[Senate Report 105-17]
[From the U.S. Government Publishing Office]
Calendar No. 46
105th Congress Report
SENATE
1st Session 105-17
_______________________________________________________________________
INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997
_______
May 9, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Jeffords, from the Committee on Labor and Human Resources,
submitted the following
R E P O R T
[To accompany S. 717]
The Committee on Labor and Human Resources, to which was
referred the bill (S. 717) to amend the Individuals with
Disabilities Education Act, to reauthorize and make
improvements to that Act, and for other purposes, having
considered the same, reports favorably thereon and recommends
that the bill do pass.
CONTENTS
Page
I. Introduction.....................................................1
II. Purpose and summary..............................................2
III. Background and need for legislation..............................2
IV. Legislative history and committee action.........................4
V. Explanation of bill and committee views..........................4
VI. Cost estimate...................................................40
VII. Regulatory impact statement.....................................45
VIII.Application of law to the legislative branch....................45
IX Section-by-section analysis.....................................46
X. Changes in existing law.........................................61
i. introduction
S. 717 was the result of extensive discussions among
Senators and Congressmen, and officials of the U.S. Department
of Education, as well as recommendations from parents of
children with disabilities, educators, and other individuals
interested in improving the quality of education for children
with disabilities. S. 717 and its companion bill in the House,
H.R. 5, as amended, are identical. The legislation was
developed through a bicameral, bipartisan, legislative branch,
executive branch collaborative effort that preceded committee
action.
ii. purpose and summary
In reporting S. 717, the Individuals with Disabilities
Education Act Amendments of 1997, the committee improves the
Individuals with Disabilities Education Act (IDEA) through
provisions that: (1) place the emphasis on what is best
educationally for children with disabilities rather than on
paperwork for paperwork's sake; (2) give professionals,
especially teachers, more influence and flexibility and school
administrators and policymakers lower costs in the delivery of
education to children with disabilities; (3) enhance the input
of parents of children with disabilities in the decision making
that affects their child's education; (4) make schools safer;
and (5) consolidate and target discretionary programs to
strengthen the capacity of America's schools to effectively
serve children, including infants and toddlers, with
disabilities.
The committee also makes it easier to understand and use
IDEA by simplifying its structure and the organization of
provisions. The legislation, in part A alphabetizes definition
in section 602; in part B, consolidates all State educational
agency eligibility requirements in section 612 and all local
educational agency eligibility requirements in section 613;
groups evaluation and reevaluation, individualized education
program, and placement provisions in section 614; and places
all procedural safeguards requirements in section 615. Part H,
the early intervention program for infants and toddlers,
becomes part C. Other discretionary programs are condensed and
consolidated into part D, with two authorized subparts
including a State Program Improvement Grant Program.
iii. background and need for legislation
Congress established a State grant program for the
Education of Handicapped Children under title VI of the
Elementary and Secondary Education Amendments of 1996 (P.L. 89-
750). In 1970, Congress authorized the Education of the
Handicapped Act (EHA) as title VI of P.L. 91-230. With the
enactment of P.L. 91-230, the State grant program established
in 1966 was redesignated as part B of the EHA
In 1975, Congress passed the Education for All Handicapped
Children Act, P.L. 94-142. It amended part B, the State grant
program in the EHA. P.L. 94-142 refined and expanded
requirements for State participation in the State grant
program. In accepting State grant funds, a State was required
to provide a free appropriate public education (FAPE) to all
children with disabilities in the State according to specific
procedures and civil rights protections.From 1979 through 1994,
a series of amendments to the EHA refined and increased in number
discretionary programs in personnel preparation, research,
demonstration, and technical assistance. In 1986, the Handicapped
Children's Protection Act, P.L. 99-372, was enacted. In amending part B
of the EHA, P.L. 99-372 authorized attorneys' fees for parents who
prevail in due process proceedings and judicial actions against school
districts. Also in 1986, P.L. 99-457 was enacted, creating a new part H
in the EHA. Part H provides funds for State programs in early
intervention services for infants and toddlers with disabilities from
birth through two years of age. The EHA amendments of 1990, P.L. 101-
476, renamed the statute as the Individuals with Disabilities Education
Act (IDEA). In 1994 P.L. 103-382, the Improving America's Schools Act
of 1994, eliminated the separate authorization for the chapter 1
Handicapped Program and merged its authorization for funding with part
B funding under the IDEA and gave school districts the discretion to
remove children with disabilities to an interim alternative educational
setting for up to 45 days when such children bring firearms to school.
This committee believes that the critical issue now is to
place greater emphasis on improving student performance and
ensuring that children with disabilities receive a quality
public education. Educational achievement for children with
disabilities, while improving, is still less than satisfactory.
This review and authorization of the IDEA is needed to move
to the next step of providing special education and related
services to children with disabilities: to improve and increase
their educational achievement.
In the 104th Congress, Senator Frist, Chairman of the
Subcommittee on Disability Policy, with Senator Harkin,
introduced the Individuals with Disabilities Education Act
Amendments of 1996, S. 1578. The legislation was reported out
of the Committee on Labor and Human Resources on March 21,
1996. No further action was taken in the Senate.
In 105th Congress on January 28, 1997, Chairman Jeffords
introduced the Frist-Harkin bill as S. 216.
On January 29, 1997 the Committee on Labor and Human
Resources held a hearing (S. Hrg. 105-1) to solicit
recommendations for the reauthorization of the Individuals with
Disabilities Act (IDEA). The following individuals testified:
Judith E. Heumann, Assistant Secretary, Office of Special
Education and Rehabilitative Services, U.S. Department of
Education, Washington, DC; Madeline Will, Former Assistant
Secretary, Office of Special Education and Rehabilitative
Services, U.S. Department of Education, Chevy Chase, MD; Daniel
Sullivan, Chairman, Bedford, New Hampshire School Board,
Nashua, N.H.; David S. Wolk, Superintendent, Rutland City
School District, Rutland, VT, on the behalf of the American
Association of School Administrators; Michael Remus, Team
Leader for Student Support Services, Kansas Board of Education,
Chairman of the Board, the HRC, and member, National
Association of State Directors of Special Education, Topeka,
KS; Elisabeth T. Healy, Member, Pittsburgh School Board, and
board member, TASH, Pittsburgh, PA; Anne L. Bryant, Executive
Director, National School Boards Association, Alexandria, VA;
Stanley S. Herr, Professor of Law, University of Maryland,
Baltimore, MD; Marcia Reback, President, Rhode Island
Federation of Teachers, Providence, RI; H. Michael Brown,
Principal, Hope High School, on behalf of the National
Association of Secondary School Principals, Hope, AR: Robert
Chase, President, National Education Association, Washington,
DC; and Gerald Hime, President, Council for Exceptional
Children, Reston, VA.
iv. legislative history and committee action
The committee considered the legislation on May 7, 1997.
