AFB Comments in response to the December 29, 2004 Notice of Request for comments and recommendations on regulatory issues under the Individuals with Disabilities Education Act (IDEA), as amended by the Individuals with Disabilities Education Improvement Act of 2004

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

For information on current issues see the Public Policy and Policy Research section.

The American Foundation for the Blind is pleased to submit comments in response to the December 29, 2004 notice of request for comments and recommendations on regulatory issues under the Individuals with Disabilities Education Act (IDEA), as amended by the Individuals with Disabilities Education Improvement Act of 2004.

The mission of the American Foundation for the Blind (AFB) is to enable people who are blind or visually impaired to achieve equality of access and opportunity that will ensure freedom of choice in their lives. AFB fulfills this mission primarily by preparing and disseminating information resources for the public, educating policymakers about the needs and capabilities of people who are blind or visually impaired, and advocating the development and implementation of blindness-related public policy. A non profit organization founded in 1921 and recognized as Helen Keller's cause in the United States, AFB is a leading national and international resource for blind individuals and the professionals who serve them.

Since our founding AFB has worked to make it possible for blind and visually impaired persons to obtain a quality education. We have continued that tradition in our work with the Congress and the Department of Education on improving the access to education available for the blind or visually impaired children in early childhood and attending school in grades K through 12. We appreciate the opportunity to provide comments in advance of the proposed rulemaking and look forward to working with the Department to achieve the goal of a free and appropriate quality public education for all children who are blind and visually impaired.

Summary

AFB is providing comments and recommendations regarding changes to 34 CFR parts 300 and 303 that we believe are needed. Since many of the comments we are providing relate to new sections in the statute and, therefore, are not yet reflected in the regulations, we will cite the sections in the reauthorized IDEA. AFB provides the following recommendations concerning the education of students who are blind or visually impaired:

• recommendations relating to accessible instructional materials to achieve the goal of providing instructional materials to students who are blind or otherwise print disabled in the alternative format suitable to their needs at the same time as instructional materials are received by their peers who are not disabled;
• recommendations to ensure that students who are blind or visually impaired are provided instruction by highly qualified professionals;
• recommendations to ensure that standardized assessments accurately test the students' capabilities and comprehension;
• recommendations to ensure that any report includes meaningful measurement of a student's progress toward reaching their goals;
• recommendations to ensure that any decisions about the appropriate services to be provided for students who are blind or visually impaired are made with the input of professionals who specialize in the field of blindness and therefore understand the unique needs of the students.

Sec. 612(23) Access to Instructional Materials

The creation and publication of the National Instructional Materials Accessibility Standard (NIMAS) is a significant step toward the provision of instructional materials in an accessible format to students who are blind or otherwise print disabled at the same time as other students who are not disabled. We commend the Department for its important role in developing and publishing the NIMAS.

Issue: The statute does not define "timely manner".

Recommendations: The regulations must define "timely manner" to reflect that the instructional materials be provided in an alternative format at the same time as the other students who are not disabled receive their instructional materials, unless doing so would constitute an undue burden for the school.

Rationale: The purpose of the statutory language would be defeated by not requiring this definition. The legislative history is very clear that the standard for "timely" is at the same time as their nondisabled peers.

The Committee is concerned that many blind or print-disabled students are regularly denied timely access to instructional materials. Currently, these instructional materials, in specialized formats such as Braille, synthesized speech, and digital text, often do not get to the students who need them in a timely manner, which should be the same time fellow students without print disabilities are receiving their copies of the materials.(H.Rept. 108-77)

Issue: The legislative language in the 2004 amendments of the Individuals with Disabilities Education Act (IDEA) creates ambiguities with respect to

• what adoption of NIMAS actually means and
• what performance standards might be required for an "opt-out" state.

These ambiguities can materially affect the time and manner in which students who are blind or print disabled receive their instructional materials. Clear requirements are necessary to insure the promise of on-time delivery of accessible instructional materials.

Recommendation: The regulations should clarify that the meaning of the requirement that states adopt the NIMAS format means that state and local educational agencies, regardless of any existing or future legal requirements to the contrary, must accept and use electronic copies of instructional materials in the NIMAS format provided by publishers. Additionally, the regulations should make it clear that agencies may purchase instructional materials, which have been, or may be converted into alternative formats, from the publishers. Further, it should be clear that the preferred file format is the NIMAS, but regardless of the format obtained, the purpose is to provide the instructional materials to students who are blind or otherwise print disabled in a timely manner. An accessibility duty also needs to be specified to make clear that adoption of the NIMAS isn't enough by itself, but the state also has to ensure both (a) accessible material and (b) timely access.

