Meeting of the Board of Regents | April 2003

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	Lawrence C. Gloeckler
COMMITTEE:	Vocational and Educational Services for Individuals with Disabilities
TITLE OF ITEM:	Reauthorization of Individuals with Disabilities Education Act (IDEA) and Workforce Investment Act (WIA), including the Rehabilitation Act
DATE OF SUBMISSION:	April 16, 2003
PROPOSED HANDLING:	Discussion
RATIONALE FOR ITEM:	Discussion of major reauthorization issues impacting on individuals with disabilities
STRATEGIC GOAL:	Goal 4
AUTHORIZATION(S):

SUMMARY:

The following is a summary of major items included to date in the federal reauthorization proposals for IDEA and WIA, including the Rehabilitation Act. Bills have been introduced in the House of Representatives and are on a "fast track" for action. While Senate bills will be forthcoming, this report addresses known key issues with substantial implications for individuals with disabilities.

IDEA:

In general, the proposed bills align IDEA with the requirements of the "No Child Left Behind Act," reduce procedural requirements in the special education process at the school district level, place greater emphasis on results and scientific and research-based instructional approaches and enhance early dispute resolution practices. Ten key issues have been highlighted in this report.

WIA:

The Workforce Investment Act includes Title I, Employment and Training Services for Adults and Youth, and Title IV, the Rehabilitation Act. H.R. 1261 The Workforce Reinvestment and Adult Education Act of 2003 is the House reauthorization bill, which is on a fast track, with content changes continuing to occur. H.R. 1261 contains several provisions that would have a significant impact on vocational rehabilitation�s role in the workforce investment system, including possible diversion of vocational rehabilitation funds and limiting of Vocational Rehabilitation representation on local workforce boards.

Reauthorization of Individuals with Disabilities Education Act (IDEA) and Workforce Investment Act (WIA), Including the Rehabilitation Act

 Key Issues and Implications: IDEA (H.R. 1350)

Funding

The proposed bill establishes maximum appropriations over a seven-year period. Actual appropriations are not guaranteed and therefore the commitment to full IDEA funding (40 percent) is not realized in this bill. The bill retains current law regarding the state set-aside and administration amounts. The proposed bill would limit a state�s allocation if the state�s classification rate exceeds 13.5 percent. This provision would not begin until federal funding for IDEA reaches 40 percent. New York State�s classification rate as of 2001 was 11.9 percent.

The bill would allow states and LEAs to use IDEA funds to establish prereferral systems. We would support this provision if IDEA were a partner with other federal Acts, such as the No Child Left Behind Act (NCLB), in contributing funds to prereferral systems.

The bill would exclude state agencies that operate education programs in the definition of a LEA for purposes of receiving LEA funds. This could have a significant negative fiscal impact on state agencies that operate educational programs.

Specific Learning Disabilities

The proposed bill repeals the requirement for a severe discrepancy between achievement and intellectual ability to identify a specific learning disability. LEAs would be allowed under this provision to use a process that determines if the student responds to scientifically-based interventions to determine if the student has a specific learning disability. We support adding the three-tiered approach to the intervention system proposed by leading researchers in the area of learning disabilities.

Parental Choice

H.R. 1350 proposes federal grants that would be available to states to establish parent-choice programs and, in states which have parent-choice programs, allow the use of IDEA Part B funds to pay for some or all of the costs of attendance at the chosen public or private school. A private school accepting funds under this proposal would be deemed to be providing a free appropriate public education although the school would not be required to meet all the IDEA requirements.

This bill could result in a further drain of public funds to private school programs and also does not entitle a child to an appropriate education.

Highly Qualified Personnel

This bill aligns the qualifications for special education personnel with the Elementary and Secondary Education Act (ESEA). The current "highest standard" requirement would be repealed, with the standards being set by states in compliance with ESEA. Special education teachers who teach in core academic subjects may need to be highly qualified in those subjects. This section needs substantial clarification as it is unclear what qualifications would be required.