Chairman Jeffords offered four amendments en bloc. The first
amendment makes clear that States are not obligated by Federal
law to provide IDEA services to individuals aged 18 to 21 who
are incarcerated in an adult prison and who were not receiving
services immediately prior to their incarceration. If they were
receiving services, the obligation to provide services, would
continue. The second amendment clarifies that the only two
exceptions to the so-called ``stay put'' rule in section 615(k)
are when guns or drugs are involved, or when continued
placement is substantially likely to result in physical harm.
For all other violations of school rules or codes of conduct
the stay put rule applies. Thus, if a child's parents object to
a change in placement, the child would stay in his or her
current placement. The third amendment defines substantial
evidence for the purposes of the subsection of the bill dealing
with placement in an alternative educational setting. A hearing
officer's determination that continued placement is
substantially likely to result in harm would require something
more than a preponderance of the evidence. The fourth amendment
clarifies what the law is today with respect to referral for
enforcement, which may include referral to the Department of
Justice.
Senator Gregg offered, and then withdrew, an amendment to
specify minimum levels of appropriations to be provided in each
of the fiscal years 1998 through 2004. Under the amendment,
appropriations would be authorized at not less than
$4,107,522,000 for fiscal year--an increase of $1 billion over
the current funding level. Not less than $13,107,522,000 would
be authorized in fiscal year 2004--an increase of $10 billion
over the current level.
Final Action: The bill as amended was reported favorably by
unanimous voice vote.
v. explanation of bill and committee views
The purposes of the Individuals with Disabilities Education
Act Amendments of 1997 are to clarify and strengthen the
Individuals with Disabilities Education Act (IDEA) by providing
parents and educators with the tools to:
Preserve the right of children with disabilities to a
free appropriate public education;
Promote improved educational results for children
with disabilities through early intervention,
preschool, and educational experiences that prepare
them for later educational challenges and employment;
Expand and promote opportunities for parents, special
education, related services, regular education and
early intervention service providers, and other
personnel to work in new partnerships at both the State
and local levels;
Create incentives to enhance the capacity of schools
and other community-based entities to work effectively
with children with disabilities and their families,
through targeted funding for personnel training,
research, media, technology, and the dissemination of
technical assistance and best practices.
In its 22-year life span, the Individuals with Disabilities
Education Act has achieved many of the important goals it
sought to achieve. Children with disabilities are for the most
part well served in America's public and private schools and
are guaranteed the right in every State and outlying area to a
free appropriate public education by law.
The IDEA has been a very successful law. Prior to its
implementation, approximately 1 million children with
disabilities were denied education. The number of children with
developmental disabilities in State institutions has declined
by close to 90 percent. The number of young adults with
disabilities enrolled in postsecondary education has tripled,
and the unemployment rate for individuals with disabilities in
their twenties is almost half that of their older counterparts.
Despite this progress, the promise of the law has not been
fulfilled for too many children with disabilities. Too many
students with disabilities are failing courses and dropping out
of school. Almost twice as many students with disabilities drop
out as compared to students without disabilities. Of further
concern is the continued inappropriate placement of children
from minority backgrounds and children with limited English
proficiency in special education. In addition, school officials
and others complain that the current law is unclear and focuses
too much on paperwork and process rather than on improving
results for children.
This authorization is viewed by the committee as an
opportunity to review, strengthen, and improve IDEA to better
educate children with disabilities and enable them to achieve a
quality education by:
(1) Strengthening the role of parents;
(2) Ensuring access to the general education
curriculum and reforms;
(3) Focusing on teaching and learning while reducing
unnecessary paperwork requirements;
(4) Assisting educational agencies in addressing the
costs of improving special education and related
services to children with disabilities;
(5) Giving increased attention to racial, ethnic, and
linguistic diversity to prevent inappropriate
identification and mislabeling;
(6) Ensuring schools are safe and conducive to
learning; and
(7) Encouraging parents and educators to work out
their differences by using nonadversarial means.
In drafting the bill, the committee was guided by the
premise that, to achieve a quality education for children with
disabilities, it should start with current law and build on the
actions, experiences, information, facts, and research gathered
over the life of the law, particularly in the last 3 years.
Further, in developing these amendments the committee
distinguished between problems of implementation and problems
with the law, and responded appropriately in addressing any
issue raised.
Through this legislation the committee intends to encourage
exemplary practices that lead to improved teaching and learning
experiences for children with disabilities, and that in turn,
for these children, result in productive independent adult
lives, including employment. Through these efforts, the
committee intends to assist States in the implementation of
early intervention services for infants and toddlers with
disabilities and their families, and support the smooth and
effective transition of these children to preschool.
The committee views the structure and substance of this
legislation as critically important, if the country is to see
clearer understanding of, and better implementation and fuller
compliance with, the requirements of IDEA.
TITLE I--AMENDMENTS TO THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Amendments to part A of the Individuals with Disabilities Education Act
Definitions
Section 602 of the Amendments consolidates the majority of
the definitions in the act and reorders them alphabetically.
Most definition in current law are retained, and where
appropriate updated. Forexample the definitions of ``State
educational agency'' and ``Local educational agency'' were amended to
be consistent with the definition of these terms in title XIV of the
Elementary and Secondary Education Act of 1965, as amended by the 1994
Improving America's Schools Act and the term ``intermediate educational
unit'' has been replaced by the term ``educational service agency'' and
its definition, to reflect the more contemporary understanding of the
broad and varied functions of such agencies.
The bill amends the definition of ``related services,'' by
adding ``orientation and mobility services.'' This change is
not intended to reduce or alter the scope of related services
or special education services that are available to children
with disabilities, but merely to emphasize the importance of
orientation and mobility services. Orientation and mobility
services are generally recognized to be services provided to
children who are blind or have visual impairments. However, it
is important to keep in mind that children with other
disabilities may also need instruction in traveling around
their school, or to and from school. A high school aged child
with a mental disability, for example, might need to be taught
how to get from class to class so that he can participate in
his inclusive program. The addition of orientation and mobility
services to the list of identified related services is not
intended to result in the denial of appropriate services for
children with disabilities who do not have visual impairments
or blindness.
The bill retains the 13 disability categories. However,
the bill expands the definition for service eligibility in part
B called ``developmental delay,'' to be used at State and local
discretion, for children ages three through nine. The use of a
specific disability category to determine a child's eligibility
for special education and related services frequently has led
to the use of the category to drive the development of the
child's Individualized Education Program (IEP) and placement to
a greater extent than the child's needs.
The committee believes that, in the early years of a
child's development, it is often difficult to determine the
precise nature of the child's disability. Use of
``developmental delay'' as part of a unified approach will
allow the special education and related services to be directly
related to the child's needs and prevent locking the child into
an eligibility category which may be inappropriate or
incorrect, and could actually reduce later referrals of
children with disabilities to special education.
