[House Report 105-649]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-649
_______________________________________________________________________


 
                 IDEA TECHNICAL AMENDMENTS ACT OF 1998

                                _______
                                

 July 24, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. Goodling, from the Committee on Education and the Workforce, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3254]

      [Including cost estimate of the Congressional Budget Office]

      The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 3254) to amend the Individuals with 
Disabilities Education Act to clarify the requirements relating 
to reducing or withholding payments to States under that Act, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``IDEA Technical Amendments Act of 
1998''.

SEC. 2. REDUCTION OR WITHHOLDING OF PAYMENTS TO STATES.

  Section 616(c) of the Individuals with Disabilities Education Act (20 
U.S.C. 1416(c)) is amended--
          (1) by striking ``For purposes of this section'' and 
        inserting ``(1) Notwithstanding subsections (a) and (b)''; and
          (2) by striking ``the Secretary, in instances'' and all that 
        follows and inserting the following: ``the Secretary, in 
        instances where the Secretary finds that the failure to comply 
        substantially with the provisions of this part are related to a 
        failure by the public agency during a fiscal year to provide 
        special education and related services to individuals who are 
        18 years of age or older, and the Secretary decides to take 
        corrective action to ensure compliance with this part, may take 
        only the following such corrective action (and such corrective 
        action may only be taken with respect to payments for that 
        fiscal year):
          ``(A) Reduce or withhold payments to the State in an amount 
        that is proportionate to the total funds allotted under section 
        611 to the State as the number of such individuals who are 18 
        years of age or older is proportionate to the number of 
        eligible individuals with disabilities in the State under the 
        supervision of the State educational agency.
          ``(B) Ensure that any withholding of funds under paragraph 
        (1) shall be limited to the specific agency responsible for the 
        failure to comply with this part.
  ``(2) Upon reduction or withholding of payments to a State for a 
fiscal year under paragraph (1)--
          ``(A) with respect to children with disabilities who are 
        convicted as adults under State law and incarcerated in adult 
        prisons, the State shall be deemed to be in compliance with 
        this part for that fiscal year; and
          ``(B) no additional corrective action may be taken against 
        the State with respect to the failure by the public agency 
        described in paragraph (1).
  ``(3) For purposes of paragraph (1)(A), the number of eligible 
children with disabilities in adult prisons under the supervision of 
the other public agency and the number of eligible individuals with 
disabilities in the State under the supervision of the State 
educational agency shall be determined by the Secretary on the basis of 
the most recent satisfactory data available to the Secretary.''.

                                Purpose

    The purpose of H.R. 3254 is to clarify the requirements of 
the Individuals with Disabilities Education Act (IDEA) relating 
to Federal enforcement actions that may be taken against States 
that do not provide IDEA services to adult prisoners who are 
between the ages of 18 and 21.

                            Committee Action

                         Hearings and Testimony

    The Subcommittee on Early Childhood, Youth, and Families 
held a hearing on the authorization of the IDEA on February 6, 
1997. The second panel of witnesses at this hearing focused 
specifically on the issue of serving individuals with 
disabilities who are in prisons. Testifying on this panel were: 
Gregory W. Harding, Chief Deputy Director for Support Services, 
Department of Corrections, Sacramento, CA and Dr. Steven 
Steurer, Executive Director, Correctional Education 
Association, Lanham, MD.

     Introduction of the IDEA Technical Amendments Act of 1998 and 
                           Legislative Action

    H.R. 3254, the IDEA Technical Amendments of 1998, was 
introduced on February 24, 1998 by Chairman Frank Riggs (R-CA) 
and reported out of the Subcommittee on Early Childhood, Youth 
and Families by voice vote on May 21, 1998 with no amendments. 
The full Committee on Education and the Workforce met to 
consider H.R. 3254, the IDEA Technical Amendments of 1998, on 
Thursday, June 4, 1998. H.R. 3254 was ordered reported by a 
vote of 23 to 18 with amendments.

                                Summary

    In reporting H.R. 3254, the IDEA Technical Amendments of 
1998, the Committee amends the provisions of the IDEA to 
clarify the requirements relating to reducing or withholding 
payments to States under that Act. H.R 3254 amends section 616 
of the IDEA to confirm that the only action the Secretary of 
Education may take against a State that does not provide IDEA 
services to 18-21 year old prison inmates is a proportionate 
withholding or reduction in Federal IDEA funds.

                            Committee Views

    The Individuals with Disabilities Education Act Amendments 
of 1997 (P.L. 105-17) significantly changed the requirements 
for providing IDEA services to adult prisoners. Prior to P.L. 
105-17, the extent to which the requirements of the IDEA 
applied to individuals with disabilities who are in prison was 
unclear. Moreover, the Department of Education, through a 
combination of regulations, policy interpretations, and 
enforcement activities placed increasingly unreasonable 
mandates on States for providing special education services to 
individuals with disabilities in adult prisons.
    P.L. 105-17 intended to address the ambiguity of the law 
and to curb the Department's inappropriate enforcement 
activities. Specifically, P.L. 105-17 identified the situations 
where the requirements of the IDEA did not apply to individuals 
who were incarcerated in adult prisons, such as assessment 
requirements and the procedural requirements for changing 
placements and provisions in the Individualized Education 
Program (IEP). Moreover, P.L. 105-17 allowed States to shift 
responsibility for the adult prisoners under the IDEA from the 
State Education Agency (SEA) to another agency, such as the 
Department of Corrections.
    The most significant change in P.L. 105-17 regarding IDEA 
services to adult prisoners, however, was the limitations to 
the Secretary's enforcement authority under section 616 of the 
IDEA in those cases where responsibility for IDEA services for 
prisoners had been transferred to an agency other than the SEA. 
This change made an exception to the Secretary's enforcement 
authority in cases when a designated State agency does not 
provide services to individuals in the adult prison system. 
This exception limits reductions and withholding of funds to 
the specific State agency. Any reduction must be made in a 
manner that is proportionate to the number of IDEA-eligible 
individuals that the agency is responsible for, relative to the 
total number of children with disabilities in the State. Thus, 
if a State does not provide IDEA services to adult prisoners, 
the State agency responsible for the prisoners would forfeit 
any Federal IDEA funding, but this would not affect the Federal 
IDEA funding for the State's SEA.
    The intent and effect of these changes is clear from the 
examination of the legislative history. During consideration of 
P.L. 105-17 on the Floor of the House of Representatives, Mr. 
Riggs (R-CA) stated:

          This bill also allows States, at their discretion, to 
        deny services for adult prisoners while forfeiting only 
        the pro rata share of Federal funding for that small 
        segment of the total IDEA-eligible population.
          So if this bill becomes law and California decides to 
        deny services to adult prison inmates, the U.S. 
        Department of Education can only reduce California's 
        total Federal allocation by a small percentage instead 
        of withholding the entire allocation, as the department 
        is currently threatening to do.

