2005 IDEA Proposed Rules on Part B and Part D
Preliminary Analysis
(07/05/05)
The American Speech-Language-Hearing Association (ASHA) has preliminarily identified the following issues in the 2005 IDEA Notice of Proposed Rulemaking (NPRM) on Part B and Part D that may be of interest to members. Published in the Federal Register on June 21, 2005, these proposed regulations are intended to implement the recently enacted changes made to the Individuals with Disabilities Education Act (IDEA) by the Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108-446, or commonly known as IDEA 2004) that can be viewed in its entirety in the June 21, 2005 Federal Register [PDF].
ED also announced a second series of regional public meetings in the summer of 2005 to solicit comments on the IDEA proposed regulations. All comments on the proposed regulations are due on or before September 6, 2005, reflecting a 75-day comment period as required by the law.
The issues below have been identified as critically important to the professions of speech-language pathology and audiology. Additional issues are being identified by an IDEA Member Advisory Group (MAG) and a National Office staff team. Please continue to check ASHA's IDEA Information Center for further updates.
Highlights of Critical Issues
PERSONNEL QUALIFICATIONS (§ 300.156)
Changes: The proposed rules remove the provision that requires state education personnel standards to meet the highest requirement for a profession or discipline in that state. Such removal was necessary to reflect a change in the law dictated by IDEA 2004. However, the proposed rules (§ 300.156 (d)) do require that a State adopt a policy that includes a requirement that local education agencies (LEAs) in the State take measurable steps to recruit, hire, train, and retain highly qualified personnel to provide special education and related services to children with disabilities. Language in Congress' report on the amended law indicated its intent for this requirement.
Also, the previous "waiver" provision has been removed from current regulations. Under this provision, states could permit schools to depart from personnel standards in the case of personnel shortages. Congress eliminated this option by indicating in its amended law that certification or licensure requirements may not be waived on an emergency, temporary, or provisional basis for related services personnel who deliver services in their discipline or profession. The proposed regulation allows paraprofessionals and assistants who are appropriately trained and supervised to assist in the provision of special education and related services to children with disabilities.
ASHA's Position: ASHA continues to be concerned about the potential changes in personnel qualification standards and hiring practices that may result from changes in IDEA 2004 and implementing proposed regulations. Qualifications that are needed to provide the appropriate quality and quantity of services to students with disabilities have been well established by professional organizations, as well as state agencies, such as licensure boards. Such information would be critical to state education agencies as they consider appropriate qualifications for related service providers.
In addition, consistency within a state among certifications or licenses for practice in various settings is essential to guard against the creation of a two-tiered system where children with disabilities in the schools receive services provided by personnel less qualified compared to the pediatric services provided in settings, such as hospitals and private clinics.
Availability of qualified personnel is essential to providing services to children with disabilities. ASHA believes that more guidance from the Department of Education is needed to ensure that States and LEAs implement proven strategies of recruitment and retention of qualified personnel. For example, studies have shown a relationship between working conditions and shortages. Large caseloads, increased paperwork, and lack of time for planning and collaboration have been shown to contribute to burn-out and attrition. Furthermore, large workloads constrain teachers' and related service providers' ability and capacity to engage in the roles that are necessary to provide the appropriate quality and quantity of service needed by today's diverse and complex students with disabilities and their families. Recent research indicates that when personnel are required to provide services to large numbers of children with disabilities, poorer student outcomes and limited yearly progress is made. In addition, there are fewer service options for students with disabilities, thus negating the intent of IDEA.
ASHA is concerned that there is no further explanation of the terms emergency, temporary, or provisional to guide State Education Agencies in the proposed regulations. This same prohibition of emergency, temporary, or provisional certification or licensure was applied in an earlier section of the proposed regulations (§ 300.18(b)(1)(ii)) on requirements for a highly qualified special education teacher. However, the ensuing section (§ 300.18(b)(2)) clarifies the circumstances under which a special education teacher who is participating in an alternate route to certification program is considered to meet the standards of the previous section. ASHA believes that similar clarification, as indicated above, needs to be provided for the related services personnel section.
ASHA strongly believes that parameters need to be identified that specify how paraprofessionals and assistants should be trained, utilized, and supervised. It is critical that the Department of Education provide the guidance necessary to ensure that, as federal funds are used to implement the provision for utilization of paraprofessionals and assistants, there is at least a minimum framework for states to use in developing policies related to such personnel.
ASSISTIVE TECHNOLOGY (§ 300.34 (b))
Changes:The current statute excludes "a medical device that is surgically implanted, or the replacement of such device" [sec 602 (26) (B)] as a related service exception. The proposed regulation to implement this section of the law [§ 300.34 (b) under Related services] specifies this exception, but also excludes "optimization of device functioning" and "maintenance of the device."
ASHA's Position: ASHA believes that adding "optimization of device functioning, maintenance of the device" to the related service exception is NOT what Congress originally intended in P.L.108-446, and that the proposed regulations exceed what is contained in the law. The inclusion of the above two phrases in regulation may restrict the ability of an IEP team from recommending related services that are necessary to assist a child with a disability to benefit from special education. For example, a cochlear implant is a medically implanted device for processing sound, including oral language. However, the cochlear implant recipient still needs instruction in listening and language skills to process oral language, just as other children do who have less severe hearing loss and wear hearing aids. However, according to the proposed regulation, children with cochlear implants may not receive these necessary related services from audiologists and speech-language pathologists because these services could be viewed as "optimizing the functioning" of a medically implanted device. The proposed language in this regulation appears to be overly prohibitive, contradicting IDEA's guarantee of a free and appropriate public education to children with disabilities, and should be modified.