The committee wants to make clear that changing the
terminology from ``serious emotional disturbance'' to ``serious
emotional disturbance (hereinafter referred to as `emotional
disturbance') in the definition of a child with a disability is
intended to have no substantive or legal significance. It is
intended strictly to eliminate the pejorative connotation of
the term ``serious. It should in no circumstances be construed
to change the existing meaning of the term under 34 C.F.R.
300.7(b)(9) as promulgated September 29, 1992.
Policy letters and regulations
Section 607 maintains the requirements of current law that
prescribe a 90-day public comment period for enacting proposed
regulations under parts B and C, and establishes a baseline for
regulations promulgated by the Secretary under the act that
provides protections to children with disabilities. The section
also specifies that the Secretary may not establish a rule
required for compliance with, or eligibility under, this part
without following the requirements of 5 U.S.C. 553. Section 607
also specifies that the Secretary shall, on a quarterly basis,
publish in the Federal Register, and widely disseminate through
various additional forms of communication, a list identifying
the topic and other appropriate summary information, of
correspondence from the Department of Education that describes
its interpretation of IDEA or regulations issued by the
Department in the previous quarter. Furthermore, if the
Secretary receives a written request regarding a policy,
question, or interpretation under part B of IDEA, and
determines that it raises an issue of general interest or
applicability of national significance to the implementation of
part B, the Secretary shall include a statement to that effect
in any written response; and widely disseminate that response
to SEA's, LEA's, parent and advocacy organizations, and other
interested organizations subject to appropriate confidentiality
laws. The bill directs the Secretary not later than one year
after responding on such a matter to issue written guidance on
the policy, question, or interpretation through such means as a
policy memorandum, notice of interpretation, or notice of
proposed rulemaking.
The bill requires that those written responses by the
Secretary shall include an explanation that the Secretary's
written response is provided as informal guidance and is not
legally binding; and represents the interpretation by the
Department of Education of the applicable statutory or
regulatory requirements in the context of the facts presented.
The committee recognizes the need for the Secretary to
offer correspondence for a variety of reasons. Among those are
technical assistance, interpretation and clarification of this
act and the accompanying regulations, and monitoring for
compliance. Section 607 of the bill is not intended to prohibit
the Secretary from answering such correspondence.
The committee believes the guidance in section 607 is
consistent with the public notice and comment procedures of the
Administrative Procedures Act and will provide all stake
holders witha common frame of reference and expectation with
regard to any particular written correspondence from the Secretary, its
significance, and its future implications. With the enactment of
section 607, such guidance should reduce substantially the degree and
amount of misapplication or misinterpretation of Secretarial
correspondence.
Amendments to part B of the Individuals with Disabilities Education Act
Funding formula
Section 611 of the act retains the disability child count-
based formula in current law until the appropriation for part B
of the IDEA reaches $4,924,672,200. When this threshold funding
level is reached, a change in the funding formula for
distributing funds to States will be triggered. At that point,
yearly child counts based on disability will no longer
determine a State's allotment. When the threshold funding level
is reached, a State's allotment will be based on two
calculations, which would be added together to determine the
State's allotment under the new formula: (1) the amount the
State received in the year prior to the threshold amount being
reached; and (2) the State's proportional share of funds that
exceed that previous year's appropriation, based 85 percent on
the State's census data for children from 3 through 21 (if the
State provides FAPE to children of these ages), and 15 percent
on the State's poverty rate. Distribution of part B funds
within States will be on the same basis.
The legislation caps the maximum increase for a State
gaining from the change in formula and includes a floor for
States receiving less under the change in formula. States would
receive no more than 1.5 percent more than the total percent
part B appropriations increase for that year. In addition, the
State would receive no less than either 1.5 percent less than
the total percent part B appropriations increase for that year
or 90 percent of the total percentage increase, whichever is
greater. No State will receive less than the amount it received
in the prior year. In the year the new formula is triggered,
the State minimum will become \1/3\ of the one percent of the
new formula funds.
The committee wishes to make clear that the change from a
formula based on the number of children with disabilities to a
formula based on census and poverty should in no way be
construed to modify the obligation of educational agencies to
identify and serve children with disabilities.
Section 501 of P.L. 95-134, permitting consolidation of
grants, would not apply to the outlying areas or freely
associated States under this section. The purpose of this was
to assure that entities actually use IDEA funds for delivering
services to children with disabilities.
The percentage of the appropriation that will go to the
Secretary of the Interior to provide special education and
related services to Indian children with disabilities has
changed to 1.226 percent of the total appropriation. This
percentage will provide the Secretary of the Interior the same
amount of funding as the 1.25 percent did under the past
authorization, because the future amounts will come out of a
larger base of funding in the total part B formula.
The committee developed the change in formula to address
the problem of over-identification of children with
disabilities. When the act was first passed in 1975, States
were not providing educational services to many children with
disabilities. Therefore, Congress proposed to distribute
Federal Funds for special education services in order to
encourage and reward States for serving eligible children. In
the 22 years since then, the States have made excellent
progress in identifying children with disabilities and
providing them access to special education, and are now serving
5.5 million children with disabilities or approximately 10
percent of children aged 3 through 17. Logically, a formula was
established at that time that based funding on counting the
number of children with disabilities identified. This was to
encourage States to locate children with disabilities.
Today, the growing problem is over identifying children as
disabled when they might not be truly disabled. The challenge
today is not so much how to provide access to special education
services but how to appropriately provide educational services
to children with disabilities in order to improve educational
results for such children. As States consider this issue, more
and more States are exploring alternatives for serving more
children with learning problems in the regular educational
classroom. But in doing so, they face the prospect of
reductions in Federal funds, as long as funding is tied to
disabled child counts.
While it is unlikely that individual educators ever
identify children for the additional funding that such
identification brings, the financial incentive reduces the
scrutiny that such referrals would receive if they did not have
the additional monetary benefit. It also reduces the scrutiny
of children who might be moved back out of special education.
In-State funding formulas that follow the current disability-
based Federal child-count formula further reduce such scrutiny,
with more children being identified to draw additional State
funds.
This problem is most intense with minority children,
especially African-American males. Over-identification of
minority children, particularly in urban schools with high
proportions of minority students, remains a serious and growing
problem in this Nation. The problem alsocontributes to the
referral of minority special education students to more restrictive
environments.
The committee is also cognizant, however, that in some
areas under identification remains a problem, particularly for
minority children.
The committee has squarely faced this problem by shifting,
once the targeted threshold is reached, to a formula of which
85 percent of additional funds is based on the total school age
population and 15 percent is based on the poverty statistic for
children in a State. This system was encouraged in the 1994
report of the Department of Education's Inspector General. The
Inspector General noted: ``Because [a population-based] method
[of allocating funds] uses objective data derived for other
purposes, [this method] eliminates the financial incentives for
manipulating student counts [that exist in the current
formula], including retaining students in special education
just to continue receiving Federal funds.'' The committee added
a poverty factor to the formula because there is a link between
poverty and certain forms of disability. This concept was also
encouraged by the Inspector General's report.