During consideration of P.L. 105-17 on the Floor of the Senate 
on May 13, 1997, Senator Harkin (D-IA) engaged in the following 
colloquy with Senator Boxer (D-CA):

          Mrs. BOXER. It is my understanding that under this 
        bill, if California does not provide special education 
        in prisons it stands to lose only one-fourth of 1 
        percent of its allocated share. California would no 
        longer face the possible loss of 100 percent of its 
        allotted special education funds. I would ask the 
        Senator from Iowa, is my understanding correct?
          Mr. HARKIN. The Senator is correct that any 
        withholding of Federal funds will be limited to the 
        proportional share attributable to disabled students in 
        adult prisons. Other funds would not be withheld.

    Despite last year's significant changes and the clear 
legislative history on the intent of this legislation, the 
Department of Education continues to aggressively assert that 
the statute does not limit the range of enforcement actions 
that the Secretary of Education may take against a State. The 
Committee notes that the Administration was a full participant 
in the negotiations on the 1997 Amendments and Department 
officials knew full well that the intent of the legislation was 
to make an exception to the Department's enforcement powers 
regarding adult prisons. However, in a letter to Mr. Riggs (R-
CA) dated May 19, 1998, Judith Heumann, Assistant Secretary for 
Special Education and Rehabilitative Services, defended the 
Department's inclusion of unrestricted enforcement authority in 
the proposed regulations implementing the statute:

          The proposed regulation also recognized that the 
        Secretary has various enforcement options and the 
        discretion of which option to use to ensure full 
        compliance. This position is based, in part, upon our 
        long-standing interpretation of section 454 of (sic) 
        General Education Provisions Act (20 U.S.C. 
        Sec. 1234c). This is not a departure from statutory 
        language or the Department's long-standing 
        interpretation of its enforcement options.

    The aggressive campaign that the Department of Education 
continues to wage against the State of California, which has 
the Nation's largest prison population, provides the strongest 
basis for why Congress needs to further clarify these 
provisions. Since 1995, the Department of Education has 
threatened to take a variety of enforcement actions against the 
State of California in an effort to compel it to direct limited 
State special education funds away from children with 
disabilities in the State's school system to violent criminals 
who are in adult prisons and eligible for IDEA services.
    The Governor of California and the State legislature, in 
contrast, have decided that the State, which already spends 
over $3,500 per inmate on educational services, should direct 
increases in State special education funds on children with 
disabilities in the K-12 school system rather than on adult 
felons in the prison system. State officials believe that the 
current educational services provided to prisoners are 
appropriate. In their view, accepting Federal IDEA funds and 
agreeing to provide the full range of services under the IDEA 
for adult inmates would require significant increases in State 
funding and staff resources, would increase the opportunity for 
inmates to file frivolous lawsuits against prison officials 
(which currently average 5 per day), and would unduly limit the 
State's discretion and authority in determining the extent of 
services provided to inmates.
    During the last 3 years, the Department of Education has 
threatened to withhold all Federal IDEA funding for the nearly 
half-million children with disabilities served by the IDEA in 
California in an effort to compel California to change its 
policy. It has also threatened to refer the case to the 
Department of Justice in order to seek a court injunction or 
other legal action. Despite the changes made in P.L. 105-17, it 
is apparent that the Department of Education refuses to 
recognize any limits on the Secretary's authority. Secretary of 
Education Riley in a letter to Governor Pete Wilson of 
California dated September 4, 1997 stated, ``Nothing in the 
IDEA requires that I use withholding as a means of enforcement 
if I believe that it is not the appropriate action to obtain 
compliance.'' In response to the Secretary's assertions, 
Governor Wilson in a letter to Chairman Goodling (R-PA) 
concluded:

          We are at a stand-off and the Department has made it 
        clear it will use every power to compel special 
        education benefits for these adult felons--over the 
        bipartisan objections of the California Legislature and 
        at the expense of law-abiding school children who need 
        these same services.

    The Committee believes that the Federal government should 
not have the ability to mandate that States serve convicted 
adult felons at the expense of children with disabilities in 
the school system. P.L. 105-17 already contains inducements for 
serving the prison population and establishes specific 
financial consequences if that population is not provided IDEA 
services. In the case of services for adult prison inmates, 
which was clearly identified as an exception in section 616 of 
the IDEA, the Secretary should not be permitted to take actions 
that are clearly beyond what is reasonable based on the nature 
and the degree of the State's noncompliance.
    The Committee also believes that the Federal government 
should support State efforts to improve the educational 
outcomes for children with disabilities, rather than thwarting 
these efforts with Federal mandates that would pull funds away 
from children and substantially increase State costs. The 
Committee believes that the Federal government should support 
States in exercising their discretion to focus their resources 
and efforts on serving children with disabilities in the school 
system.
    H.R. 3254 prevents the Department of Education from further 
undermining the consensus reached last year through the 
continued use of inappropriate, heavy-handed tactics to coerce 
States. The bill only affects adult inmates (ages 18-21) in the 
adult prison system, and would not affect services to 
individuals in the juvenile justice system. In the case of 
California, for example, over 20 percent of the youthful 
offenders who are wards of the California Youth Authority 
currently receive IDEA services. These youths would continue to 
receive these services and would not be affected by this 
legislation. This age range was included in the amendment in 
the nature of a substitute offered by Mr. Riggs (R-CA) at the 
Full Committee.
    Moreover, the bill would do nothing to jeopardize or weaken 
the Department of Education's ability to protect children. It 
only clarifies the intent of P.L. 105-17 by making it explicit 
that the Department of Education cannot use all of the 
enforcement tools that it has been given in order to protect 
the rights of children to advocate for services to adult prison 
inmates.

