IDEA Update October 31, 2004

 

IDEA is now being discussed in a conference committee with members from the House and Senate (see below for the list). The Senate approved its IDEA bill on May 13, 2004 (see RRN #35 for details), and the House passed its bill on April 30, 2003 (see RRN #21 for details). Because the bills contain significant substantive differences, they must be reconciled in conference.

The DREDF Rapid Response Network reported on and analyzed these bills when they were passed, and in the months leading up to passage, we presented extensive commentary on the issues under discussion. The House bill drastically weakens civil rights protections for students with disabilities; the Senate bill improves the law in certain areas but also contains some provisions that water down students’ rights.

It appeared for some months that the election and other concerns had elbowed IDEA off the agenda of this Congress. Then the Senate appointed conferees on September 21, 2004. The House appointed its conferees on October 8. So IDEA is still alive in the 108^th Congress, which ends in December, though it will be put forward during the lame duck period after the session reconvenes following the election, currently scheduled for November 15.

Scroll down for a complete list of conferees with email addresses and fax numbers. The Senate appointed the entire HELP Committee. The House appointed three members of the Judiciary Committee to look at Section 205 of the House bill, and Section 101 of the Senate bill, three members of the Energy and Commerce Committee to look at Section 101 and Title V of the Senate bill, and eight members of the Committee on Education and the Workforce.

WHERE ARE WE NOW?

There are three possibilities: the bill goes to the floor individually; it goes as part of a large omnibus bill, something that often occurs at the end of a session; or it doesn’t emerge in reconciled form from conference. Should Congress fail to present an agreed upon bill to the President or should President Bush not sign the bill, the IDEA reauthorization process must begin all over again in the 109^th Congress.

Note: Once passed, the new law does not go into effect until regulations have been issued, a process that can take at least a year and perhaps longer. In the meantime, as has been the case throughout this process, the law currently in force remains the Individuals with Disabilities Education Act Amendments of 1997. The House bill significantly erodes the civil rights protections for students in current law, and there is no question that its becoming law would represent a major setback. The Senate bill is more mixed: several provisions are improved, while several protections are lost or watered down.

Different groups have used different strategies over the more than two years of the IDEA reauthorization process. Some have opposed any change to existing law and continue to urge rejection of a reauthorized IDEA, whether the House or the Senate version or an amalgam of both. Others view reauthorization with changes as inevitable and thus have worked to get the best protections possible given the politics and the players. Whatever the strategy, families and advocates are united in wanting the best possible education for children with disabilities.

SOLIDARITY AND STRATEGY

While reasonable people may differ on strategies and prognostications, all parents and advocates remain of one mind about the need to protect the interests of our children and families. What, then, are the scenarios we face? Nothing more will happen until after the election, and there is speculation about what it means if the conference fails to come to an agreement and the reauthorization bills die at the end of this congressional session.

In that case, we are left with current law in the meantime, and for many parents and advocates, keeping the status quo represents a success. However, it is likely that the reauthorization process will start all over again with a newly elected 109^th Congress, and much depends on the makeup of that Congress and who is in the White House.

Action alerts will pour in from all sides as discussions become public. The advice from DREDF: speak your mind if you have something to impart to Congressional conferees-whatever your views. It is critically important that members of Congress know that this bill affects millions of students and families and that we are paying attention.

DREDF’s view is that the Senate amendments, despite shortcomings, are so significant an improvement on the very terrible House bill that we hope you will urge conferees to hold the line on change to at least what the Senate has proposed. Conferences use negotiation and aim for compromise, so we are wary of what we may still be asked to give up for our kids.

These are the core principles DREDF believes are the most critical:

1. Funding: The federal government needs to keep its promise to pay its fair sure of IDEA costs.

2. Benchmarks and objectives: In order to hold schools accountable for providing services to students with disabilities, it must be clear what the goals are and how they are to be reached so that progress can be assessed and monitored.

3. Discipline and stay put: Students whose disabilities present behavioral challenges require functional behavioral assessments and positive behavior intervention plans, not a punitive system that penalizes them for their disabilities. Schools should not unilaterally remove certain students from their current placement for violations that result from the child’s disability.

4. Procedural protections/”paperwork reduction”: The term “paperwork reduction” has been used as a smokescreen for eliminating or weakening procedural protections. Streamlining documentation is a laudable goal, but it must not occur at the risk of accountability.

5. Attorney fees: IDEA is a fee-shifting statute that provides for payment of fees by the school districts to parents who prevail at administrative hearings and in court (“prevailing party”). These provisions are modeled after and are identical to other civil rights fee-shifting provisions designed to allow poor and low-income and minority and non-English-speaking plaintiffs access to attorneys. Any provision to cap attorney fees for attorneys who represent families is a disaster for parents of disabled children who already face striking disadvantages when going up against educational institutions. Moreover, this provision presents a dangerous precedent for the setting of attorney fees in other areas.

THE NUMBERS ARE IN-SORT OF

The Office of Special Education programs (OSEP) has posted exit date for the 2002- 2003 school year at http://www.ideadata.org/tables27th/ar_ad2.htm. Of the 615,894 IEP students ages 14 to 21, 39.4% graduated with a regular diploma or certificate, 27.9% are classified as “moved, known to continue,”  7.2% are classified as “Moved, not known to continue,” and 13.2% dropped out of school.  Using the Department of Education’s order that all students classified as “moved” should be counted as dropping out, the drop-out percentage rises to 48.45%; OSEP agreed only to reclassify the “moved, not known to continue” group, thus yielding a dropout percentage of 20.5%. (DOE found that some districts and states were using the “moved” categories for IEP students who had dropped out; OSEP defines “dropped out” as “the total who were enrolled at some point in the reporting year, were not enrolled at the end of the reporting year, and did not exit through any of the other bases described.  This category includes dropouts, runaways, GED recipients, expulsions, status unknown, and other exiters.”)

So these numbers may be subject to dispute or interpretation. Nevertheless, however one explains the reasons why students leave school, the first figure is a sad commentary: fewer than 40% of students with IEPs receive a diploma or a certificate.