Based on the significant progress that has been made in
providing access to special education and concerns about the
over-identification of children as disabled, the committee
believes this new formula will address many of these concerns.
This change will enable States to undertake good practices for
addressing the learning needs of more children in the regular
classroom without unnecessary categorization or labeling
thereby risking the loss of Federal funds. Changing the Federal
formula may also motivate States to change their own formulas
for distributing State aid in ways that eliminate inappropriate
financial incentives for referring children to special
education.
The bill continues to authorize that States may retain a
portion of their State allotments with certain changes
effective for fiscal year 1998. First, the 5 percent for
administrative purposes is capped at the fiscal year 1997
level, with future annual increases limited to the lesser of
the rate of inflation or the rate of Federal appropriation
increases. The remaining 20 percent of the State's share of its
part B allotment is capped in the same manner. Any excess above
inflation in any year goes into a new 1-year fund that must be
distributed that year through grants to LEA's for local
systemic improvement activities or for specific direct
services. In the next year, the amounts expended for such
activities must be distributed to LEA's based on the part B
formula.
A new reporting provision was included for the Secretary of
the Interior's Advisory Council. This is intended to provide a
means of determining if the Advisory Council is carrying out
its duties and whether the Secretary is incorporating the
recommendations of the Council into the Department of the
Interior's programs.
State eligibility
Section 612 establishes the conditions of State eligibility
for part B funds. Many provisions are retained from current
law. Other provisions have been added to promote a better
understanding of, and more consistent compliance with, part B
of the statute.
Provisions retained from current law are obligations of a
State to: establish a full educational opportunity goal and a
timetable for meeting it; comply with the evaluation and
confidentiality, IEP, and procedural safeguards provisions;
require that private placements made by public agencies meet
State standards; not commingle part B funds with State funds;
seek public comment prior to adopting policies and procedures
necessary to comply with this section; and meet LEA eligibility
requirements if the SEA provides direct services. In addition,
section 612 retains the opportunity of a State to apply for a
waiver from the ``supplement not supplant'' provision, when it
can demonstrate, through clear and convincing evidence, that it
is providing a free appropriate public education to all
children with disabilities in the State.
Other provisions in section 612 taken from current law are:
(1) the construction clause pertaining to the fact that part B
does not permit a State to reduce medical or other assistance
or alter eligibility under titles V and XIX of the Social
Security Act; and (2) the ``by-pass'' provision that allows the
Secretary to make arrangements to provide services to children
with disabilities in private schools, if a State is prohibited
by State law from providing for the participation of such
children.
Section 612 contains clarifications of current law. To
receive part B funds, States are to make available a free
appropriate public education to all children with disabilities,
including children with disabilities who have been suspended or
expelled from school. States must also conduct child find
activities, which include identification of children in private
schools and a process to determine which children are in need
of special education and receiving it (while allowing
identified children not to be labeled with a disability
category).
The bill provides that a State may also opt not to serve
individuals who, in the educational placement prior to their
incarceration in adult correctional facilities, were not
actually identified as being a child with a disability under
section 602(3) or did not have an individualized education
program under this part. The committee means to set the point
in time when it is determined whether a child has been
identified or had an IEP. This makes clear that services need
not be provided to all children who were at one time determined
to be eligibleunder this part. The committee does not intend to
permit the exclusion from services under part B of children who had
been identified as children with disabilities and had an IEP, but who
had left school prior to their incarceration. In other words, if a
child had an IEP in his or her last educational placement, the child
has an IEP for purposes of this provision. The committee added language
to make clear that children with disabilities aged 18 through 21, who
did not have an IEP in their last educational placement but who had
actually been identified should not be excluded from services.
The bill amends the provisions on least restrictive
environment (redesignated as section 612(a)(5)) to ensure that
the State's funding formula does not result in placements that
violate the requirement that children be placed in the least
restrictive environment.
The committee supports the longstanding concept of the
least restrictive environment, including the policy that, to
the maximum extent appropriate, children with disabilities are
educated with children who are nondisabled and that special
classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs
only when the nature or severity of the disability is such that
education in regular classes with the use of special education
and related services or supplementary aids and services cannot
be achieved satisfactorily.
The committee supports the longstanding policy of a
continuum of alternative placements designed to meet the unique
needs of each child with a disability. Placement options
available include instruction in regular classes, special
classes, special schools, home instruction, and instruction in
hospitals and institutions. For disabled children placed in
regular classes, supplementary aids and services and resource
room services or itinerant instruction must also be offered as
needed.
Section 612 also includes an obligation on a State to
require LEA's to participate in transition planning conferences
for toddlers with disabilities about to enter preschools; and
to provide a proportionate amount of IDEA funds to private
schools in which children with disabilities are enrolled, and,
to the extent consistent with law, at State discretion, provide
services on the premises of private, including parochial,
schools.
Section 612 also includes several other factors that affect
possible parental reimbursement for unilateral private
placements of their child. Parents must give notice about their
concerns and intent at the most recent IEP meeting or written
notice 10 days before they transfer the child to the private
school. Prior to removal of the child from the public school,
if the public agency informed the parents of its intent to
evaluate the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), the parents
must make the child available for such an evaluation. If the
parents do not comply with notice and evaluation requests or
engage in unreasonable actions, hearing officers and courts may
reduce or deny reimbursement to parents for unilateral private
placements. The bill specifies that reduction or denial of
reimbursement must not occur for parents' failure to comply
with these requirements if parents are illiterate and cannot
read English; compliance would result in physical or serious
emotional harm to the child; the school prevented the parents
from complying; or the parents had not received notice with
regard to the potential consequences of noncompliance.
The bill strengthens the requirements on ensuring provision
of services by non-educational agencies while retaining a
single line of responsibility. The chief executive officer of a
State must develop and implement interagency agreements and
reimbursement mechanisms to ensure that educational agencies
have access to funding from non-educational public agencies
that are responsible for services that are also necessary for
ensuring a free appropriate public education to children with
disabilities.
A provision is added to the Act to strengthen the
obligation to ensure that all services necessary to ensure a
free appropriate public education are provided through the
coordination of public educational and non-educational
programs. This subsection is meant to reinforce two important
principles: (1) that the State agency or LEA responsible for
developing a child's IEP can look to noneducational agencies,
such as Medicaid, to pay for or provide those services they
(the noneducational agencies) are otherwise responsible for;
and (2) that the State agency or LEA remains responsible for
ensuring that children receive all the services described in
their IEP's in a timely fashion, regardless of whether another
agency will ultimately pay for the services.
The committee places particular emphasis in the bill on the
relationship between schools and the State Medicaid Agency in
order to clarify that health services provided to children with
disabilities who are Medicaid-eligible and meet the standards
applicable to Medicaid are not disqualified for reimbursement
by Medicaid agencies because they are provided services in a
school context in accordance with the child's IEP.
