AFB Comments on Proposed IDEA Part B Regulations

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

For information on current issues go to the Public Policy section

Comments of the American Foundation for the Blind submitted to the U.S. Department of Education regarding the Notice of Proposed Rulemaking, 34 CFR Parts 300, 301, and 304, Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities; and Service Obligations Under Special Education—Personnel Development To Improve Services and Results for Children With Disabilities published in the Federal Register June 21, 2005, 70FR35781

September 6, 2005

For further information, contact:
Mark Richert, Esq.
Director, Public Policy Center
American Foundation for the Blind
820 First Street, N.E., Suite 400
Washington, DC 20002
(202) 408-8175
mrichert@afb.net

Introduction

The American Foundation for the Blind (AFB) is pleased to offer these comments on the Department's proposed rules implementing Part B of the Individuals with Disabilities Education Improvement Act (hereafter, the 2004 amendments).

The mission of the American Foundation for the Blind is to enable persons who are blind or visually impaired to achieve equality of access and opportunity that will ensure freedom of choice in their lives. AFB accomplishes this mission by taking a national leadership role in the development and implementation of public policy and legislation, informational and educational programs, diversified publications, and quality services. We have been involved in the education field since our founding in 1921 and in the federal fight for special education since before passage of the Education for All Handicapped Children Act (P.L. 94-142), now the Individuals with Disabilities Education Act (IDEA).

In partnership with consumer and professional organizations both within and outside our field, along with the full cooperation of leading private industry associations and other representatives, AFB led the successful national effort to provide states and local education agencies (LEAs) the infrastructure and assistance they need to ensure timely access to required classroom texts and related instructional materials. We believe the provisions of the 2004 amendments mandating nationwide adoption of a single electronic file format standard to be used by textbook publishers, as well as the establishment of a national system of coordination for the dissemination of such electronic materials, are significant new tools for educational agencies to use as they meet their long-standing obligations to provide timely and effective access to educational information of all kinds to all students with disabilities. Far from being an array of new federal burdens on educational agencies, these vital provisions will streamline the task of state and LEA compliance with federal and state access requirements. AFB is committed to continuing to work with the Department, with industry, with states and LEAs to make instructional materials accessibility for all students with disabilities a reality.

Our comments herein focus primarily on the new instructional materials provisions of the proposed rules. However, AFB has also endorsed the formal comments of the Consortium for Citizens with Disabilities (CCD) Education Task Force. We believe the CCD comments offer a wide array of recommendations, especially with respect to the procedural protections of the law, which the Department ought to incorporate in the final rule. That having been said, there are two points at which the CCD comments do not reflect our considered judgment about the proposed regulations, specifically with respect to the three-year allowance for alternative routes to certification and the proposed rule's treatment of travel training, about which we offer recommendations of our own.

Alternative Route to Certification Recommendation: Retain Sec. 300.18(b)(2).

Rationale: The proposed regulations (Sec. 300.18(b)(2)) allow an individual who is participating in an alternative route to certification program to be considered a highly qualified special education teacher for up to three years. This provision builds a measure of flexibility in the rigid requirements of current law that all special education teachers be highly qualified by the close of the 2006 school year. We believe strongly that this provision must be retained. Preserving the flexibility that this provision offers will be of particular value to specialized schools, such as schools for students who are blind or visually impaired, that employ teachers of students with visual impairments who are also primarily responsible for providing instruction in core academic areas and who, as a consequence, will need to be deemed highly qualified both as special education teachers and as instructors who teach core academic content.

We further urge the Department, through regulation or subsequent guidance, to assist jurisdictions as they contend with the profound negative impact that the so-called highly qualified teacher requirements will have on the availability of an already pitifully shallow pool of instructors who can meet the unique needs of students with visual disabilities. Under the Department's own funded study of the scope of the teacher shortage in the vision field, the National Plan for Training Personnel to Serve Children with Blindness and Low Vision, more than twice the number of teachers now serving are needed to provide specialized instruction to the approximately 93,600 students nationally who need such instruction. Recognizing that the current preparation of fewer than 100 new teachers every year to serve these children is likely to decrease even more over time as current university faculty transition out of such leadership, the Department has generously funded a $6.3 million initiative to raise up the next generation of university and other leadership in vision-related special education. However, simultaneously failing to build in significant flexibility in the application of the highly qualified requirements to instructors of children in low incidence populations, such as blindness and visual impairment, would thwart the value and long-term significance of the Department's substantial investment in this area. It may in fact be necessary for the Department to offer a model to states for alternative recognition of the high qualifications that teachers of students with visual impairments do in fact possess.