Rationale: These clarifications are necessary in order to ensure that textbooks can be provided in a timely manner in the accessible format, e.g.. braille, appropriate for the individual student. Organizations such as Instructional Materials Resource Centers need to anticipate their resource needs including appropriately trained braille transcribers. Also, producers of assistive technology must be able to work to a predictable standard in order to produce hardware and software that is compatible with the NIMAS files.

Issue: Lack of clarity of the responsibilities of opt-out states.

Recommendations: The regulations should direct states opting not to use the NIMAC to develop procedures which, at a minimum, address the requirements of Section 674(e)(2) of the statute.

Rationale: Without these minimal requirements, states who opt not to use the Center do not seem to have any accountability for the NIMAS files. Schools and parents would not know who is responsible for the delivery of their textbooks in a timely manner. Furthermore, publishers would not know who to provide the NIMAS file to.

Issue: The statute creates a National Instructional Material Center (NIMAC) to maintain and distribute electronic files in NIMAS. However, the statute gives states the option not to coordinate with the NIMAC.

Recommendations: Opt-out states should adopt accountabilities similar to those used by the NIMAC. The Department needs to require that state and local educational agencies establish and publish procedures to govern the maintenance and distribution of the NIMAS files. If a state educational agency does not choose to coordinate with the Center, it must explicitly notify the Secretary of Education that it will provide instructional materials to students who are blind or otherwise print disabled in a timely manner.

The regulations should require that both the states that coordinate with the NIMAC, as well as those that opt-out, submit data reflecting the timeliness of providing instructional materials to students with print disabilities as part of their annual reports. The data should reflect the number, and type of alternative formats provided, the number of students served and the time elapsed from submission of requests for materials to their delivery.

Rationale: States that opt not to use the NIMAC do not have any established mechanism to validate their assurances of timeliness. Schools and parents would not know who is responsible for the delivery of their textbooks in a timely manner.

Issue: There is a need for the early identification of blind or print disabled students' needs for instructional materials in specialized formats.

Recommendation: The Department should require that, in formulating the Individual Education Plan (IEP) for a student who is blind or print disabled

• specific questions be asked to determine if a student needs accessible instructional materials;
• what subjects that student will be taking, and
• what are the required instructional materials used in those classes.

The school should then immediately start the process of securing accessible versions of those instructional materials. Ideally, this should be done several months before classes start.

Rationale: The instructional materials provisions are new and must be integrated into the IEP at the earliest possible stage of the process.

Sec. 602 Highly Qualified Personnel

Issue: We agree with the Department that all students should be taught by teachers, including special education teachers, who are highly qualified in the subjects they are teaching. However, we are concerned that the application of this requirement may have an adverse impact on certain special education professionals. For example, teachers of the visually impaired (TVI) are not related service personnel. TVIs provide specialized training and services that enable students to participate in core courses. These professionals might teach one student braille math in one school and literary braille in another. Some of these teachers serve as many as 66 schools 1, driving several hundred miles a month to serve their students. These professionals are, in fact, teaching core content but their primary function is to provide instruction in specialized skills such as braille, technology or low vision techniques. If teachers of the visually impaired, who serve in these capacities, are required to be highly qualified in all of the subjects they teach, we will have difficulty retaining and recruiting professionals in this field. There is such a severe shortage in this field that in 2000 it was estimated that there were approximately one-quarter as many teachers as was needed. 2 The problem is made even more difficult for special schools who will need to hire/train teachers with qualifications in both TVI and core content.

Recommendations: The regulations must clearly define what qualifications are required for professionals who perform functions similar to the teachers of the visually impaired. The Department should encourage states to work collaboratively to ensure reciprocity in content standards including NCLB's "high objective uniform state standard of evaluation" (HOUSSE) standards for special education teachers, including teachers of the visually impaired. This will ensure that state "highly qualified" standards for special education teachers, including teachers of the visually impaired, set a minimal threshold. The regulations must make it clear that states should set the same high standards for qualifications for special education teachers as they set for general education teachers. The Department needs to clarify how the highly qualified standards will be applied to teachers in specialized schools such as schools for the blind.

Rationale: It is imperative that teachers who are fully certified as special education teachers possess the competencies needed to fulfill their professional responsibilities. For example, a teacher of the visually impaired should be proficient in the use of braille, technology, low-vision techniques, and have the ability to perform functional vision tests. Consistent standards for special education teachers means that students and parents will be able to expect a level of competency in the classroom.

34 C.F.R. part 300.346 IEP Development, Review and Revision (Sec. 614 of IDEA)

Issue: The 2004 amendments of IDEA eliminate bench marks and short-term objectives for disabled students who will be given standardized assessments. The short-term objectives have been replaced with annual measurable goals. However, the statute does not clarify how progress toward obtaining the annual goals will be measured.