EARLY INTERVENING (§ 300.226)
Changes: The proposed regulations implement a new authority in IDEA 2004 that provides that an LEA may use not more than 15 percent of the Part B funds it receives to develop and implement coordinated, early intervening services for children who have not been identified as eligible under the Act, but who need additional academic and behavioral support to succeed in a general education environment. The proposed regulations do not specify that related services providers are providers of early intervening services.
This section of the proposed rules also includes a Construction provision that states "Nothing in this section shall be construed to either limit or create a right to FAPE under Part B of the Act or to delay appropriate evaluation of a child suspected of having a disability."
ASHA's Position: ASHA recommends that ED include related services providers among providers of early intervening services. Specifying related services personnel as providers of early intervening services clarifies that students in need of academic and behavioral services shall receive them from the full expertise available in the school building and, further, encourages collaboration between special and general education staff. Related services providers, including speech-language pathologists and audiologists, are the staff members referred to as "pupil services personnel" in the No Child Left Behind Act and are frequently called upon to work with at-risk students. They also provide consultation to teachers and other school staff on instructional and behavioral strategies to better serve students in need.
ASHA supports the inclusion of the Construction section in the final regulations. The content of this section addresses ASHA's previously expressed concern that early intervening services must not be used as a means of avoiding special education requirements and/or procedural safeguards. It reinforces early intervening services as a short-term approach to making necessary instructional modifications and/or building requisite skills for children who are not identified as having a disability. Early intervening services can be discontinued for those students who close the gap in performance level with their non-struggling peers while students who continue to display low rates of progress can be moved to higher levels of intervention.
EVALUATION PROCEDURES (§ 300.304 (c)(1)(ii))
Change: The regulations include a provision that assessments and other evaluation materials used to assess the child are provided in the child's native language unless it is clearly not feasible to do so.
ASHA Position: ASHA supports ED's inclusion in the proposed regulations of the above provision. However, ASHA is concerned that the guidelines for evaluation procedures do not clearly address issues that arise when evaluating English Language Learners, also known as Limited English Proficient (LEP) students. ASHA believes that ED should provide more guidance in the regulations on the language in the IDEA '04 (Section 614) that states that evaluation materials are to be "provided and administered in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer." Given the limited expertise that many special education personnel have in assessing ELL students, Section 614 is too open to interpretation and needs to outline more specifics to guide these personnel. More clearly defined guidelines for assessing the ELL population will assist in reducing the disproportionately high number of ELL students in special education.
SPECIFIC LEARNING DISABILITIES (§ 300.307)
Change: ED has overall strengthened the provisions in the specific learning disabilities section of the proposed regulations (§ 300.307 ) for evaluating children suspected of having specific learning disabilities. In particular, states may not require the use of a severe discrepancy between intellectual ability and achievement for determining whether a child has a specific learning disability. States must also allow the use of response to scientific, research-based intervention.
ASHA's Position: ASHA supports this strengthening. In addition, ASHA believes that time limits must be placed on the length of time that a student can remain in the category of a child suspected of having a specific learning disability before a referral for an evaluation to determine if the child needs special education and/or related services.
The group members who determine whether a child suspected of having a specific learning disability is a child with a disability (§ 300.308) does not specifically include speech-language pathologists. ASHA recommends the addition of the term "speech-language pathologists" to the group of professionals qualified to conduct individual diagnostic assessments of children in this section.
Up to 80% of students identified as having a specific learning disability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, and/or mathematics problems, have a language-based disability. Speech-language pathologists (SLPs) are the professionals with the expertise and education to conduct individual diagnostic assessments in the area of speech and language. These professionals were listed among those qualified to conduct individual diagnostic assessments of children in the 1999 IDEA final regulations that implemented the 1997 IDEA amendments; however, they are not specifically included in the 2005 IDEA proposed regulations.
There is nothing in the explanatory notes to the proposed regulations that explains why SLPs were not included this time. Without any mention of "speech-language pathologists" it may be assumed that the "individual diagnostic assessments in the area of speech and language" could be conducted by someone other than a speech-language pathologist. It also is important to know if the child has a "speech or language impairment" rather than a "specific learning disability."
INDIVIDUALIZED EDUCATION PROGRAM (IEP) (§ 300.320 - § 300.328)
Changes:The IDEA 2005 proposed regulations include a number of changes regarding the IEP. The IEP may be modified without an IEP meeting if the parent and school agree to such a process. Consolidation of re-evaluation and other IEP meetings is encouraged. IEP meetings may be convened using alternative means, such as videoconferencing and conference calls. The member of an IEP team does not have to attend or can be excused from an IEP meeting under certain circumstances.
ASHA's Position: On the matter of IEP meeting attendance, ASHA recommends that an IEP team member should agree to being excused from the IEP meeting. This should not occur if the member feels that his/her professional expertise is needed at the meeting. It is in the best interest of the child for the team member to participate in this decision-making process as he/she is the only one qualified to make the decision that his/her professional expertise is needed or not. There are some occasions where it may be appropriate for the team member not to be present, and then the time of teachers and related services professionals can be used with maximum efficiency. However, the member must provide input into that decision-making process.