Orientation and Mobility (O&M) and Travel Training Services Recommendation: Modify proposed Sec. 300.38(b)(4) as follows—

(4) Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction (other than children with visual disabilities regardless of whether such children have additional disabilities), to enable them to—...

Rationale: As part of the 1997 amendments to IDEA, Congress added O&M to the list of statutory examples of related services without making any reference anywhere else in the statute to travel training. In response to the rules the Department proposed to issue to implement the 1997 amendments, AFB and others urged the Department to adopt a definition of O&M services that recognized the distinct nature, scope and purpose of such services, a definition which the Department ultimately promulgated as part of the final rule now in force. However, the Department also added a reference to travel training to the regulatory definition of special education, an action which has led to significant confusion as to the appropriateness of the two distinct professional disciplines of O&M and travel training for various populations of students with disabilities. The inclusion of the travel training reference in the special education definition was particularly surprising given that, at no point in the Department's NPRM on implementation of the 1997 amendments did the Department propose to take such an action. In effect, the Department unilaterally added this reference without any congressional authority.

To try to prepare a constructive response to this unnecessarily convoluted problem, the vision community worked collaboratively with the leadership of the CCD Education Task Force and representatives of the Association of Travel Instructors (ATI) to jointly propose a solution to Congress in this area as it wrestled with IDEA reauthorization. We agreed that the distinct professional disciplines of O&M and travel training should have parallel recognition under the law and that every effort should be made to clarify that, in the case of students with visual impairments, the service to be provided is O&M and not travel training. Unfortunately, Congress rejected the inclusion of travel training in the list of related services examples as part of the 2004 amendments, and, frustratingly, the conference report further exacerbates the confusion by essentially describing travel training as a sub-discipline within O&M.

We want to emphasize to the Department our strong conviction that the pedagogical methodologies and skills training associated with O&M instruction are best suited to meet the unique educational needs of children with visual impairments. Travel training does not and, moreover, is not intended primarily to account for these unique needs. An easy solution to the confusion would have been to recognize both O&M and travel training as related services, an approach specifically rejected by Congress. The legislative history of the 2004 amendments is an unfortunate muddling of the problem with its subordination of travel training within O&M. It is worth noting that, as confused as the conference report is on this point, the discussion concerning O&M and travel training pertains to the overall discussion of related services and not the definition of special education. However, given that the Department proposes to retain inclusion of travel training in Sec. 300.38 in clear contravention of the legislative history and congressional intent of the 2004 amendments, we implore the Department to modify it's proposed definition of travel training to clarify that children with visual impairments, regardless of whether they may have additional disabilities, are not the children intended to be covered by this definition.

Access to Instructional Materials Recommendation: Modify proposed Secs. 300.172(a) and (b) and 300.210 as follows—

Sec. 300.172 Access to instructional materials.

  (a) General. The State must adopt, through state statute, regulation or other controlling authority, the National Instructional Materials Accessibility Standard (NIMAS) for the purposes of providing instructional materials to blind persons or other persons with print disabilities, in a timely manner but no later than one year after publication of the NIMAS in the Federal Register.

(b) Rights and responsibilities of SEAs.

(1) Nothing in this section shall be construed to require any SEA to coordinate with the National Instructional Materials Access Center (NIMAC).

(2) (A) If an SEA chooses not to coordinate with the NIMAC, the agency must provide an assurance to the Secretary that the agency will provide instructional materials to blind persons or other persons with print disabilities in a timely manner.

(B) The assurance required under subparagraph (A) must be provided in writing at such time and in such manner as the Secretary may require and must set forth the specific policies and procedures which the SEA has in place that are calculated to make instructional materials accessible to students with disabilities at the same time such materials are made available to non-disabled students.

(3) Nothing in this section relieves an SEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, regardless of whether the NIMAC provides assistance to the SEA for such children, receive those instructional materials in a timely manner.

Sec. 300.210 Purchase of instructional materials.

(a) General. Not later than December 3, 2006, two years after the date of enactment of the Individuals with Disabilities Education Improvement Act of 2004, an LEA that chooses to coordinate with the National Instructional Materials Access Center, when purchasing print instructional materials, must acquire those instructional materials in the same manner, and subject to the same conditions as an SEA under Sec. 300.172.