                      Section-by-Section Analysis

    Section 1 gives the short title of the Act as the ``IDEA 
Technical Amendments Act of 1998''.
    Section 2 amends section 616(c) of the Individuals with 
Disabilities Education Act to confirm that the Secretary may 
only reduce or withhold payments to the State in an amount 
thatis proportionate to the total funds allotted under section 611 of 
the Act to the State as the number of eligible children with 
disabilities in adult prisons under the supervision of the other public 
agency; clarifies that this reduction shall be made on the basis of the 
most recent satisfactory data available to the Secretary; and upon 
forfeiture of funds, considers the State to be in compliance with this 
part for that fiscal year and does not allow any additional corrective 
action to be taken against the State for not serving individuals 
incarcerated in adult prisons.

                       Explanation of Amendments

    The Amendment in the Nature of a Substitute is explained in 
the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. This bill clarifies the requirements of the Individuals 
with Disabilities Education Act (IDEA) relating to Federal 
enforcement actions that may be taken against States that do 
not provide IDEA services to adult prisoners who are between 
the ages of 18 and 21. The bill does not prevent legislative 
branch employees from receiving the benefits of this 
legislation.

                   Constitutional Authority Statement

    The provisions of the Individuals with Disabilities 
Education Act and the amendments thereto made by this bill are 
within Congress's authority under the spending clause of the 
Constitution, Article I, section 8, clause 1.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act requires a statement of whether the provisions of 
the reported bill include unfunded mandates. This bill 
clarifies the requirements of the Individuals with Disabilities 
Education Act (IDEA) relating to Federal enforcement actions 
that may be taken against States that do not provide IDEA 
services to adult prisoners who are between the ages of 18 and 
21. As such, the bill does not contain any unfunded mandates.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 2(l)(3)(A) of rule XI and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

 Statement of Oversight Findings of the Committee on Government Reform 
                             and Oversight

    With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 3254.

                           Committee Estimate

    Clause 7 of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 3254. However, clause 7(d) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 2(l)(3)(B) of 
rule XI of the House of Representatives and section 308(a) of 
the Congressional Budget Act of 1974 and with respect to 
requirements of 2(l)(3)(C) of rule XI of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for H.R. 3254 from the Director of the Congressional Budget 
Act:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 12, 1998.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
U.S. House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3254, the IDEA 
Technical Amendments Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Justin Latus.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 3254--IDEA Technical Amendments Act of 1998

    CBO estimates that enacting this bill would have no 
significant effect on the federal budget. Because the bill 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply. H.R. 3254 contains no 
intergovernmental of private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 and would impose no costs 
on state, local, or tribal governments.
    H.R. 3254 would clarify the penalty on states that do not 
provide educational services to children with disabilities who 
are in adult prisons. Under current law, these states would 
lose the federal funding that would normally pay for educating 
these children and could face additional action (including 
legal action) from the Department of Education. This bill would 
limit the penalty on states that do not provide these 
educational services to the loss of funding for those not 
served. CBO estimates that this bill would have no impact on 
the federal budget.
    The CBO staff contact for this estimate is Justin Latus. 
The estimate was approved by Paul N. Van de Water, Assistant 
Director for Budget Analysis.





                         Committee Submissions

                                     Sacramento, CA, July 24, 1997.
Hon. Richard W. Riley,
Secretary, Department of Education,
Washington, DC.
    Dear Mr. Secretary: California hereby rejects the condition 
which one of your Department subordinates has improperly sought 
to impose upon California's acceptance of the full $306 million 
federal grant award provided for the Federal Fiscal year 1997 
pursuant to the Individuals with Disabilities Education Act 
(IDEA) Amendments of 1997. That condition, placed in a cover 
letter but not in the grant award notification, provided that 
``[a]cceptance by California of this grant award constitutes an 
agreement by the State'' to make a free public education 
available to disabled felons over the age of 18 incarcerated in 
adult correctional facilities, which would divert precious 
funds from law-abiding children to adult convicts.
    Because that condition reflects a dramatic 
misinterpretation of the new IDEA law. California rejects the 
condition and accepts the full grant in accordance with the 
terms of the grant award notification, minus the amount 
permitted under IDEA to be deducted when a state chooses not to 
divert special education services to convicted felons in state 
prison.
    Specifically, the new IDEA law gives states the right under 
IDEA not to divert special education services to individuals 
``convicted as adults under State law and incarcerated in adult 
prisons'' by limiting ``any reduction or withholding of 
payments to the State'' to the proportion of the grant equal to 
the percentage of the number of eligible individuals in adult 
prisons divided by the entire IDEA-eligible population. See 
Sec. Sec. 612(a)(11)(C): 616(c). Indeed, the Act stresses in a 
separate section that ``any withholding of funds * * * shall be 
limited to the specific agency responsible'' for the decision 
not to provide such services to felons in adult correctional 
facilities.
    Notwithstanding the plain wording and legislative intent of 
the IDEA law, Assistant Secretary Judith Heumann in a July 16, 
1997, letter threatened California with the loss of its entire 
federal grant unless California agreed to divert special 
education services to convicted felons incarcerated in state 
prisons. That letter followed a June 30, 1997, letter from Ms. 
Heumann to California's Department of Corrections (CDC) 
asserting that, far from the exclusive remedy Congress 
specified for states electing to not provide such services, the 
Department ``has a number of enforcement options to address a 
substantial failure to comply with the requirements of the IDEA 
related to eligible youths with disabilities who are convicted 
as adults and incarcerated in adult prisons. * * *''
    Ms. Heumann's demand subverts the plain meaning of the new 
IDEA law and is contrary to the legislative history surrounding 
the Act's enactment. Representative Bill Goodling, Chairman of 
the Committee on Education and the Workforce, which reported 
the IDEA reauthorization bill, wrote that the statute ``ensures 
that California would lose only a small share of its entire 
$300 million Federal allotment for special education if it 
decides not to provide services for adult prison inmates.'' 
Speaker Gingrich similarly recognized California's ability 
under the Amendments ``to deny services for adult prisoners 
while forfeiting only the pro-rata share of federal funding for 
that small segment of the total IDEA-eligible population.''
    The sentiment expressed in the Senate was to the same tune. 
In a colloquy with Senators Harkin and Jeffords. Senator Boxer 
expressed the view that ``if California does not provide 
special education services in prisons it stands to lose only 
one-fourth of 1 percent of its allotted share [and] would no 
longer face the possible loss of its allotted special education 
funds.'' Senators Harkin and Jeffords expressed their 
unqualified agreement with that interpretation of the 
Amendments. Cong. Rec. S4375-76 (May 13, 1997).
    This legislative intent will be determinative in 
interpreting the legislation, as it will dispositively outweigh 
any competing interpretation subsequently given by your 
Department, See Chevron v. Natural Resources Defense Council, 
467 U.S. 837, 843 n.9 (1984) (the judiciary ``must reject 
administrative constructions which are contrary to clear 
congressional intent.'').
    Ms. Heumann attempts to buttress her threat of a total loss 
of California's federal grant on a second, equally spurious 
theory: that proportionate withholding is unavailable since the 
California Department of Education is also responsible for this 
decision as it ``retains responsibility under that section for 
any eligible youth with disabilities in such facilities who 
were not convicted as adults.'' Ms. Heumann is misinformed. 
There are no youths incarcerated under the jurisdiction of CDC 
who have not been convicted as adults.
    Because Congress's recent IDEA legislation made crystal 
clear that the decision not to divert precious special 
education funds to convicted felons does not jeopardize the 
entire grant, I regard Ms. Heumann's attempt to condition 
federal funding to California on this unlawful basis as out-
and-out extortion.
    Before concluding, allow me to offer the observation that 
there may be certain individuals within your agency zealous to 
impose their extralegal agenda upon the country. Congress's 
recent passage of the IDEA reauthorization bill responded to 
efforts by the Department to require that special education 
funds be diverted from law-abiding children to incarcerated 
felons in states' prisons. The new law must be respected by the 
Department. This present episode closely follows an aborted 
effort, now reversed, by the Department to coerce schools in 
Texas not to comply with the Fifth Circuit Court of Appeals' 
decision in Hopewood v. Texas, 78 F.3d 932 (5th Cir.), cert. 
denied, 116 S. Ct. 2580 (1996). It is not within the powers of 
any agency official to subvert the will of Congress or the 
courts. Actions like those taken by Ms. Heumann show a deep 
disrespect for the rule of law.
    Should the Department attempt to recoup the entirety of the 
$306 million federal funding grant to California which supports 
more than 48,000 disabled children, the Department will force 
California to divert limited public resources from existing 
education reforms, such as class size reduction and pupil 
testing, in order to backfill the loss of federal special 
education funds. I, therefore, hope you will respect CDC's 
decision under the IDEA law to return unspent exactly that 
portion of the 1997 grant that Congress has specified as the 
remedy for states opting not to spend scarce resources to 
provide special education services to convicted felons in state 
prisons.
    Californians will perform an accounting to determine the 
precise figure and remit this amount to the federal 
government--a reasonable decision in light of the fact that the 
actual cost of diverting services to convicted felons 
overwhelmingly exceeds the proportionate reduction.
            Sincerely,
                                             Pete Wilson, Governor.
                                ------                                