The bill makes a number of changes to clarify the
responsibility of public school districts to children with
disabilities who are placed by their parents in private
schools. These changes should resolve a number of issues that
have been the subject of an increasing amount of litigation in
the last few years. First, the bill specifies that the total
amount of money that must be spent to providespecial education
and related services to children in the state with disabilities who
have been place by their parents in private schools is limited to a
proportional amount (that is, the amount consistent with the number and
location of private school children with disabilities in the State) of
the Federal funds available under part B. Second, the bill specifies
that school districts may provide the special education and related
services funded under part B on the premises of private, including
parochial, schools. This provision is designed to implement the
principle underlying the ruling of the Supreme Court in Zobrest v.
Catalina Foothills School Dist. that it was not an ``entanglement''
violation of the First Amendment to provide a sign interpreter paid for
with IDEA funds to a deaf student at his parochial school. Third, the
bill clarifies that the child-find, identification, and evaluation
provision of section 612(a)(3) applies to children placed by their
parents in private schools. Comparable language is also included in the
child-find provision itself to make it clear that this obligation is
independent from the participation requirements addressed in section
612(a)(10(A).
Section 612 also specifies that parents may be reimbursed
for the cost of a private educational placement under certain
conditions (i.e. when a due process hearing officer or judge
determines that a public agency had not made a free appropriate
public education available to the child, in a timely manner,
prior to the parents enrolling the child in that placement
without the public agency's consent). Previously, the child
must have had received special education and related services
under the authority of a public agency.
Section 612, as current law, requires that a State have in
effect a Comprehensive System of Personnel Development (CSPD)
that is designed to ensure an adequate supply of qualified
personnel, including the establishment of procedures for
acquiring and disseminating significant knowledge derived from
educational research and for adopting, where appropriate,
promising practices, materials, and technology. The bill
requires the State to coordinate CSPD requirements with the
personnel sections of a State improvement plan under part D, if
the State has such a plan, so the State only has to meet one
set of requirements for both purposes.
With regard to personnel standards, the bill adds two
provisions to the standards in current law. Paraprofessionals
and assistants must be appropriately trained and supervised in
accordance with State law, regulations, or written policy in
order to assist in the provision of special education and
related services. In implementing the personnel standards
requirements, a State may adopt a policy that includes a
requirement that LEA's make an ongoing good-faith effort to
recruit and hire appropriately and adequately trained personnel
to provide special education and related services to children
with disabilities, including, in a geographic area of the State
where there is a shortage of such personnel, the most qualified
individuals available whoa re making satisfactory progress
toward completing applicable course work necessary to meet
State standards within 3 years.
With regard to section 612(a)(16), the committee wishes to
make clear that its requirements are not intended to prevent
the integration of performance goals and indicators for
children with disabilities into the performance goals and
indicators for nondisabled children, so that SEA's and LEA's
can be held accountable for all children.
Section 612(a)(19) specifies that a State must maintain its
level of expenditures for special education and related
services for children with disabilities from one year to the
next. Calculations of the level of expenditures may not include
Federal or local dollars. Reductions from this level are
allowed through a waiver from the Secretary for exceptional or
uncontrollable circumstances such as a natural disaster or a
precipitous and unforeseen decline in the State's financial
resources. In the absence of a waiver situation, if a State
fails to maintain its level of expenditures as required in this
section, the Secretary shall reduce the State's allocation for
any fiscal year following the year of the failure to maintain
the level of effort required, by the same amount by which the
State fails to meet the requirement.
The bill requires the Secretary, by regulation, to
establish procedures for determining whether to grant a waiver
under section 612(a)(19)(E) within one year of enactment based
on compliance with the obligations of part B. These procedures
are to include objective criteria and consideration of the
results of compliance reviews of the State conducted by the
Secretary. The committee intends this provision to be a real
mechanism for waivers under this provision for States that are
complying with their obligations under this act.
With regard to a State's advisory panel, in section
612(a)(21), the committee has added more detail relating to the
panel's duties and added representation from private and public
charter schools and from the State's juvenile and adult
corrections agencies.
Section 612 contains several new provisions. It requires a
State to establish performance goals for children with
disabilities and to develop indicators to judge such children's
progress. Any State that has a state improvement plan under
part D must revise it based on information it obtains from the
assessment of such progress. It requires that children with
disabilities participate in State and districtwide assessments
of student progress, with or without accommodations as
appropriate for the child. By July 1, 2000, for children who
cannot participate in such assessments, alternative assessments
must be developed and conducted. The State must report to the
public on theassessment performance of children with
disabilities with the same frequency and detail it reports on the
performance of nondisabled children, including the number participating
in regular assessments and the number participating in alternative
assessments. Data related to children with disabilities must be
disaggregated. Further, the section requires States to determine if
there is a disproportionate number of long-term suspensions and
expulsions of disabled children and if so to take appropriate action
and to modify policies and procedures in order to be consistent with
the Act.
The section retains the provision in current law requiring
that the SEA have general supervisory authority over
educational programs for children with disabilities, but
provides that the Governor (or another individual pursuant to
State law), consistent with State law, may assign to any public
agency in the State the responsibility of ensuring that the
part B requirements are met with respect to children with
disabilities who are convicted as adults under State law and
are incarcerated in adult prisons. In addition, the provisions
requiring participation of students with disabilities in
Statewide assessments will not apply, the transition services
requirements will not apply to students whose eligibility under
IDEA will terminate before their release from prison, and the
IEP team may modify a student's IEP/placement if the State has
a bona fide security or compelling penological interest that
cannot otherwise be accommodated. These changes, however, do
not affect the student's eligibility for services under IDEA.
Neither do they affect students who are in juvenile facilities.
The act specifies that if a State already has on file with
the Secretary policies and procedures that demonstrate that it
meets any requirement of section 612, it shall be treated by
the Secretary as meeting that requirement, and that State
applications need be submitted only once, and remain in effect,
until the State submits modifications it deems necessary.
Further, the Secretary may require a State to modify its
application to the extent necessary to ensure compliance if the
act or its regulations are amended, or there is a new
interpretation by a Federal court or the State's highest court
or an official Department of Education finding of noncompliance
with Federal law or regulations. These modifications would be
developed and submitted subject to the same process
requirements as the original plan.
Local educational agency eligibility
Section 613 consolidates LEA eligibility requirements,
which if met, make an LEA eligible for part B funding. The
committee believes that these amendments will promote a better
understanding of and more consistent compliance with part B of
the IDEA.
In section 613, the following provisions are retained
without substantive alteration: conditions associated with
notice of LEA or State agency ineligibility; compliance with
part B of the IDEA and State requirements associated with it;
consequences connected to direct services by the SEA when an
LEA cannot or does not provide a free appropriate public
education to children with disabilities within its
jurisdiction; and the conditions associated with the joint
establishment of eligibility, except that the mandatory
obligation on an LEA eligible for less than $7,500 to
consolidate with another LEA is deleted.