At the same time the bill would raise the qualification standards of special education teachers, it proposes to eliminate the requirements of the Comprehensive System of Personnel Development (CSPD). The CSPD has been a valuable tool for the Department to impact on professional development in school districts. It should be retained. While competitive grants would be available for professional development, there is no indication that enough money would be available in H.R. 1350 to meet the activities that are supported by the current State Improvement Grant and the demands of the higher standards for teacher qualifications.

Dispute Resolution

The proposed amendments encourage less adversarial dispute resolution mechanisms between LEAs and parents. LEAs would be required to conduct a resolution session with the parents prior to an impartial hearing to provide the LEA with the opportunity to resolve the complaint. States would be required, in addition to mediation, to establish a system of voluntary binding arbitration.

There would be a one-year limitation on issues to be brought to a hearing and the issues to be raised at the hearing must be clearly articulated before the hearing. These new requirements should reduce both the number and length of hearings. Decisions in impartial hearings would be based on the issue of a free appropriate public education as opposed to procedural issues. This will have the effect of decreasing the emphasis on procedural aspects of special education and focusing impartial hearing decisions around appropriate special education programs for students.

States would be required to have a one-tier state-level impartial hearing system. We believe this discretion should be left up to states.

Discipline of Students with Disabilities

The proposed amendments to the IDEA discipline provisions would give authority to LEAs to suspend students with disabilities under the same rules as they suspend nondisabled students. A student with a disability could be suspended without regard to the relationship of the behavior to the student�s disability and without any requirement that the IEP team meet to assess and address the student�s behaviors. The right of the student to continue to receive education services would be retained with some modifications. The right of the student�s parent to appeal the suspension to an impartial hearing is limited to the issue of the placement decision of school officials (repeals current expedited hearing provisions).

As a result of these proposed revisions, more students with disabilities are likely to be suspended from school. The students' ability to control or understand the consequences of their behaviors would not be a factor considered. Students with disabilities could be suspended even in instances when the behaviors could have been prevented if the student�s placement was appropriate and/or if IEP services were provided as indicated on their IEPs.

Due Process

The proposed amendments relating to the prior written notices and procedural safeguards notices would reduce paperwork requirements without significantly impacting on the provision of services to students or rights and protections of the parent. The Governor would establish attorney fee rates.

The proposed amendments would prohibit a LEA from initiating a due process hearing to provide a free appropriate public education (FAPE) to a student when the parent refuses consent for the provision of special education services to the student. This means the school would be absolved of its obligation to provide FAPE to the student. Without due process recourse, a LEA would be forced to provide general education services that may be inappropriate to address the needs of the student that are related to the disability. If the student has a disability, he/she may be entitled to a free appropriate public education and this amendment would take that right away from the student in instances when a parent may not be acting in the best interests of the student.

Participation in Assessments

The proposed amendments add that all children with disabilities are included under assessments described under Title I of ESEA with reasonable and appropriate accommodations where necessary and as indicated in their respective IEPs. The State (or, in the case of district-wide assessments, the LEA) must develop and implement guidelines for the provision of testing accommodations. We support the use of testing accommodations and having valid assessment results on which to base decisions regarding children.

Individualized Education Program (IEP) Development

The proposed bill reduces the contents of the IEP but adds that recommended services must be based on "peer-reviewed research." While there is a need for research-based instructional practices to be used in our schools, it is at the instructional methodology- level. Since methodology is not a required component of an IEP, adding this to the IEP could lead to increased disputes around instructional methodologies.

Multi-year IEPs could be developed for up to three years and reviewed at the end of the child�s natural transition points (elementary to middle school, middle school to high school, high school to post secondary). While conceptually, multi-year IEPs would be a paperwork and procedural mandate relief, the provisions, as proposed, are complicated, as they would still require annual goals and annual meetings. They could also decrease the opportunities for discussion and decisions resulting in movement of students from more to less restrictive environments.