                                   Department of Education,
                                 Washington, DC, September 4, 1997.
Hon. Pete Wilson,
Governor of California,
State Capitol, Sacramento, CA.
    Dear Governor Wilson: This is in response to your letter of 
July 24, 1997, expressing concern about the condition placed on 
California's federal grant under Part B of the Individuals with 
Disabilities Education Act (IDEA). I hope this also addresses 
the issues raised in your April 18, 1997, letter regarding 
promulgation of new IDEA regulations on special education 
services for youth with disabilities in adult correctional 
facilities.
    Regarding the grant award condition, Assistant Secretary 
Judith E. Heumann's letter of July 16, 1997, was entirely 
appropriate. This Department's responsibility is to enforce the 
requirements of the IDEA, while ensuring continued funding for 
special education services for all eligible children and youth 
with disabilities in California. The IDEA Amendments of 1997, 
which passed Congress by large majorities of Republicans and 
Democrats, made it clear that all States must serve eligible 
youth with disabilities in adult correctional facilities. There 
are no provisions in the law that allow a State to elect to 
exclude all youth in adult facilities. As a result, as a 
condition of your IDEA grant, you do not have the option of 
rejecting the provision of these services. This requirement is 
imposed by the statute, not by the Department of Education. The 
specific condition that the Department imposed upon 
California's grant was a reporting requirement regarding 
efforts made to serve this population. This condition was 
imposed based upon California's history of noncompliance on 
this issue.
    I would also like to correct what appears to be a serious 
misunderstanding of the enforcement provisions of the IDEA. The 
new law directs me to take ``pro corrective action to ensure 
compliance'' when there is a failure to provide required 
services to eligible youth with disabilities in adult 
correctional facilities. It also provides that if I choose to 
withhold funds from a State in these circumstances, the amount 
of that withholding is limited to the portion of the IDEA funds 
that represents the percentage of eligible children and youth 
with disabilities in the State who are convicted as adults and 
are in adult correctional facilities. Nothing in the IDEA 
requires that I use withholding as a means of enforcement if I 
believe that it is not the appropriate action to obtain 
compliance. Both the IDEA and the General Education Provisions 
Act set out a number of options for obtaining corrective action 
under Department programs. These options include, in addition 
to withholding funds, referring the matter to the Department of 
Justice for injunctive relief, obtaining a cease and desist 
order, and entering into a compliance agreement. I have not yet 
made a decision as to the corrective action that is most 
appropriate in this case.
    Since February 1996, when we issued a monitoring report to 
the State citing its failure to make any special education 
services available in any of the State's adult prisons, we have 
attempted to work with the State to ensure compliance with the 
requirements of federal law. Our efforts to resolve this issue 
cooperatively included offering the State a compliance 
agreement, under which it would have up to three years to come 
into compliance. It is still my strong preference to work with 
the State to enter into a compliance agreement. I am asking 
Assistant Secretary Heumann to provide you information on the 
assistance that would be available from the Department in 
working toward the development of a compliance agreement.
    It is my sincere belief that the numerous changes to IDEA 
that allow States more flexibility in serving incarcerated 
youth, which the Department supported, should make possible the 
development of such an agreement. For example, States need only 
make available special education services to youth with 
disabilities, aged 18 through 21, who, in the educational 
placement prior to their incarceration in an adult correctional 
facility: (a) were actually identified as being a child with a 
disability under the IDEA; or (b) had an individualized 
education program under the IDEA. The new law also provides 
that youth with disabilities who are convicted as adults and in 
adult prisons need not participate in general testing programs 
conducted by the State, and that transition services to promote 
movement from school to employment and other post-school 
activities need not be provided to individuals in adult prisons 
whose eligibility under the IDEA will have ended because of 
their age before they are released from prison.
    Most importantly, the educational program and placement of 
eligible youth with disabilities who are convicted as adults 
and in adult prisons can be modified if the State shows bona 
fide security interests. This provision allows these interests 
to be addressed on a case-by-case basis and in extreme 
circumstances, such as when a youth with disabilities poses an 
immediate threat to self or others, permits appropriate 
modifications or limitations to the educational program or 
placement, including suspension of services for an appropriate 
period of time.
    In California, a majority of incarcerated youth ages 21 or 
younger are serving sentences of 4 years or less. These young 
people will be released back into society within a relatively 
short period of time. The majority of the studies that have 
looked at the benefits of prison education programs have shown 
that education has a positive effect on reducing recidivism and 
a positive effect on post-release employment success. Young 
prisoners with disabilities are among the least likely to have 
the skills they need to be able to hold a job. For them, 
education is probably the only opportunity they have to become 
productive, independent members of society.
    I continue to hope that it will be possible for us to 
resolve this matter in a manner that serves the educational 
interests of all children consistent with the requirements of 
the IDEA.
            Yours sincerely,
                                       Richard W. Riley, Secretary.
                                ------                                