Section 613 maintains the requirement that LEA's must
provide information to the SEA so that the SEA will be able to
carry out its responsibilities. A specific reference is added
to this provision regarding information that must be provided
by the LEA so that the SEA can comply with the CSPD and
personnel standards requirements.
The committee also has included several modifications to
current law in section 613. LEA's are required to submit an
application only once to the SEA, instead of once every three
years as under current regulations. Additional information may
be required by the SEA when there are: amendments to the Act or
its Federal regulations; new interpretations of either the act
or its regulations by Federal or State courts; or an official
finding of noncompliance with Federal or State law or
regulations. In these instances, the SEA may require an LEA to
modify its application only to the extent necessary to ensure
the LEA's compliance with part B of IDEA. This section also
explicitly requires that an LEA make available to parents of
children with disabilities and the general public all documents
pertaining to the LEA's eligibility.
This section of the bill maintains the current ``supplement
not supplant'' and maintenance of effort obligations on LEA's,
except that LEA's are required to include only local funds
expended for special education and related services in
determining whether the LEA has maintained its effort. The bill
includes a local maintenance of effort provision to ensure that
the level of expenditures from State and local funds for the
education of children with disabilities within each LEA does
not drop below the level of such expenditures for the preceding
year. However, the committee recognizes that there are times
when appropriate exceptions to this rule must be made. Thus,
the bill includes four specific exceptions:
(1) The voluntary departure, by retirement or
otherwise, or departure for just cause, of special
education personnel who are paid at or near the top of
the agency's salary scale. This exception is included
in recognition that, in some situations, when higher-
salaried personnel depart from their positions in
special education, they are replaced by qualified,
lower-salaried staff. In such situations,as long as
certain safeguards are in effect, the LEA should not be required to
maintain the level of the higher-salaried departing personnel. In order
for an LEA to invoke this exception, the agency must ensure that such
voluntary retirement or resignation and replacement are in full
conformity with existing school board policies in the agency, with the
applicable collective bargaining agreement that is in effect at the
time, and with applicable State statutes.
(2) A decrease in the enrollment of children with
disabilities.
(3) The end of an agency's responsibility to provide
an exceptionally costly program to a child with
disability because the child has left the agency's
jurisdiction, no longer requires such a program, or has
aged-out with respect to the agency's responsibility.
(4) The end of unusually large expenditures for long
term purchases such as equipment or construction.
Section 613 also provides that in any fiscal year for which
amounts appropriated under 611 exceed $4.1 billion, an LEA may
treat, as local funds, up to 20 percent of the funds it
receives under part B that exceed the amount it received in the
previous fiscal year, effectively permitting local schools to
reduce the level of local expenditures for special education
and related services. This section gives a State the authority
to prevent an LEA from reducing its local level of effort when
an LEA has been cited by the SEA as failing to substantially
comply with the act. The committee does not intend that the
Secretary could find an SEA out of compliance based solely on
the fact that LEA's in the State have reduced their effort
under this provision.
New provisions in section 613 give LEA's increased
flexibility in the use of part B funds. Section 613(a)(4)(A)
allows an LEA to use part B funds for special education and
related services provided in a regular class or other education
related setting to a child with a disability in accordance with
the child's IEP, even if one or more nondisabled children
benefit from those services. In addition, section 613(g) allows
an LEA, if granted the authority by the State, to use part B
funds to permit a public school within the jurisdiction of the
LEA to design, implement, and evaluate a school-based
improvement plan that is consistent with the purposes and
activities described under the State Program Improvement Grant
program under part D of these amendments. A school-based
improvement plan must be designed to improve educational and
transitional results for all children, consistent with section
613(a)(4)(A). The section also authorizes LEA's to use part B
funds for school-wide programs, except that the amount of part
B funds that may be used is limited to the number of disabled
children in the school multiplied by the per child allotment.
Section 613 contains two provisions concerning how charter
schools can use part B funds to serve children with
disabilities. First, charter schools that are LEA's may not be
required to apply for part B funds jointly with other LEA's
unless State law specifies otherwise. Second, in situations
where charter schools are within an LEA, the bill directs LEA's
to serve children with disabilities attending charter schools
in the same manner as it serves children with disabilities in
its other schools and directs LEA's to provide part B funds to
charter schools in the same manner they provide such funds to
other schools. The committee expects that charter schools will
be in full compliance with Part B.
Section 613 also provides that the State may require that a
local educational agency include in the records of a child with
a disability a statement of any current or previous
disciplinary action that has been taken against the child and
transmit such statement to the same extent that such
disciplinary information is included in, and transmitted with,
the student records of nondisabled children. The statement may
include a description of any behavior engaged in by the child
that required disciplinary action, a description of the
disciplinary action taken, and any other information that is
relevant to the safety of the child and other individuals
involved with the child. If the State adopts such policy, and
the child transfers from one school to another, the
transmission of any of the child's records must include both
the child's current individualized education program an any
such statement of current or previous disciplinary action that
has been taken against the child.
Evaluations, eligibility determinations, IEPs, and
placements
The bill consolidates in section 614 all interrelated
provisions regarding the evaluation and reevaluation of
children with disabilities and the development, review, and
revision of individualized education programs (IEP's) for these
children. Most of these provisions are current law, as it is
expressed in statute, regulations, and other regulatory
guidance and policies from the U.S. Department of Education.
The committee anticipates that the consolidation of these
provisions in one section, and the clarification of procedural
and administrative requirements associated with them, will
reduce the burdens imposed by the interpretations of current
law and make the requirements more understandable. The
committee expects that these particular amendments will
facilitate State and local implementation of, and compliance
with, these provisions.
Provisions on evaluation in section 614 codify the
requirement that a full and individual initial comprehensive
evaluation must be conducted before the provision of special
education and related services; that the purposes of the
initial evaluation are to determine whether a child is a child
with a disability, and to determine the child's specific
educational needs. The bill specifies that parentsmust provide
informed consent before the initial evaluation of a child, but that
such consent shall not be construed as consent for placement for the
receipt of special education and related services. If a child's parents
refuse consent for evaluation, an LEA may continue to pursue an
evaluation by using the mediation and due process procedures under
section 615, except to the extent inconsistent with State law relating
to parental consent.
Reevaluations are to be conducted if conditions warrant a
reevaluation or if the child's parents or teacher requests a
reevaluation, but at least once every 3 years. Informed
parental consent also must be obtained for reevaluations,
except that such informed consent need not be obtained if the
LEA can demonstrate that it has taken reasonable steps to
obtain consent and the child's parents have failed to respond.
