Analysis of Major Issues in the IDEA Reauthorization Law

(12/02/04)

Congress has completed its work on reauthorizing the Individuals with Disabilities Education Act (IDEA). President Bush will be signing the bill into law on December 3, 2004. ASHA members, especially school-based members, need to know that the changes made in the new law could have an effect on their work, the children they serve, and their profession.

ASHA members should pay close attention to provisions in the new law, including those that: deal with paperwork reduction and personnel qualifications, modify Individualized Education Programs (IEP), establish birth-to-six programs and new early intervening services, and give states additional options to identify children with specific learning disabilities.

ASHA devoted considerable resources to advancing members' interests through intensive direct lobbying by ASHA staff and a coalition of parent, professional, and business organizations. We also wish to thank the ASHA members who made hundreds of visits to Capitol Hill and sent thousands of letters, email, and phone calls to members of Congress toward this effort.

An extensive effort was made to ensure that ASHA members, working in school settings, provided input into the Association's priorities for the IDEA reauthorization. These key issues, including paperwork reduction, maintaining qualified providers, model forms, and enhanced transition into and from Part C programs, were communicated to Congress during the three-year reauthorization process. ASHA was pleased with such outcomes as paperwork reduction, model forms, and improvements in the IEP process; but was disappointed in Congress' action on personnel qualifications.

Executive Summary

This analysis briefly examines the provisions affecting:

• paperwork reduction;
• qualified related services providers;
• changes to the Individualized Education Program (IEP);
• changes to the identification of specific learning disabilities; and
• new early intervening efforts;

It also provides further background on:

• optional birth-to-six programs;
• transition points;
• the newly established National Center for Special Education Research;
• changes affecting English language learners;
• new professional development opportunities; and
• the funding of IDEA programs.

ASHA staff is currently conducting a comprehensive review which will be made available to ASHA members as soon as possible.

Current Status

The "Individuals with Disabilities Education Improvement Act of 2004" (H.R.1350) has been passed by both the House and Senate and awaits President Bush's signature into law. Upon the President's signature, the following will be effective immediately:

• the new definition for highly qualified special education teachers;
• the provisions in the remainder of Part D, including Subparts 2, 3, and 4; and
• the establishment of the National Center for Special Education Research.

IDEA parts A, B, and C, and subpart 1 of part D of the law are scheduled to take effect on July 1, 2005. The legislation reauthorizes IDEA for six years. New regulations will be developed through the U.S. Department of Education (ED) to give more specificity and help implement the new law.

Paperwork Reduction Waiver/Model Forms

The Secretary of the U.S. Department of Education may grant waivers of statutory or regulatory requirements under Part B, other than civil rights requirements, for up to 15 States and a maximum of four years, based on State proposals to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities. This waiver program is not intended to affect the right of a child with a disability to receive a free appropriate public education (FAPE) or permit a State or local education agency (LEA) to waive specified procedural safeguards. In certain annual reports to Congress, the Secretary shall include information related to the effectiveness of such waivers, including any specific recommendations for their broader implementation.

The bill also requires the Secretary of Education to "publish and disseminate", no later than the date regulations are published, models of the following:

• Individualized Education Program (IEP) forms;
• Individualized Family Services Plan (IFSP) form;
• notice of procedural safeguards; and
• prior written notices.

Qualified Providers

It is a major concern to ASHA that the bill eliminated the requirement that state education personnel standards meet the highest requirement for a profession or discipline in that state. Qualifications for related services personnel may now be consistent with any state-approved or state-recognized certification, licensing, or other comparable requirement applicable to a specific professional discipline. Such personnel must not have had their certification or licensure requirements waived on an emergency, temporary, or provisional basis.

States are no longer required to develop a comprehensive system of personnel development, but must adopt policies that require local education agencies (LEAs) to take measurable steps to recruit, hire, and retain highly qualified personnel.

ASHA President Larry Higdon expressed great disappointment in Congress' decision to eliminate the highest qualified provider requirement. The accompanying report language to the bill indicated concern that current law has "established an unreasonable standard for State educational agencies to meet, and as a result, has led to a shortage of the availability of related services providers." ASHA's Executive Board discussed the challenges faced with the passage of the bill. It was decided that staff will develop a plan of action by early December to work effectively with and support state associations in dealing with these changes. An ASHA staff team has been identified, met, and is developing its recommendations.

