|
H.R. 1350 Will Not Accomplish
The Goals of Its Proponents
from the National Association of Protection and Advocacy
Systems, Inc.
For more articles like this
visit
https://www.bridges4kids.org.
According to the House Education
and Workforce Committee’s Fact Sheet “Improving Educational
Results for Children with Disabilities,” the stated goals of the
House bill include:
“…Improving Education Results for Children with Disabilities Act
calls for reforms to strengthen accountability and results for
students, reduce the IDEA paperwork burden for teachers, provide
greater flexibility for local school districts to improve early
intervention strategies, reduce the number of children who are
wrongly placed in special education classes, reduce litigation
and restore trust between parents and school districts, and
align IDEA with the bipartisan No Child Left Behind Act signed
by President Bush in January 2002. NCLB requires
federally-funded schools to be accountable for providing a
quality education to all students, including students with
special needs.” (Emphasis supplied)
From
http://edworkforce.house.gov/issues/108th/education/idea/summary.htm
Addressing these stated goals individually:
1. Strengthen accountability and results for students
One stated goal of HR 1350 is to improve student achievement,
yet the House bill would remove measures for assessing student
progress toward educational goals. There is little if anything
in H.R. 1350 that would actually result in increased academic
results for children or increase the amount of time that
teachers spend with students.
For instance:
· Under current law, measurable short-term objectives/benchmarks
are the major way that schools measure progress for individual
IDEA eligible students in meeting their respective annual goals.
Removing them will result in less, not more accountability for
individual student progress.
o Some have claimed that the individual student reports
generated as a result of the annual statewide assessments
required by NCLB will successfully replace the measurable
short-term objectives/benchmarks. This is not the case because:
(1) they are only mandatory in language arts and math (2005-06)
and science (beginning in 2007-08); (2) they apply only to
grades 3-8: and (3) even if properly implemented, these annual
assessments will result in only an annual student report – short
term objectives/benchmarks break down annual goals into their
component parts.
o Also, NCLB focuses only on academic achievement (and in only
language arts, math and science, at that), while the IDEA
addresses all areas of educational need for students. For
example, for some students, life skills are an important part of
his or her educational program. In such cases, measures of math
and reading and science achievement will provide very incomplete
and insufficient information about that student’s progress.
o Measurable short-term objectives/benchmarks are also needed to
guide the provision of related services such as occupational
therapy and counseling/behavior management. None of these items
are contained within the NCLB reports.
Without measurable short-term objectives/benchmarks, parents
have no objective information with which to measure the child’s
total educational progress.
· HR 1350 would allow the waiver of paperwork requirements in
ten states for up to four years with no statutory criteria
specifying which requirements may be waived. As far as we know,
important parts of the current law, such as the requirements
that specify what a student’s IEP must contain or that parents
must be invited to the IEP meeting might be waived in these ten
states. If these waivers were provided to the nation’s ten
largest states, at least 3,284,607[1] IDEA eligible students per
year could be harmed by this “experiment.” Four years is one
third of the time most students spend in public school. How is
it that this waiver will increase accountability?
2. Restore trust between parents and school districts
The stated goal is that HR 1350 will restore trust between
parents and schools, yet the proposed changes would only cause
an already unbalanced conflict resolution system to be weighted
more heavily against parents -- further eroding what little
trust parents have for the system.
On April 9, 2003, Rep. John Boehner (R- OH), Chairman of the
House Education & the Workforce Committee, published a document
entitled ”The Improving Education Results for Children with
Disabilities Act: Separating Fact from Fiction.” In this
document he states“…The changes in the complaint process
proposed in H.R. 1350 are designed to improve communication,
restore trust, and strengthen cooperation between parents and
school personnel. By providing options such as binding
arbitration, parents and schools will have new opportunities to
address problems without fear of costly litigation…The one-year
statute of limitations proposed in H.R. 1350 is a protection for
both parents and schools that will help ensure the timely
resolution of complaints. Reforms to the complaint process will
help restore trust and allow teachers to feel confident that
they can teach without fear of frivolous litigation that could
jeopardize educational opportunities for other children with
disabilities.
It is disingenuous at best to claim that the changes proposed to
the due process protections in H.R. 1350 are beneficial to
parents and students.
· Voluntary binding arbitration as proposed in H.R. 1350 does
not provide any benefits to parents that are not available in a
due process hearing and merely takes away the parent’s rights to
appeal.
· One-year statute of limitations would limit parents’ ability
to bring claims about problems that occurred more than a year
ago. This forces parents to proceed to hearing rather than
negotiating, for fear of missing the time deadline. This
provision most hurts vulnerable families – those that don’t
execute their rights quickly because they are less literate, are
less aware of their rights, have poor English skills, etc.
· The cap on rates for attorney fees will only make attorneys
less available to parents and the cap does not apply to the
amount that school districts may pay their own lawyers -- who
are also paid with public funds. Under current law, school
districts only have to pay parents’ attorneys fees when the
parent wins the case against the district. The proposed rate
caps would also only apply to parents who win their case against
the school district. Also, there are no standards available to
make sure that rates are set high enough so that attorneys are
truly available to families. As wealthy families will be able to
pay for their own lawyers, this provision again only hurts the
most vulnerable of parents and children.
· H.R. 1350 would permit state governors to set rates for
parents’ attorneys fees. As states are themselves sometimes sued
by families, governors will have every incentive to set these
rates very low. In what other area of the law does the defendant
decide how much to pay the plaintiff’s attorney?
