disability advocates believe that the bill would significantly weaken services and supports for children and undermine their protections and rights.

Several significant concerns with H.R. 1350 are outlined below. Much of this analysis is based on a document prepared by the Consortium for Citizens with Disabilities (CCD) Education Task Force. AFB is a member of the Task Force.

According to CCD, Congress has received communication from some 14,500 parents, teachers, and other concerned citizens expressing their opposition to potential changes to the current IDEA law. We need Congress to continue to hear from parents, teachers, and other professionals involved in the education of blind, visually impaired, and otherwise-disabled students.

A Positive Note

Access to instructional materials

While there are many negative provisions in H.R. 1350, there is one positive amendment that will improve educational opportunities for children who are blind or visually impaired. The bill adds a requirement to the list of duties for which state education agencies are responsible under Section 612 of IDEA. It requires states to adopt an instructional materials accessibility standard and ensure that publishers provide textbooks using this electronic standard so that children who are blind or who have other print disabilities receive accessible copies of their textbooks "in a timely manner." Local schools would also have to ensure that publishers provide them with textbooks in this file format.

Key Issues of Concern in H.R. 1350

Changes in the individualized education program (IEP) reduce accountability

Reducing paperwork for teachers was an overriding desire of the sponsors of H.R. 1350. However, the legislation would dramatically weaken important longstanding provisions in the Individualized Education Program (IEP). The legislation establishes a new voluntary three-year IEP option and eliminates the use of short-term objectives and benchmarks by the beginning of the 2005-2006 school year (except for those students taking alternative assessments). These changes were made without any scientific research to document that these provisions will reduce paperwork.

While the three-year IEP is an optional choice for students and parents, many could either be confused by it or feel coerced to accept this option. We believe that an annual IEP is necessary to review students' progress and to make necessary modifications. If parents are pressured to accept a three-year IEP, we are concerned that parental participation and the school's accountability to parents will decrease.

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. Supporters of H.R. 1350 claim that the reporting requirements of the No Child Left Behind Act (NCLB), which would replace the short-term objectives and benchmarks, will ensure that parents are kept informed about their child's progress. The NCLB only focuses on academic achievements and requires annual assessments only in language arts and math by 2005-2006 and adds science by 2007-2008 school years. In addition, NCLB reports will not include information about specific related services such as orientation and mobility, independent living, or assistive technology skills. These are education-related skills covered under IDEA and are significant in measuring students" progress.

Provisions to address shortages in highly-qualified personnel are inadequate and insufficient to improve results for students with disabilities

The shortage of qualified personnel has hampered the full implementation of IDEA since its inception. In the No Child Left Behind Act, Congress determined that every child should have a highly qualified teacher. While H.R. 1350 requires that special education teachers be highly qualified in the core subjects they teach, it does not require this of related services professionals. The bill only requires that these professionals be "appropriately and adequately prepared." In fact, this change actually weakens current law which sets the goal for all personnel, including related services personnel, at a level that meets the "highest requirements" applicable to a specific profession.

The bill does make a positive change by eliminating a troublesome provision, in current law that allows unqualified teachers and related services personnel to teach students with disabilities if the professional obtains the necessary training within three years.

Finally, the significant infusion of funds needed to address the shortage of highly qualified special education teachers and related services personnel is not provided for in H.R. 1350. In particular, ACB, AFB, AER, and NAPVI have called upon Congress to amend IDEA to ensure that federal funds are targeted more directly to support programs that train personnel who serve low incidence students, including blind and visually impaired children. Currently, we have half as many teachers of the visually impaired as we need and ten percent of the orientation and mobility instructors.

Due process provisions

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 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 delay and is unnecessary. 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.

H.R. 1350 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. Furthermore, 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.

The bill encourages the use of voluntary binding arbitration. Voluntary binding arbitration and its corresponding limitations are inappropriate because a child's needs changes over time. What may work for this school year may change as the child develops new skills. 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.

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.

IDEA required to pay more than fair share to address general education problems

H.R. 1350 directs 15% of IDEA funds for pre-referral services, support services required by No Child Left Behind, and other activities. This would be funding to pay for remedial services for students having reading and other academic problems but who have not been determined to have a disability. Also, nothing in the bill precludes schools from keeping children in a pre-referral category indefinitely. While the idea of early identification and intervention is a laudable goal, we remain concerned about funding them with the insufficient supply of Part B funds. While we support collaboration and joint funding, in this instance special education is being asked to finance more than its fair share.

Commitment to fully funding IDEA remains unmet

H.R. 1350 does not provide mandatory full funding for IDEA. In addition to addressing the issue of increasing the number and quality of personnel, we believe that providing mandatory full funding for IDEA is essential for meeting the special education and related service needs of children with disabilities. The lack of appropriate funding has been used by some as justification for their inability or refusal to provide a free public education that is appropriate for students with disabilities. Congress set a goal, in 1975, to pay 40 percent of the national average per pupil cost to help schools offset the excess cost of educating students with disabilities. Estimates put current federal funding levels at 18% for fiscal year 2003.

Gap between research and practices widened

The bill proposes to move the research functions under IDEA out of the Office of Special Education Programs and into the Institute for Educational Sciences. We oppose this move. In an era when scientifically-based research should provide the foundation for programs and services, it is critical that research be directly linked to programs and practices. The research mandate for IDEA is critically tied to the mission of IDEA. Administering these programs in the same agency is critical to ensure the infusion of research-based practice throughout IDEA programs.

New discipline provisions will create adversarial relationships between parents and schools and punish students for having a disability

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)

(U.S. Office of Special Education Programs, 1997)

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 (U.S. GAO, 2001). H.R. 1350 would allow 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 requirement 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 could increase school dropout rates and delinquency by removing appropriate educational services for students whose school success depends upon these services.

Pilot project on paperwork reduction

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 IEP, due process, related services, and other vital protections under the law. Since this pilot program would last four years, a student could possibly be without an IEP for one third of his education.

Change to definition of FAPE will increase litigation

H.R. 1350 changes the definition of "free appropriate public education" by including language from a Supreme Court decision. It amends the definition by adding the concept of "reasonably calculated" as follows:

include an appropriate preschool, elementary, or secondary school education in the State involved that is reasonably calculated to provide educational benefit to enable the child with a disability to access the general curriculum...

The U.S. Supreme Court ruled on the definition of "appropriateness" in the Rowley decision many years ago and Circuit Courts have interpreted it further since. This amendment provides sufficient change to the "FAPE" definition that it could re-open this settled matter for court interpretation, leading to further federal court litigation.

Too little public review and input

While claiming that plenty of time had been provided for input, only six weeks was available to review, analyze and communicate this lengthy piece of legislation to parents across the country. This tactic severely limited meaningful scrutiny of the bill. Indeed, one must wonder how the 435 members of the House had the time to consider a 300-page bill since they voted two days after they returned from recess.