Individualized Education Program (IEP)

The bill provides that nothing in IDEA regarding IEPs shall be construed to require additional information in an IEP beyond what is explicitly required. A member of the IEP team may be excused from an IEP meeting: (1) if no modifications are being made to that member's area of curriculum or service; or (2) when a relevant modification is made, if the member provides input prior to the meeting. However, the IEP team member, the parent, and the LEA must agree to the member's being excused.

LEAs are encouraged to consolidate IEP meetings and re-evaluation meetings. Parents and LEAs may agree to participate in IEP team and placement meetings via means such as video conferences and conference calls. Parents and LEAs, through a responsible teacher or service provider, may amend or modify the child's current IEP without having to convene an IEP meeting. Parents and LEAs may also develop three-year IEPs for students aged 18 and older, emphasizing interagency coordination with adult programs. In addition, the new bill eliminates mandatory benchmarks and short-term objectives for children with disabilities, except for those children who take alternate assessments aligned to alternate achievement standards.

Specific Learning Disabilities

The bill revises a special rule for eligibility determination to provide that a lack of scientifically based reading instruction cannot be the determinant factor for deciding whether the child is a child with a disability. The bill gives local educational agencies the option to eliminate the IQ-discrepancy requirement - "a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability" - and to allow response-to-intervention as one alternative - "in determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures".

Early Intervening Services

The bill allows local educational agencies to use up to 15 percent of its IDEA Part B funds for supportive services to help students not yet identified with disabilities, but who require additional academic and behavioral supports to succeed in a general education environment. These activities must include an educational component that promotes schools readiness and incorporates pre-literacy, language, and numeracy skills. No new funding was provided for these activities.

Birth-to-Six Program

This change allows participating States to combine early intervention and pre-school programs to better serve families of children with special needs and to use Part B and Part C monies to do so. Parents in participating States, when their special needs child receiving services under Part C reaches the age of exit, have the option to waive free appropriate public education (FAPE) and to remain in the Part C program, provided it includes an educational component promoting school readiness and incorporating pre-literacy, language, and numeracy skills.

Transition

Language has been added to strengthen transition requirements for both Part B and Part C. IEPs (Part B), beginning not later than the first IEP to be in effect when the child is 16, and updated annually thereafter, must contain: (1) appropriate measurable postsecondary goals based upon age appropriate assessments related to training, education, employment, and, where appropriate, independent living skills; and (2) the transition services the child needs to reach those goals. The Individualized Family Services Plan (IFSP) (Part C) must include a description of transition services for the child as the responsibility of the service coordinator. When applicable, steps for exiting from early intervention must be included in transition plans.

National Center For Special Education Research

The center will be authorized under a new Part E and established under the Institute of Education Sciences (IES). Research formally conducted or funded by the Office of Special Education Programs (OSEP) will be shifted to the new Center.

English Language Learners

The bill revises data collection requirements to require States to collect information on the categories of gender and, where appropriate, limited English proficiency status.

New Professional Development Grant

The new bill renames and replaces the current Part D, Subpart 1, State Program Improvement Grants with a program called the State Personnel Preparation and Professional Development Grants. The law allows the Secretary of Education to give priority in awarding these grants to States that: (1) have the greatest personnel shortages; or (2) demonstrate the greatest difficulty in meeting Part B requirements for personnel qualifications.

The grant requires state education agencies, in order to be considered for a grant, to: (1) establish a professional development partnership (PDP) with LEAs and other State agencies involved in, or concerned with, the education of children with disabilities, including institutions of higher education and the State agencies responsible for administering IDEA Part C, child care, and vocational rehabilitation programs; and (2) work in partnership with other persons and organizations involved in, and concerned with, the education of children with disabilities.

Funding

The bill authorizes—but does not mandate—full funding by 2011. It authorizes funding increases of about $2.3 billion per year with a goal of reaching 40% of per pupil funding.

ASHA staff will continue to examine and analyze the law and communicate a more in-depth analysis shortly. For further information, please contact Neil Snyder, ASHA's Director of Federal Advocacy, at 800-498-2071, ext. 4257, or via e-mail at nsnyder@asha.org.