· H.R. 1350 proposes other changes to the conflict resolution
system that will make it more difficult for parents to resolve
problems with their child’s educational program: such as a new
meeting they must attend, and a 30-day waiting period that must
expire before cases may go to hearing.
From the perspective of an individual child’s parents, who are
trying desperately to resolve a problem with the school
district, H.R. 1350 requires the family to wait longer and jump
through more hoops before the case may go to a due process
hearing. Then it reduces the number of attorneys available to
the family, but not to their opponent -- thus forcing these
parents to prepare for and attend the hearing and any other
meetings or mediation sessions alone, and provides the confusing
“option” of arbitration, among other barriers. It is
inconceivable that these changes would result in “restor[ing]
trust between parents and school districts”
3. Reduces the paperwork burden
It is claimed that H.R. 1350 will streamline the IDEA system and
free up more time for student related activities. In actuality,
it will create new systems and more meetings. New systems and
meetings will have to be recorded, funded and staffed, creating
additional paperwork and bureaucracy. This change will create
confusion, which will lead inevitably to more district/parent
conflict. For example:
· The law would require a meeting during a 30-day waiting period
before a case may proceed to due process. Districts will have to
document the meeting and any attempts they made to resolve the
problem. This will create new paperwork and a new meeting for
staff to attend.
· Voluntary Binding Arbitration: This creates a new system of
arbitrators that will need to be set up, funded, trained and
administered. This also adds a new burden for the state because
the state will have to monitor any system that is set up and in
some cases will have to set up and administer this system.
· The changes proposed in H.R. 1350 are sweeping and it will
take a great deal of time and energy to train staff sufficiently
for the system to work as it is envisioned. Just as one example,
the multi year IEP makes the system more complicated as there
are now two kinds of IEPs and two sets of requirements to
remember and adhere to legally. Mistakes will inevitably be
made, resulting in harm to children and increased conflict.
4. Reduce Litigation
H.R. 1350 will not reduce litigation because it will create new
ambiguities in the law which will take us back 25 years or more,
and open up issues long since laid to rest.
After 25 years of implementation, what litigation there has
been[2] has resulted in a certain degree of clarity in the law.
The dramatic changes proposed in H.R. 1350 will result in the
re-litigation of many issues to interpret the new requirements.
To name a few:
· In the past 25 years, virtually every circuit has struggled
with the definition of “appropriateness,” within the requirement
of a Free Appropriate Public Education (FAPE). Now the Davis
amendment will open up that definition to litigation all over
again
· If the parent submits a notice requesting a due process
hearing that does not, in the district’s opinion, conform to the
statutory requirements, this problem would be resolved at a due
process hearing, requiring an additional hearing or ruling by
the hearing officer prior to the hearing on the merits of the
case.
· IDEA was designed in recognition of Constitutional violations
existing at that time, after extensive litigation (e.g. the PARC
and Mills cases). Some of the changes proposed in H.R. 1350 are
so draconian they may open up litigation all over again. For
example, disciplining a child for behaviors related to that
child’s disability will likely engender Constitutional
challenges.
In addition, if the state education agency enforced hearing
decisions, mediation agreements and arbitration decisions,
rather than requiring the parent to go to court when a district
refused to comply with an order or agreement, a great deal of
litigation could be avoided.
5. Greater flexibility for local school districts to improve
early intervention strategies
Actually, right now local school districts have the ultimate
discretion to design early intervention programs that meet their
needs, including programs that serve non-IDEA eligible students.
The only change that H.R. 1350 makes is the opportunity for
districts to fund programs for non-IDEA eligible students using
IDEA funds. Using IDEA funds for this purpose will only bind
school districts with the red tape that is an inevitable result
of federal assistance, as well as draining funds that are
already insufficient to meet the needs of IDEA eligible
students.
Conclusion
Contrary to its stated intent, HR 1350 will not improve the
quality of education for students with disabilities, will not
improve the relationship between parents and schools, nor will
it increase parent participation in helping to create the best
educational plan for their children. It will not improve the
level of trust between parents and school, if anything it will
create more tension between them, nor will it reduce the amount
of paperwork that school staff must complete. Most importantly,
it undermines the spirit and intent of the IDEA.
Contact: Robert Berlow, COPAA, (301) 912-2281
Diane Smith, NAPAS, (202) 408-9514
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[1] This data comes from the OSEP Annual Report to Congress,
1999-2000, and includes only students aged 3-21 in the 10 states
with the highest number of IDEA eligible students that year (CA,
FL, IL, MI, NJ, NY,NC, OH, PA, TX). It is probably a low
estimate as the total number of IDEA eligible students has
tended to increase over time and because this count does not
include children aged Birth – 2.
[2] There is little frivolous litigation under the IDEA. In
fact, there is little litigation under the IDEA at all. Few due
process hearings are requested each year (approx. .16 % of the
total number of Part B students in 1998 requested a hearing1).
Fewer still actually proceed to hearing (approx. .054 % of the
total number of Part B students in 1998) and an even smaller
number proceed through the administrative process to court. This
works out to about 1 in 622 students who request a hearing and 1
out of 1844 whose cases actually proceed to hearing. This
percentage is based on 1998 numbers, as this is the most recent
data available publicly. These figures utilize the total number
of students in Part B during that period and the total number of
hearings requested and held, as reported to the National
Association of State Directors of Special Education
(NASDSE). Therefore this does not
account for cases in which parties file more than one hearing
request and the reporting periods re: hearings and total student
data may not correspond precisely.
|