                  Committee on Education and the Workforce,
                                  Washington, DC, January 30, 1998.
Hon. Richard Riley,
Secretary, Department of Education,
Washington, DC.
    Dear Mr. Secretary: I am writing to express my continued 
concerns about how the Department of Education proposes to 
implement Public Law 105-17 with regard to providing special 
education services to children with disabilities who are 
incarcerated in adult prisons.
    The Department's proposed regulation 300.587(e) outlines 
the enforcement actions that the Secretary can take with 
respect to complying with part B of the Act for children with 
disabilities incarcerated in adult prisons when the public 
agency responsible for such children is not the State Education 
Agency. The Department has added language that allows the 
Secretary to take ``one of the enforcement actions described in 
paragraph (b) of this section'' (300.587). The enforcement 
actions described in 300.587(b) include withholding in whole or 
in part any further payments to the State under part B of the 
Act, referring the matter to the Department of Justice for 
enforcement, or any other enforcement action authorized by law.
    As a principal author of the IDEA Amendments of 1997, I am 
specifically concerned with the language in 300.587(e) that 
allows the Secretary to take enforcement action against the 
State, other than reducing or withholding payments that are 
proportionate to the total funds allotted to the State as the 
number of eligible children with disabilities in adult prisons 
under the supervision of a public agency other than the SEA. 
This is the only enforcement action authorized by the statute 
for the Secretary to take if the State does not provide part B 
services to children with disabilities incarcerated in adult 
prisons. The statute clearly provides this exception to the 
Secretary's general enforcement authority in section 616(c) of 
Public Law 105-17. The proposed regulation 300.587(b) violates 
that exception.
    As you know, this issue was vigorously debated during the 
consideration of the 1997 IDEA amendments. The legislative 
history, as well as the statutory language, clearly indicate 
that the only enforcement authority given to the Secretary if a 
State does not comply with part B for children with 
disabilities incarcerated in adult prisons is reducing or 
withholding payments that are proportionate to the total funds 
allotted to the State as the number of eligible children with 
disabilities in adult prisons under the supervision of a public 
agency other than the SEA. This is the only enforcement action 
available to the Secretary in these cases.
    I strongly urge you to delete the reference in the proposed 
regulation 300.587(e) that allows the Secretary numerous 
enforcement actions when States do not provide part B services 
to children with disabilities incarcerated in adult prisons. 
There is no basis in the statute or legislative history for 
this ill-advised regulatory language.
            Sincerely,
                                       Frank Riggs,
                            Chairman, Subcommittee on Early
                                     Childhood, Youth and Families.
                                ------                                

                  Committee on Education and the Workforce,
                                       Washington, DC, May 8, 1998.
Hon. Judith Heumann,
Assistant Secretary, Office of Special Education and Rehabilitative 
        Services, Department of Education, Washington, DC.
    Dear Ms. Heumann: As a principal author of the IDEA 
Amendments of 1997, I continue to be concerned about how the 
Department of Education proposes to implement Public Law 105-17 
with regard to providing special education services to inmates 
incarcerated in adult prisons.
    This issue was vigorously debated during the consideration 
of the 1997 IDEA amendments. The Administration knows full well 
that the new law clarifies how services are to be provided to 
individuals in adult prisons who have been tried and convicted 
as adults.
    The legislative history, as well as the statutory language, 
clearly indicates that a State may now delegate its obligation 
to oversee prison education to the prison system or the State 
adult correctional department. Standards relating to IDEA 
services, placement, and paperwork were relaxed to acknowledge 
the unique security requirements of the prison environment. 
States, at their discretion, may also deny services for adult 
prisoners while forfeiting only the pro rata share of Federal 
funding for that small segment of the total IDEA eligible 
population.
    The congressional intent is clear on this matter. There are 
statements that I made, statements that Chairman Goodling made, 
and even statements made in a colloquy between Senator Boxer 
and Senators Jeffords and Harkin which all contradict the 
Administration's proposed position.
    Despite the clear legislative history on this issue, the 
Department's proposed regulations have added language that 
allows the Secretary to take additional enforcement actions. 
These actions include withholding further payments to the State 
under part B of the Act, referring the matter to the Department 
of Justice for enforcement, or any other enforcement action 
authorized by law. This concerns me because the statute makes a 
clear exception to the Secretary's general enforcement 
authority in section 616(c) of Public Law 105-17.
    Simply put, section 300.587(b) of the proposed regulation 
violates the statute. There is no basis in the statute or 
legislative history for this ill-advised regulatory language. I 
strongly urge the Department to delete the reference in this 
section that allows the Secretary numerous enforcement actions 
in this case.
    As you know, this is an important issue to my home state of 
California. If California decides to deny services to adult 
prison inmates, the U.S. Department of Education can only 
reduce California's total Federal allocation by a small 
percentage instead of withholding its entire allocation, as the 
Department has threatened to do.
    Governor Wilson and I have worked closely on this matter 
for the past year. We cannot sit by and watch the Department of 
Education jeopardize the provision of services to millions of 
disabled children over its concerns about how well the State is 
serving adult prisoners under the Act. Almost a year ago, the 
Department told the State of California that it will consider 
other options for enforcing IDEA's requirements against the 
State for its failure to serve 18-21 year-old prisoners in 
adult correctional facilities. To date, I have not heard of any 
action by the Department on this matter. I would now like your 
response to the following questions:
    Does the Department intend to hold this threat over the 
State of California forever, jeopardizing the more than $375 
million in Federal Part B funds that California receives for 
its more than half a million children with disabilities?
    Is there some point when the Department will make a 
decision about what action to take, if any?
    Why is the Department not simply following section 616(c) 
of the Act and withholding or reducing California's allotment 
by the amount proportionate to the number of adult prisoners 
who the Department believes California is not serving under 
IDEA?
    It has become clear to me that I have to do more to assure 
that the Department complies with P.L. 105-17. That is why I 
recently introduced H.R. 3254, The IDEA Technical Amendments 
Act of 1998, that would further clarify the statute and make 
this language even more explicit. I plan to mark-up this bill 
in my Subcommittee in the near future, and will pursue 
enactment of this legislation aggressively.
    I still hope that we can work out a solution that carries 
out the intent of the law. I would appreciate a response to the 
questions that I posed to you by May 15, 1998. If you have any 
questions regarding this matter, please contact Jeff Andrade of 
my Subcommittee staff.
            Sincerely,
                                    Frank D. Riggs,
                                  Chairman, Subcommittee on
                                    Childhood, Youth, and Families.
                                ------                                