Monitoring, Enforcement, Withholding and Judicial Review

The proposed bill adds a section on focused federal monitoring to improve educational results for all children with disabilities as the primary focus of federal monitoring activities. Priority for monitoring may be given to the provision of educational services in the least restrictive environment, secondary transition and state exercise of general supervisory authority, including effective monitoring and use of complaint resolution, mediation and voluntary binding arbitration. Federal monitoring would include a review of the data collection and analysis capacity of states. The bill would allow the Secretary to establish additional priorities for monitoring.

Determination of compliance would be based on a review of state data. The bill outlines the steps the Secretary would take if the state is not making satisfactory progress in improving educational results, including advising the state of available sources of technical assistance, directing the use of state level funds for technical assistance, and withholding at least 20 but no more than 50 percent of the state�s funds. For substantial non-compliance, the state would be requested to prepare a corrective action plan. The Secretary could impose special conditions on the state�s grant and require the state to enter into a compliance agreement. Other sanctions could include recovery of funds and withholding of payments.

Key Issues and Implications: Title IV Rehabilitation Act (H.R. 1261)

Use of Vocational Rehabilitation Funds for One-Stop Infrastructure

Section 108 of the proposed bill permits governors to divert unlimited amounts of federal program funds from WIA partners, such as vocational rehabilitation, to support administration and operation of One-Stop centers.

This provision would give the Executive unilateral control of federal vocational rehabilitation resources. Funds from vocational rehabilitation would be used to support the One-Stop infrastructure with no direct and measurable benefit to the employment outcomes achieved by individuals with disabilities. Diversion of funds with no benefit to individuals served may lead to Order of Selection. Additionally, diverting funds from vocational rehabilitation would allow Title I to avoid its obligation under Section 188 on Nondiscrimination to assure that the workforce system is fully accessible to individuals with disabilities.

Vocational Rehabilitation Representation on Local Workforce Investment Boards

The proposed bill would change the composition of local workforce investment boards. Mandatory WIA partners would not be required to be represented. Partners would be expected to continue to pay for workforce system programs, but would lose representation regarding system design and service delivery.

Key Issues and Implications: Title IV Rehabilitation Act (H.R. 1261)

Vocational Rehabilitation Funding Formula

The proposed bill maintains the current funding formula for vocational rehabilitation.

The funding formula that determines state vocational rehabilitation program allocations must be revised so that no state receives less than a cost of living increase in any year in which the national appropriation is increased by cost of living.

Increased Emphasis on Transition Services for Youth

The proposed bill adds two sections to State Plan requirements for increased discussion in planning transition activities for youth: an assessment of transition services and their coordination with transition services under IDEA. While such reflection is helpful, it would not create the systemic changes required to increase the accessibility of postsecondary and employment opportunities for students in transition.

Dedicated funding for transition services should supplement resources in the Rehabilitation Act of 1973, as amended, for eligible students with disabilities to create and strengthen substantive linkages between the Vocational Rehabilitation Program and Special Education. Declaration of policy in the Rehabilitation Act should emphasize that seamless transition between special education and vocational rehabilitation services is critical to assuring that youth with disabilities have access to the supports and services necessary to transition to adult roles in the community and employment. The addition of a new rehabilitation employment outcome for youth successfully transitioning from school is needed.

Order of Selection Limits State Flexibility in Serving Vocational Rehabilitation Eligible Individuals

Order of Selection is maintained under the current bill as a mechanism to manage the vocational rehabilitation program fiscally when there are more eligible individuals requesting services than funds from which the program can provide services.

Order of Selection as public policy interferes with the purposes of the Rehabilitation Act and should be eliminated. State agencies should be able to serve all eligible individuals on a first-come, first-serve basis, establishing state priorities. Maintaining performance indicators will assure that vocational rehabilitation services focus on individuals with significant disabilities.