(b) Rights and Responsibilities of LEAs.

(1) Nothing in this section shall be construed to require an LEA to coordinate with the National Instructional Materials Access Center.

   (2) If an LEA chooses not to coordinate with the National Instructional Materials Access Center, the LEA must provide an assurance to the SEA describing in writing the policies and procedures which the LEA has in place that are calculated to make instructional materials accessible to children with disabilities at the same time such materials are made available to non-disabled children.

   (3) Nothing in this section relieves an LEA of its responsibility to ensure that children with disabilities who need instructional materials in accessible formats, regardless of whether the NIMAC provides assistance to the LEA for such children, receive those instructional materials in a timely manner.

Rationale: AFB commends the Department for both recognizing the clear need to affirmatively address the persistent overall national lack of access to required instructional materials and for unequivocally articulating, for the first time in regulations implementing America's special education law, the unambiguous obligation of SEAs and LEAs to ensure such access for all students with disabilities. We strongly believe that the provisions of the 2004 amendments regarding access to instructional materials for children with vision loss or who may have other so-called print disabilities were intended to be construed broadly and with a view toward meeting the needs of all students who may need specialized access to required textbooks and other core academic materials. However, without additional direction from the Department, SEAs and LEAs will neither be assured of their full compliance with the 2004 amendments nor be able to assure the Department, with integrity, that the students they serve are indeed receiving meaningful access to classroom materials.

Current law now requires SEAs and LEAs to "adopt" the National Instructional Materials Accessibility Standard (NIMAS) in a "timely manner." However, the proposed regulations neither clarify what adoption might mean (especially in the case of LEAs which may not have sufficiently-defined mechanisms in place to establish such standards within their respective jurisdictions) nor define what timely adoption of the standards means. With respect to the issue of timing, the regulations should provide that NIMAS should be adopted by all SEAs and LEAs no later than December 3, 2006. Additionally, the rules should require both SEAs and LEAs to formally adopt NIMAS through statute, state or local regulation or other controlling authority within each jurisdiction. Without this clarification, there can be little assurance that LEAs especially will have taken all necessary steps to institutionalize the use of NIMAS.

The proposed regulations merely repeat the provisions of the 2004 amendments allowing SEAs and LEAs to elect whether they will coordinate with the National Instructional Materials Access Center (NIMAC) established by those amendments to serve as a repository and distribution mechanism for textbook-publisher-provided standardized electronic files. As proposed, the regulations fail to specify precisely how SEAs and LEAs make this election and communicate their decision to 'opt in' or 'opt out' of this coordinated national system.

The final rule should require SEAs and LEAs to certify in writing to the Secretary their decision whether to participate in this national system. Moreover, a roster of jurisdictions that have elected to participate should be maintained and published by the Department, or some other mechanism should be required to ensure SEA and LEA public accountability for their obligation to affirmatively act to coordinate with, or not to coordinate with, the NIMAC.

With respect to SEA and LEA buy-in to the newly-created national accessible textbook system, the proposed regulations simply echo the statute's sketchy requirement that, if the SEA or LEA elects not to coordinate with the NIMAC, such SEA or LEA must provide an "assurance" to the Secretary (or the relevant SEA as the case may be) that the jurisdiction "will provide instructional materials...in a timely manner."

The proposed regulations do not specify when and how such an "assurance" is to be tendered and what particulars it must contain to be deemed satisfactory by the Secretary or by the SEA. In the case of the assurances required of LEAs, without additional direction from the Department, one could conceive of a scenario where an LEA's special education funding might be jeopardized because the SEA in question deems the LEA's assurance unsatisfactory, rejects it, or otherwise claims that such an assurance was not provided, even though the LEA may very well in fact have strong policies and procedures in place. In other words, without clarification and standardization of the content of the required assurances, the door is left wide open to a colossal finger-pointing contest between the SEA and LEA over which entity failed to honor its access obligations to children with disabilities.

With respect to the criteria to be used in assessing the sufficiency of the required assurances, such assurances should be provided by SEAs and LEAs through a distinct and well-defined process with clear parameters for the provision of equal access to instructional materials. As currently drafted, the proposed regulations do not provide any guidance to SEAs and LEAs in preparing the required assurances. The manifest intent and legislative history of the 2004 amendments provides ample justification for requiring that, if SEAs and LEAs elect not to coordinate with the NIMAC, they must provide a written "assurance" to the Secretary detailing the precise policies and procedures that will be in place to provide students with disabilities access to instructional materials at the same time as such materials are made available to their non-disabled classmates. Indeed, this should be the standard applied to all SEAs and LEAs, regardless of whether they elect to participate in the newly-created national system of coordination through the NIMAC—and our modifications to the proposed regulations are aimed at this objective as well.