                 Department of Education, Office of
             Special Education and Rehabilitative Services,
                                      Washington, DC, May 19, 1998.
Hon. Frank Riggs,
Chairman, Subcommittee on Early Childhood, Youth and Families, 
        Committee on Education and the Workforce, House of 
        Representatives, Washington, DC.
    Dear Chairman Riggs: This is in response to your letter to 
me of May 8, 1998. Most of the issues that you raise in your 
letter were previously addressed in Secretary Riley's September 
4, 1997 response to Governor Wilson. I am attaching a copy for 
your information.
    In your letter you ask three questions:
    (1) Does the Department intend to hold this threat over the 
State of California forever, jeopardizing the more than $375 
million in Federal Part B funds that California receives for 
its more than half a million children with disabilities?
    The Department has never threatened California with the 
loss of its Part B funds. Indeed, on July 16, 1997, we awarded 
to the State its full Part B grant. The Department agrees that 
the option of withholding Part B funds from California, based 
on its failure to make a free appropriate public education 
available to youth with disabilities in adult prisons, is 
limited to a proportionate share of the State's grant. 
Moreover, our previous contacts with the State on this issue 
have been focused on resolving this matter cooperatively, 
without withholding any of the State's Part B funds. Our 
efforts towards a cooperative resolution have included the 
offers of technical assistance and of a compliance agreement 
that would give the State up to three years to come into full 
compliance with this requirement.
    As part of my duties as Assistant Secretary, I have visited 
several correctional facilities, including facilities in 
California, an experience which has given me a greater 
appreciation of the issues faced by incarcerated youth with 
disabilities. There are very important policy reasons for our 
efforts to ensure that California comply with the requirements 
of the IDEA. The majority of studies that have looked at the 
benefits of prison education programs have shown that education 
has a positive effect on reducing recidivism and a positive 
effect on post-release employment success. According to 1997 
figures we received from the California Department of 
Corrections, a majority of incarcerated youth ages 21 or 
younger are serving relatively short sentences of 4 years or 
less. In the absence of special education services, youth with 
disabilities will be released back into society without the 
skills they need to become productive citizens. National 
studies show that about one-third of prisoners are unable to 
perform such simple job-related tasks as locating an 
intersection on a street map, or identifying and entering basic 
background information on an application. Another one-third are 
unable to perform slightly more difficult tasks such as writing 
an explanation of a billing error or entering information into 
an automobile maintenance form. Only about one in 20 can do 
things such as use a schedule to determine which bus to take.
    As you know, the 1997 amendments made numerous changes to 
the IDEA that allow States more flexibility in how they serve 
incarcerated youth that can be utilized by all States, 
including California, to work towards full compliance with 
federal law. One of these changes is that the educational 
program and placement of eligible youth with disabilities who 
are convicted as adults and in adult prisons can be modified if 
the State shows a bona fide security or compelling penological 
interest that cannot otherwise be accommodated. This allows 
States, in extreme circumstances, such as when a youth with a 
disability poses an immediate threat to self or others, to make 
changes or cease the program or placement for the appropriate 
period of time. This, along with the new limitations on 
eligibility, transition services, and participation in general 
assessments, provide ample flexibility to States as they 
provide educational services to this population.
    (2) Is there some point when the Department will make a 
decision about what action to take, if any?
    (3) Why is the Department not simply following Section 
616(c) of the Act and withholding or reducing California's 
allotment by the amount proportionate to the number of adult 
prisoners who the Department believes California is not serving 
under IDEA?
    As you are aware, the Department issued a Notice of 
Proposed Rulemaking (NPRM) which sets out our position on what 
enforcement options are available under federal law. Since this 
issue generated comments through the rulemaking process, we are 
carefully considering those comments and will finalize the 
regulations before making a determination concerning 
enforcement action.
    I also want to clarify the position that the Department set 
out in the NPRM. The Department fully agreed that the option of 
withholding Part B funds from States that have transferred to 
another agency the general supervisory authority for providing 
a free appropriate public education to youth with disabilities 
convicted as adults and in adult prisons, be limited to a 
proportionate share of the State's grant. However, the proposed 
regulation also recognizes that the Secretary has various 
enforcement options and the discretion of which option to use 
to ensure full compliance. This position is based, in part, 
upon our long-standing interpretation of section 454 of General 
Education Provisions Act (20 U.S.C. Sec. 1234c). This is not a 
departure from statutory language or the Department's long-
standing interpretation of its enforcement options.
    The Department strongly opposes any revisions to the Act.
    We continue to hope that California will decide to work 
cooperatively with the Department to ensure that a free 
appropriate public education is available to all eligible 
children and youth with disabilities in the State.
            Sincerely,
                                         Judith E. Heumann,
                                               Assistant Secretary.
                                ------                                