The bill requires that, in conducting evaluations, the LEA:
(1) use a variety of assessment tools and strategies to gather
relevant functional and developmental information, including
information from the child's parents, to establish the child's
eligibility and to determine the content of the child's IEP,
including information relating to enabling the child to be
involved in and progress in the general education curriculum;
(2) not use any single procedure as the sole criterion for
determining a child's eligibility or for determining an
appropriate educational program for the child; and (3) use
technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition
to physical or developmental factors.
In addition, the bill requires an LEA to ensure that: (1)
tests and other evaluation materials used to assess a child are
selected and administered so as not to be racially or
culturally discriminatory, and are administered in the child's
native language or other mode of communication, unless it is
clearly not feasible to do so; (2) any standardized tests given
to the child have been validated for the specific purpose for
which they are used; are administered by trained and
knowledgeable personnel; and are administered in accordance
with the instructions provided by the producers of such tests;
(3) the child is assessed in all areas of suspected disability;
and (4) assessment tools and strategies provide relevant
information that directly assists persons in determining the
educational needs of the child. These requirements reflect
current policy contained in current law and regulations, but
not for the first time, the bill codifies them in one section
of statute.
The committee intends that professionals, who are involved
in the evaluation of a child, given serious consideration at
the conclusion of the evaluation process to other factors that
might be affecting a child's performance. There are substantial
numbers of children who are likely to be identified as disabled
because they have not previously received proper academic
support. Such a child often is identified as learning disabled,
because the child has not been taught, in an appropriate or
effective manner for the child, the core skill of reading.
Other cases might include children who have limited English
proficiency. Therefore, in making the determination of a
child's eligibility, the bill states that a child shall not be
determined to be a child with a disability if the determinant
factor for such a determination is lack of instruction in
reading or math or limited English proficiency. The committee
believes this provision will lead to fewer children being
improperly included in special education programs where their
actual difficulties stem from another cause and that this will
lead schools to focus greater attention on the these subjects
in the early grades.
The bill specifies that the determination of a child's
eligibility is to be made by a qualified team of professionals
and the child's parents. The bill requires that a copy of the
evaluation report and the documentation of the child's
eligibility determination be given to the child's parents.
One of the most significant changes in the bill relates to
how the evaluation process should be viewed. For example, over
the years, the required 3-year reevaluation has become a highly
paperwork-intensive process, driven as much by concern for
compliance with the letter of the law, as by the need for
additional evaluation information about a child. The committee
believes that a child should not be subjected to unnecessary
tests and assessments if the child's disability has not changed
over the three-year time period, and the LEA should not be
saddled with associated expenses unnecessarily. If there is no
need to collect additional information about a child's
continuing eligibility for special education, any necessary
evaluation activities should focus on collecting information
about how to teach and assist the child in the way he or she is
most capable of learning.
Thus, provisions in the bill require that existing
evaluation data on a child be reviewed to determine if any
other data are needed to make decisions about a child's
eligibility and services. If it is determined by the IEP team
and other qualified professionals that additional data are not
needed, the parents must be so notified of the determination
that no additional data are needed, the reasons for it, and of
the parents' right to still request an evaluation. Unlike
current law, however, no further evaluations will be required
at that time unless requested by the parents.
To assist in improved compliance with the IEP provisions,
the committee placed all provisions pertaining to the IEP,
including the definitions of the IEP and the IEP Team, in
section 614(d). The definition of the Individualized Education
Program includes all of the required elements of an IEP,
beginning with a statement of a child's present levels of
educational performance, including how the child's disability
affects the child's involvement and progress in the general
educationcurriculum, or for a preschool child with a
disability, how the child's disability affects the child's
participation in appropriate activities. The IEP should also address
the unique needs of the child that arise out of his or her disability
that must be addressed in order for the child to progress in the
general education curriculum, such as the need of a blind child to read
Braille, or of a cognitively disabled child to receive transportation
training (i.e., how to use public transportation). The committee wishes
to emphasize that, once a child has been identified as being eligible
for special education, the connection between special education and
related services and the child's opportunity to experience and benefit
from the general education curriculum should be strenghtened. The
majority of children identified as eligible for special education and
related services are capable of participating in the general education
curriculum to varying degrees with some adaptations and modifications.
This provision is intended to ensure that children's special education
and related services are in addition to and are affected by the general
education curriculum, not separate from it.
The new emphasis on participation in the general education
curriculum is not intended by the committee to result in major
expansions in the size of the IEP of dozens of pages of
detailed goals and benchmarks or objectives in every curricular
content standard or skill. The new focus is intended to produce
attention to the accommodations and adjustments necessary for
disabled children to access the general education curriculum
and the special services which may be necessary for appropriate
participation in particular areas of the curriculum due to the
nature of the disability.
Specific day-to-day adjustments in instructional methods
and approaches that are made by either a regular or special
education teacher to assist a disabled child to achieve his or
her annual goals would not normally require action by the
child's IEP team. However, if changes are contemplated in the
child's measurable annual goals, benchmarks, or short term
objectives, or in any of the services or program modifications,
or other components described in the child's IEP, the LEA must
ensure that the child's IEP team is reconvened in a timely
manner to address those changes.
The bill requires that a child's IEP include a statement of
measurable annual goals, including benchmarks or short-term
objectives. The committee views this requirement as crucial. It
will help parents and educators determine if the goals can
reasonably be met during the year, and as important, allow
parents to be able to monitor their child's progress. The bill
requires that annual goals included in a child's IEP relate to
``meeting the child's needs that result from the child's
disability to enable the child to be involved in and progress
in and progress in the general education curriculum.'' This
language should not be construed to be a basis for excluding a
child with a disability who is unable to learn at the same
level or rate as nondisabled children in an inclusive classroom
or program. It is intended to require that the IEP's annual
goals focus on how the child's needs resulting from his or her
disability can be addressed so that the child can participate,
at the individually appropriate level, in the general
curriculum offered to all students.
Prior to the enactment of P.L. 94-142 in 1975, the
opportunity and inclination to educate children with
disabilities was often in separate programs and schools away
from children without disabilities. The law and this bill
contain a presumption that children with disabilities are to be
educated in regular classes. Therefore, the legislation
requires that the IEP include an explanation of the extent, if
any, to which a child with a disability will not participate
with nondisabled children in the regular class and in the
general education curriculum including extra-curricular and
nonacademic activities.
This committee recognizes that every decision made for a
child with a disability must be made on the basis of what that
individual child needs. Every child is unique and so will be
his or her program needs. Nonetheless, when the decision is
made to educate the child separately, an explanation of that
decision will need, at a minimum, to be stated as part of the
child's IEP.
Children with disabilities must be included in State and
district-wide assessments of student progress with individual
modifications and accommodations as needed. Thus, the bill
requires that the IEP include a statement of any individual
modifications in the administration of State and district-wide
assessments. The committee knows that excluding children with
disabilities from these assessments severely limits and in some
cases prevents children with disabilities, through no fault of
their own, from continuing on to post-secondary education. The
bill requires that if the IEP team determines that the child's
performance cannot appropriately be assessed with the regular
education assessments, even with individual modifications, the
IEP must include a statement of why the assessment is not
appropriate and alternative assessments must be made available.
