Analysis of SB 1248
Disability Rights Education and Defense Fund, Inc. (DREDF)
News Briefing #33, April 1, 2004
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SENATE BILL 1248: The bill could come to the Senate floor at any
time; the latest dates under discussion are April 7 or April 8.
If the bill passes the Senate, it will go to conference where it
will have to be reconciled with the House bill, H 1350.
ABOUT S. 1248: DREDF believes S. 1248 makes several improvements
to IDEA that will result in students with disabilities meeting
higher standards and achieving greater educational results.
* POSITIVE BEHAVIOR SUPPORTS: The bill takes pro-active steps so
that students receive the supports they need to manage their
behavior. The bill also provides funding to schools to expand
behavior supports and whole school behavior interventions.
* ALTERNATE ASSESSMENTS: The bill successfully addresses the
need for states to increase research and development in the area
of alternate assessments by creating Section 662(b)(3).
* SCHOOL TO LIFE TRANSITION: The bill includes several
provisions to increase the success of special education students
when they transition from school to the rest of their lives.
Specific requirements are added to the Rehabilitation Act, and
the bill strengthens the transition provisions of the
Individualized Education Plan (IEP).
* PERSONNEL: The bill applies the "highly qualified" provisions
of No Child Left Behind to special education teachers. It
strengthens and expands personnel preparation and personnel
development authorities for both special education personnel and
Despite these improvements, the bill contains several dangerous
provisions that weaken the rights of students with disabilities.
These provisions include:
* ELIMINATING SHORT-TERM OBJECTIVES: The bill removes short-term
objectives from a child's Individualized Education Plan (IEP)
and replaces them with a statement of the child's progress
toward annual goals in the form of quarterly reports. This
change will make it more difficult for parents and schools to
measure student progress. Moreover, this provision may actually
increase the paperwork requirements of IDEA. The bill should
require instructional objectives in IEPs.
* LIMITATIONS ON DUE PROCESS PROTECTIONS: The bill limits due
process protections for students with disabilities.
Specifically, the bill requires parents to present due process
claims at an "opportunity to cure" IEP meeting that can be used
to coerce parents into giving up their children's due process
rights (especially as parents' attorneys cannot be reimbursed
for participation in the meetings). This provision is
unnecessary, because current law already gives districts
opportunities to resolve problems prior to a due process
* The bill also establishes a STATUTE OF LIMITATIONS that limits
the amount of time parents have for filing a due process hearing
request or for appealing a due process decision. This provision
will leave those children who have experienced the most
egregious and long-standing denials of FAPE without a remedy.
For example, 90 days (or less if the state so chooses) for
parents to file an action in court at the conclusion of
administrative proceedings is woefully insufficient for
unrepresented parents. The Senate bill also allows states to set
their own statutes of limitations, and these can be shorter than
the limits provided in the bill.
* MONITORING AND ENFORCEMENT: Among the most important issues to
parents and disability advocates are the effective
implementation and enforcement of IDEA. While the Senate bill
makes some improvements in these areas, it leaves too many major
decisions to the U.S. Department of Education. For example, the
bill does not define what constitutes substantial
non-compliance, nor does it standardize specific benchmarks from
state to state. The bill does not include Part C in the
monitoring and enforcement activities.
* RESEARCH ADMINISTRATION: The bill redirects the research
function from the Office of Special Education Programs to the
Institute for Education Science (IES). IES has no track record
in special education research. Moreover, this move increases the
disconnect between research and practice and seriously
jeopardizes research on the needs of children with significant
disabilities and low incidence disabilities.
* PERSONNEL STANDARDS: The "highly qualified" definition for
special education teachers needs clarification to ensure that
all teachers new to the profession are trained in state-approved
special education preparation programs. In addition, an
appropriate definition of "highly qualified" for related
services personnel should be included in S. 1248.
* FUNDING: Parents and disability advocates support mandatory
full funding of IDEA. However, we oppose the provisions in S.
1248 that enable local education agencies to funnel IDEA funds
to non-IDEA activities when states have never effectively met
their obligations to students with disabilities. It is past time
for Congress to fund this law.
AMENDMENTS TO WATCH OUT FOR: Beware of amendments introduced on
the Senate floor. Two key issues not in the Senate bill as it
was reported out of the HELP Committee will likely surface as
* Attorneys' Fees: The Senate bill does not currently cap the
amount of fees a court may award parents who prevail in due
process proceedings nor does it allow the State (which is
sometimes a defendant in these actions) to determine the rate
that parents' attorneys are paid, whereas the House bill
contains these dangerous provisions.
* Paperwork Waiver: The Senate bill does not currently include a
pilot program included in the House bill that would allow states
to waive any IDEA requirement that might result in a real or
perceived paperwork burden.
ON PAPERWORK REDUCTION: We are sensitive to the burdens
paperwork places on teachers, but we urge great care in any
effort to reduce paperwork; essential rights and protections for
children must not be compromised. These rights and protections
include tracking school accountability for special education
service delivery, adequate documentation of student learning,
and clear communication between parents, teachers, and
administrators so that all concerned understand a child's needs,
agree upon goals, and agree to the means for achieving goals.
One way to reduce paperwork and streamline procedures is to
computerize Individual Education Plan (IEP) forms and
standardize reporting and accountability. Some states, including
New York ("IEP direct"-
www.iepdirect.com) and South Carolina ("Excent" -
www.excent.com) are already
using these systems to assist teachers and school personnel to
manage IEP development and data recording. Any effort to reduce
or waive existing requirements for documentation and data
collection must take into account:
* Effectively measuring and reporting EACH child's progress in
order to successfully implement an IEP
* Adequately documenting IEP team decisions to protect the
student's right to full access to educational experiences in the
least restrictive environment
* Requiring sufficient data to enable PARENTS and schools to
track educational outcomes for students with disabilities in a
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