                                  House of Representatives,
                                     Washington, DC, June 11, 1998.
Hon. Richard Riley,
Secretary, Department of Education,
Washington, DC.
    Dear Mr. Secretary: I am disappointed with your opposition 
to H.R. 3254, and with Assistant Secretary Heumann's May 19, 
1998, letter on special education services to inmates 
incarcerated in adult prisons. The Committee on Education and 
the Workforce voted to report this bill favorably to the House. 
I plan to continue to pursue it aggressively.
    Governor Pete Wilson, the State Legislature, the President 
of the State Board of Education and numerous parents of 
disabled children in California public schools oppose serving 
adult felons in California under IDEA. Over the past year and 
one-half, Governor Wilson and I have tried to work with the 
Department to arrive at a solution that implements the 
provisions of the IDEA Amendments of 1997. We want to ensure 
that the limited special education resources of California and 
other states can be spent on disabled school children, not 
convicted adult felons.
    Contrary to your characterization, H.R. 3254 does not break 
last year's agreement on the IDEA. In fact, it is the 
Department that has not acted in good faith in implementing the 
provisions contained in section 616(c) of the statute. The 
proposed regulations for 34 CFR 300.587(b) violate this section 
of the statute, which is a specific exception to the 
Secretary's general enforcement authority. I am troubled by the 
Department's continued assertions that it may go beyond the 
limits on enforcement actions in section 616 of IDEA, and 
exercise the enforcement remedies contained in section 454 of 
the General Education Provisions Act (GEPA) in these cases. The 
language of the statute and legislative history are clear. 
Moreover, the Department had knowledge of these provisions 
through its participation in the negotiations on the IDEA 
Amendments. Had the Congress wanted to grant the Department 
these additional remedies, it would have so specified in the 
IDEA legislation. Instead, the statute contains specific 
limitations on services to individuals incarcerated in adult 
prisons, and on the penalties for not providing those services.
    I also object to the implication that this bill is an 
attempt to chip away at a basic civil right in a way that 
threatens education services to all children and youth. As a 
principal author of last year's IDEA Amendments, I have worked 
to preserve a disabled child's right to a free and appropriate 
public education and to help parents and educators improve the 
educational results for these children. In my view, the heavy-
handed tactics that the Office of Special Education Programs 
(OSEP) has applied to coerce California to direct State funds 
away from children with disabilities in our schools in order to 
pay for services to convicted adult felons in prison is more of 
a threat to special education services to our disabled youth 
than anything contained in H.R. 3254.
    Ms. Heumann is incorrect in stating that ``the Department 
has never threatened California with the loss of Part B 
funds.'' On October 21, 1996, Thomas Hehir, Director of Special 
Education Programs sent a letter to the Director of the Special 
Education Division in the California State Department of 
Education. In that letter, Mr. Hehir informed State officials 
that the Department could ``withdraw assistance under the Act'' 
to the California State Department of Education because special 
education services were not available in the California 
Department of Corrections. Further, Mr. Hehir urged the 
California State Department of Education to enter into a 
compliance agreement as ``an appropriate manner in which we can 
continue to fund California under Part B while the State works 
toward full compliance with the Part B requirements.'' That 
threat to deny Federal assistance to the one-half million 
school children with disabilities in California is a principal 
reason why Congress included Section 616(c) in the IDEA 
Amendments.
    Finally, given the Department's inaction on enforcement in 
the California case, I am confused by the Administration's 
concerns that H.R. 3254 would undermine the Department's 
ability to enforce IDEA. This matter goes back to an OSEP 
monitoring review that was conducted in January 1995. The 
findings were not issued to the State until more than a year 
later. Now, three and one-half years since the actual review, 
Ms. Heumann informs me that the Department will still not make 
a determination concerning enforcement action. This is 
disturbing.
    I urge you to give this matter your personal attention, and 
that you review these issues so that California can get back to 
focusing on meeting the needs of the nearly one-half million 
children with disabilities in our schools.
    If you have any questions regarding this matter, please 
contact Jeff Andrade of my Subcommittee staff.
            Sincerely yours,
                                    Frank D. Riggs,
                            Chairman, Subcommittee on Early
                                     Childhood, Youth and Families.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

     SECTION 616 OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

SEC. 616. WITHHOLDING AND JUDICIAL REVIEW.

  (a) * * *

           *       *       *       *       *       *       *

  (c) Divided State Agency Responsibility.--[For purposes of 
this section] (1) Notwithstanding subsections (a) and (b), 
where responsibility for ensuring that the requirements of this 
part are met with respect to children with disabilities who are 
convicted as adults under State law and incarcerated in adult 
prisons is assigned to a public agency other than the State 
educational agency pursuant to section 612(a)(11)(C), [the 
Secretary, in instances where the Secretary finds that the 
failure to comply substantially with the provisions of this 
part are related to a failure by the public agency, shall take 
appropriate corrective action to ensure compliance with this 
part, except--
          [(1) any reduction or withholding of payments to the 
        State is proportionate to the total funds allotted 
        under section 611 to the State as the number of 
        eligible children with disabilities in adult prisons 
        under the supervision of the other public agency is 
        proportionate to the number of eligible individuals 
        with disabilities in the State under the supervision of 
        the State educational agency; and
          [(2) any withholding of funds under paragraph (1) 
        shall be limited to the specific agency responsible for 
        the failure to comply with this part.]
the Secretary, in instances where the Secretary finds that the 
failure to comply substantially with the provisions of this 
part are related to a failure by the public agency during a 
fiscal year to provide special education and related services 
to individuals who are 18 years of age or older, and the 
Secretary decides to take corrective action to ensure 
compliance with this part, may take only the following such 
corrective action (and such corrective action may only be taken 
with respect to payments for that fiscal year):
          (A) Reduce or withhold payments to the State in an 
        amount that is proportionate to the total funds 
        allotted under section 611 to the State as the number 
        of such individuals who are 18 years of age or older is 
        proportionate to the number of eligible individuals 
        with disabilities in the State under the supervision of 
        the State educational agency.
          (B) Ensure that any withholding of funds under 
        paragraph (1) shall be limited to the specific agency 
        responsible for the failure to comply with this part.
  (2) Upon reduction or withholding of payments to a State for 
a fiscal year under paragraph (1)--
          (A) with respect to children with disabilities who 
        are convicted as adults under State law and 
        incarcerated in adult prisons, the State shall be 
        deemed to be in compliance with this part for that 
        fiscal year; and
          (B) no additional corrective action may be taken 
        against the State with respect to the failure by the 
        public agency described in paragraph (1).
  (3) For purposes of paragraph (1)(A), the number of eligible 
children with disabilities in adult prisons under the 
supervision of the other public agency and the number of 
eligible individuals with disabilities in the State under the 
supervision of the State educational agency shall be determined 
by the Secretary on the basis of the most recent satisfactory 
data available to the Secretary.