Recommendations: Regulations should include a requirement that any measurable annual goals should include a description of how a child's progress will be measured, give examples of measurable goals, establish concrete timelines for reports, and describe how parents will be notified. They should also clarify that progress reports must be provided at the same time as report cards.

Rationale: IDEA 2004 requires that progress toward the annual goals be reported but no longer explicitly states that progress reports include "the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year" It is critical that parents know whether the progress their child is making is sufficient to meet the goals. If insufficient progress is being made, the parents and the IEP team must address this issue in a timely manner. Parents cannot fully participate in their child's education if they are not told whether their child is making adequate progress.

Issue: The 2004 amendments provide that a student's IEP will contain a "statement of the special education and related services, and supplementary aids and services, based on peer-reviewed research to the extent practicable, will be provided to the child, or on behalf of the child, with disabilities." The recent focus on scientifically-based research and peer-reviewed research is an attempt to ensure high standards of professionalism. However, the lack of specificity gives rise to concern of the impact of such provisions.

Recommendations: The regulations need to specify that peer-review should be accomplished by professionals trained in and specializing in the subject under consideration in the IEP. However, a student should not be denied services simply because no peer-reviewed research exists.

Rationale: Because of the severe shortage of professionals in the field of blindness, the availability of peer-review research is very limited. If there were no peer-reviewed research on the number of hours of braille instruction that a child needs, would a parent of the child who has a visual impairment be able to establish how many hours of braille instruction their child needs?

Sec. 614(d)(1)(A)(i)(VI) Assessments

Issue: Standardized assessments often have questions on them which do not fairly measure the ability and comprehension of students who are blind.

Recommendations: The regulations should require states to develop and use assessments that accurately measure the testing performance of a student who is blind or visually impaired. In designing these assessments, the states should be strongly encouraged to involve professionals specializing in fields of special education relevant to the needs of students who are blind or visually impaired.

Rationale: Professionals who lack specific knowledge of blindness or visual impairment often inappropriately remove sections of standardized assessments because they believe that students who are blind or visually impaired could not complete those sections (for example, sections using graphics or maps). Therefore, in order to achieve standardization, they give heavier weight to those sections which they believe the student can accurately complete. Including specialists with specific knowledge of blindness or visual impairment in assessment and curriculum development would ensure greater accuracy. For example, sections of a standardized tests would not be inappropriately dropped or adapted.

Issue: Parents often have difficulty obtaining training for their children in disability-specific skills.

Recommendations: The regulations should include the requirement that the IEP team consider instructional services related to specific skills needed by students who are blind or visually impaired. These skills are commonly referred to as "expanded core curriculum", "functional performance skills", orientation and mobility, and skill in the use of assistive technology devices, including low vision devices. The regulations should include, by way of explanation, the report language of the Senate, which gives examples of "functional performance skills" including independent living skills". (S.Rept. 108-185)

Rationale: IDEA provides that students with disabilities should receive training in academic as well as in the development of functional performance skills. The Senate report language describes functional performance skills as including independent living skills such as orientation and mobility and the use of assistive technology. Statistics show that, despite a comparatively high rate of graduation for students who are blind or visually impaired among students with disabilities, employment remains critically low. We believe that instruction in these independent living skills will have a significant impact on the outcome of employment for students who are blind or visually impaired. Current regulations already permit related services such as orientation and mobility, but parents sometimes have difficulty obtaining training for their child in independent living skills. Adding language in the regulation concerning this type of training would make the intent of Congress clearer and assist students in obtaining a successful outcome in employment.

Due Process

The 2004 amendments made significant changes with respect to due process issues. Unfortunately, the amendments lack clarity with respect to the records parents must develop in order to prevail in any appeals process. The CCD has commented extensively on this issue. AFB supports these comments.

Conclusion

The American Foundation for the Blind commends the Department for setting in place an expeditious schedule for formulating regulations for the Individuals with Disabilities Education Act amendments. We thank the Department for this opportunity to comment on regulatory issues and for the opportunity afforded to the public to provide comments in the public forums.

Respectfully submitted,

Joy L. Relton, J.D.
Governmental Relations Representative
202-408-8170
jrelton@afb.net

1. Workshop on Blindness and Visual Impairments held on March 10 to 12, 2003 at the Clarion Hotel Roanoke Airport in Roanoke, Virginia, sponsored by the Department for the Blind and Vision Impaired, of the Common Wealth of Virginia.

2. Ann Corn in the Tennessean, Tuesday, November 4, 2003.