IEP Recognition of Instructional Materials Access Recommendation: Modify proposed Sec. 300.320(a)(4) as follows—

(4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child—

(i) To advance appropriately toward attaining the annual goals;

   (ii) To be involved in and make progress in the general education curriculum in accordance with paragraph (a)(1) of this section, and to participate in extracurricular and other nonacademic activities;

(iii) To access and use all instructional materials (in specialized formats appropriate to the individual needs of the child) that are required for involvement and progress in the general education curriculum, including technologies employed to deliver required instructional content; and

(iv) To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section...

Rationale: The IEP is central to the provision of educational and related services and supports that guarantee students with disabilities a free and appropriate public education. With the inclusion of provisions in the 2004 amendments that standardize the process for conversion of textbooks into a variety of formats, as well as establish a more efficient system to ensure their timely delivery, SEAs and LEAs will have the tools they need to achieve significantly greater access to instructional materials than they have been able to accomplish in the past. Consequently, the IEP should reflect this assistance to SEAs and LEAs by ensuring that this array of new tools is being used to provide students with disabilities access to materials they need to progress in the general education curriculum. With the emphasis in America's special education law on inclusion and the provision of services in the so-called least restrictive environment, the IEP must describe how children with disabilities will be able to make use of required instructional materials that their non-disabled classmates are also required to use.

Special Factors Recommendation: Modify proposed Sec. 300.324(a)(2)(iii) as follows—

(iii) In the case of a child who is blind or visually impaired—

(I) Provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child; and

(II) Consider the provision of socialization and independent living skills, orientation and mobility, and training in the use of assistive technology devices, including low vision devices as appropriate; ...

Rationale: It is estimated that over 65% of independent living and socialization skills are learned through visual observation. For those children who cannot learn through visual observation such as those who are blind or visually impaired, it is critical that these skills are taught by professionals qualified to provide instruction in specialized techniques. The modifications we propose here are intended to facilitate inclusion in the IEP for blind or visually impaired students instruction in a variety of skills necessary for independent living, including but not limited to: general organization techniques, eating, grooming, hygiene, identification and care of clothing, identification and management of money, measurement, telling time, food preparation, household cleaning, and shopping. These skills are critical in preparing children for employment, social integration and full participation in their communities. The proposed modification also underscores the importance of orientation and mobility (O&M) training as a part of a blind child's Individual Education Program.

O&M requires problem solving, map reading, use of community resources, and use of assistive technology such as a long white cane. The skills help students gain self confidence, greater social and community interaction and more possibilities for employment. In addition these skills transfer to tasks requiring understanding of concepts such as spatial relationships needed in map reading mathematics and physical education.

Our proposed modification to this section also emphasizes the importance of assistive technology in ensuring access to the general curriculum for students who are blind or visually impaired. Students who have low vision should be taught by skilled professionals how to use a combination of technical, nontechnical and nonvisual techniques to use their vision efficiently. Therefore, as a part of the IEP, students with low vision should be tested by professionals trained in the area of visual efficiency and should be provided with the appropriate opportunities to use low vision devices.

Finally, we wish to amplify the concern raised by our colleagues in CCD over the Department's proposed elimination of the consideration of these and other special factors during IEP review and revision. We agree that such an action by the Department is not warranted. However, our particular concern stems from the practical reality that the statutory special factors language concerning the provision of Braille demands, by its very construction, allows the opportunity for the IEP team to incorporate Braille instruction at any time the IEP team meets and makes a determination about such instruction. There is absolutely no congressional intent to support the proposition that an IEP team's determination that Braille is not necessary is a once-for-all-time decision that closes the door to future Braille instruction. Especially given the 2004 amendments' emphasis on access to instructional materials, and the dramatic increase in the availability of materials in an array of specialized formats including Braille that we expect these new provisions to yield, the need to provide Braille instruction to students who might not have otherwise been able to use such materials is likely to change for many students over time. Therefore, the per se statutory requirement to provide Braille instruction to such students must be honored at all stages of the IEP development, review and revision process.