                             MINORITY VIEWS

    The Majority asserts in its views that H.R. 3254, is 
necessary to clarify the intent of P.L. 105-17, the IDEA 
Amendments of 1997 (IDEA 97) because the Department of 
Education has overstepped its enforcement authority under the 
statute. This is false. This bill significantly modifies the 
intent and meaning of IDEA 97 pertaining to individuals with 
disabilities in adult correctional facilities in a way in which 
we cannot support. Furthermore, we find it troubling that the 
Majority, through H.R. 3254, seeks to undo the bipartisan 
compromise reached in IDEA 97.
    The IDEA Amendments of 1997 was signed into law by 
President Clinton on June 4, 1997, The process used to draft 
the 1997 measure was wholly inclusive, involving both 
Democratic and Republican Members from the House and the 
Senate, and the Clinton Administration as full participants in 
the construction of this historic legislation. This measure was 
also the product of compromise--both chambers, both parties, 
and the Administration all had to find a middle course on their 
policy objectives in order to arrive at legislation that 
strengthens the ability of individuals with disabilities to 
receive a free appropriate public education (FAPE). It is 
important to note that IDEA 97 passed the House by a 420-3 
margin and the Senate by a 98-1 margin--clear evidence of 
support for the statute in its current form.
    Current law gives the Department of Education two 
enforcement options under IDEA: withholding of funds or 
referral for appropriate enforcement action, which may include 
referral to the Department of Justice. Current law also 
authorizes an additional, more limited enforcement tool when 
dealing with individuals with disabilities incarcerated in 
adult correctional facilities. In these cases, the Department 
of Education may only withhold the share of funds attributable 
to the number of disabled individuals in adult correctional 
facilities. Nothing in the statute implies or states that the 
Department of Education is limited to the option of withholding 
of funds to ensure compliance regarding incarcerated 
individuals with disabilities. The Department may use what ever 
enforcement mechanism is necessary to obtain compliance with 
IDEA and ensure that all individuals with disabilities receive 
a free appropriate public education in California and across 
the nation. The statute does not permit the Governor of a State 
to ignore the civil rights of individuals with disabilities.
    Unfortunately, H.R. 3254 ignores the compromise reached in 
IDEA 97 and unravels the overwhelming bipartisan support for 
the Act. The Majority's claim that the Department of Education 
is overstepping its enforcement authority, and waging an 
``aggressive campaign'' against California is false. The 
Department of Education has been attempting to work with 
California, and provide it with the technical assistance and 
training it needs to be able to comply with IDEA. The 
Department has taken no enforcement action to date, choosing to 
work with California, rather than to assert its statutorily 
provided authority. Such actions seem to bear little 
resemblance to the ``aggressive campaign'' claimed by the 
Majority.
    We also note that IDEA 97 included several provisions 
allowing for flexibility in serving IDEA eligible individuals 
who are incarcerated in adult correctional facilities. These 
provisions include:
    Through State statute or a State's Governor, a State may 
assign any public agency in the State responsibility with 
respect to individuals with disabilities incarcerated in adult 
prisons and compliance for this population with IDEA.
    An exemption from the mandatory participation of 
individuals with disabilities incarcerated in adult prisons on 
general assessments.
    An exemption from transition planning for individuals with 
disabilities whose eligibility under IDEA will end, because of 
their age, before they will be released from prison.
    A disabled individual's individualized education plan (IEP) 
may be modified if a State has demonstrated bona fide security 
or compelling peneological interests.
    Least Restrictive Environment (LRE), may also be modified 
if a State has demonstrated bona fide security or compelling 
peneological interests.
    The Secretary may not take an enforcement action against 
the SEA if the SEA is not the agency responsible for those 
individuals with disabilities in adult prisons.
    In reducing funds for a State, the Secretary may only take 
such action on a proportionate basis, based on the number of 
disabled individuals in adult correctional facilities, compared 
to the number of disabled individuals total.
    The obligation to provide FAPE for individuals with 
disabilities aged 18 through 21 who are incarcerated in an 
adult correctional facility could be waived by a State if such 
individuals were not identified or did not have an IEP in their 
last educational placement prior to incarceration.
    Unfortunately, H.R. 3254 would amend IDEA to limit the 
Department of Education to one enforcement option when a State 
is in violation of IDEA by refusing to serve individuals with 
disabilities incarcerated in adult correction facilities over 
the age of 18. Limiting this enforcement authority to a small 
segment of IDEA funds received by a State, will open the door 
to States who want to eliminate IDEA services to these 
incarcerated in adult correctional facilities. Despite the 
numerous provisions providing flexibility in serving this 
population, the modifications sought by this bill would ensure 
that DEA services--educational and other related services--are 
cut off to those in adultcorrectional facilities. While we are 
concerned about the scarce amount of resources available to educate our 
children with disabilities, ignoring this segment of the population 
through denial of educational services will ensure that they become the 
future burdens on our society's social welfare system.
    The Majority also includes several quotations from floor 
consideration of P.L. 105-17 to support H.R. 3254. The first 
quote is from Congressman Frank Riggs, Chairman of the Early 
Childhood, Youth and Families Subcommittee. In this quote he 
asserts that California can only be penalized under IDEA 
through the withholding of funds. This statement is not 
consistent with the statute, which clearly provides two 
enforcement remedies for noncompliance. This statement has no 
value in terms of legislative history. The second floor 
quotation included by the majority is from a colloquy by 
Senators Harkin and Boxer. Mr. Harkin's response to Mrs. 
Boxer's inquiry about enforcement actions available to ED under 
the bill only deals with situations where the penalty chosen 
for noncompliance is the withholding of funds. This statement 
by Senator Harkin does not preclude the existence of other 
enforcement options.
    IDEA and its provisions relating to services to those in 
adult correctional facilities were the product of bipartisan, 
bicameral compromise. We should not, approximately one year 
after the enactment of this historic legislation, go back on 
our commitment to this compromise. During the process to create 
IDEA 97, all Members, Republican or Democrat, had the ability 
to object, and eliminate a policy direction sought by another 
Member. H.R. 3254 is a shameful breach of last year's 
bipartisan IDEA agreement, and will undermine enforcement of 
the Individuals With Disabilities Act.

                                   William L. Clay.
                                   Dale E. Kildee.
                                   Major R. Owens.
                                   Patsy T. Mink.
                                   Lynn Woolsey.
                                   Chaka Fattah.
                                   Carolyn McCarthy.
                                   Ron Kind.
                                   Harold E. Ford, Jr.
                                   George Miller.
                                   Matthew G. Martinez.
                                   Donald M. Payne.
                                   Robert E. Andrews.
                                   Bobby Scott.
                                   Carlos Romero-Barcelo.
                                   Ruben Hinojosa.
                                   John F. Tierney.
                                   Loretta Sanchez.
                                   Dennis J. Kucinich.

                                
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