The committee reaffirms the existing Federal law requirement
that children with disabilities participate in State and
districtwide assessments. This will assist parents in judging
if their child is improving with regard to his or her academic
achievement, just as the parents the parent of nondisabled
children do.
As under current law, a child's IEP must include a
statement of the special education and related services and
supplementary aids and services to be provided to the child, or
on behalf of the child. The committee intends that, while
teaching and related services methodologies or approaches are
an appropriate topic for discussion and consideration by the
IEP team during IEP development or annual review, they are not
expected to be written into the IEP. Furthermore, the committee
does not intend that changing particular methods or approaches
necessitates an additional meeting of the IEP Team.
Additionally, the committee is aware of, and endorses, the
provision in section 300.350 of the current regulations
relating to personal accountability. The regulation provides
that eachpublic agency must provide special education and
related services to a child with a disability in accordance with an
IEP. However, part B does not require that any agency, teacher, or
other person be held accountable if a child does not achieve the growth
projected in the annual goals and objectives.
The location where special education and related services
will be provided to a child influences decisions about the
nature and amount of these services and when they should be
provided to a child. For example, the appropriate place for the
related service may be the regular classroom, so that the child
does not have to choose between a needed service and the
regular educational program. For this reason, in the bill the
committee has added ``location'' to the provision in the IEP
that includes ``the projected date for the beginning of
services and modifications, and the anticipated frequency,
location, and duration of those services'' (emphasis added).
The bill requires that the IEP include, beginning at age 14
``a statement of the transition service needs of the child
under the applicable components of the child's IEP that focuses
on the child's courses of study (such as participation in
advanced placement courses or a vocational education
program).'' The purpose of this requirement is to focus
attention on how the child's educational program can be planned
to help the child make a successful transition to his or her
goals for life after secondary school. This provision is
designed to augment, and not replace, the separate transition
services requirement, under which children with disabilities
beginning no later than age sixteen receive transition services
including instruction, community experiences, the development
of employment and other post-school objectives and, when
appropriate, independent living skills and functional
vocational evaluation. For example, for a child whose
transition goal is a job, a transition service could be
teaching the child how to get to the job site on public
transportation.
Current law is not clear on what is required when a child
with a disability attains the age of majority. In order to
clarify the situation, the IEP definition in the bill includes
a statement that the child has been informed of his or her
rights under part B, if any, that will transfer to the child
when he or she attains the age of majority. The bill clarifies
that when a child is considered incapable of making educational
decisions, the State will develop procedures for appointing the
parent or another individual to represent the interests of the
child. This transfer of rights is also addressed under section
615(m) in the bill.
Additionally, the bill requires that a child's IEP include
a statement of how the child's progress toward the annual goals
will be measured and how the child's parents will be regularly
informed of the child's progress toward those goals (by such
means as report cards) as often as parents are informed of
their nondisabled children's progress. The committee believes
that informing parents of children with disabilities as often
as other parents will, in fact, reduce the cost of informing
parents of children with disabilities and facilitate more
useful feedback on their child's performance. One method
recommended by the committee would be providing an IEP report
card with the general education report card, if the latter is
appropriate and provided for the child.
An IEP report card could also be made more useful by
including checkboxes or equivalent options that enable the
parents and the special educator to review and judge the
performance of the child.
An example would be to state a goal or benchmark on the IEP
report card and rank it on a multipoint continuum. The goal
might be, ``Ted will demonstrate effective literal
comprehension.'' The ranking system would then state the
following, as indicated by a checkbox: No progress; some
progress; good progress; almost complete; completed. Of course,
these concepts would be used by the school and the IEP team
when appropriate. This example is not intended to indicate the
committee's preference for a single means of compliance with
this requirement.
The bill's definition of the Individualized Education
Program team includes the parents of a child with a disability;
at least one regular education teacher of such child (if the
child is, or may be, participating in the regular education
environment); at least one special education teacher, or where
appropriate, at least one special education provider of such
child; a representative of the local educational agency who is
(a) qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs of
children with disabilities; (b) knowledgeable about the general
curriculum; and (c) knowledgeable about the availability of
resources of the local educational agency; an individual who
can interpret the instructional implications of evaluation
results, who may be a member of the team; at the discretion of
the parent or the agency, other individuals who have knowledge
or special expertise regarding the child, including related
services personnel as appropriate; and whenever appropriate,
the child with a disability. Very often, regular education
teachers play a central role in the education of children with
disabilities. In that regard the bill provides that regular
education teacher, participate on the IEP team, but this
provision is to be construed in light of the bill's proviso
that the regular education teacher, to the extent appropriate,
participate in the development of the IEP of the child. The
committee recognizes the reasonable concern that the provision
including the regular education teacher might create an
obligation that the teacher participate in all aspects of the
IEP team's work. The committee does not intend that to be the
case and only intends it to be the extent appropriate. The
committee wishes to emphasize thatthe ``support'' for school
personnel, which is stated in the child's IEP, is that support that
will assist them to help a particular child progress in the general
education curriculum.
Related services personnel should be included on the team
when a particular related service will be discussed at the
request of a child's parents or the school. Such personnel can
include personnel knowledgeable about services that are not
strictly special education services, such as specialists in
curriculum content areas such as reading. Furthermore, the
committee recognizes that there are situations that merit the
presence of a licensed registered school nurse on the IEP team.
The committee also recognizes that schools sometimes are
assumed to be responsible for all health-care costs connected
to a child's participation in school. The committee wishes to
encourage, to the greatest extent practicable and when
appropriate, the participation of a licensed registered school
nurse on the IEP team to help define and make decisions about
how to safely address a child's educationally related health
needs.
The bill also clarifies obligations in two areas. First,
nothing in section 614 may be construed to require the IEP team
to include information under one component of a child's IEP
that is already contained in another component. Second, section
614 requires that each LEA or State educational agency ensure
that the parents of each child with a disability are members of
any group that makes decisions on the educational placement of
their child. The committee expects that the majority of
placement decisions will be made by the IEP team, but in those
unique cases where it is not, the committee expects parents to
be involved in the group making the decision.
The bill requires that, at the beginning of every school
year, an IEP be in effect for each child with a disability
served by an LEA, a State agency, or an SEA. In the case of a
child with a disability aged 3 through 5 (or at the discretion
of the State educational agency, a 2-year old child with a
disability who will turn 3 during the school year), an
individualized family service plan that contains the
requirements described in section 636, and that is developed in
accordance with section 614, may serve as the child's IEP if
using that plan as the IEP is consistent with State policy and
agreed to by the agency and the child's parents.
The bill specifies that the LEA shall ensure that a child's
IEP team review a child's IEP periodically, but not less than
annually to determine whether the annual goals of the child are
being achieved; and revises the IEP as appropriate to address:
(1) any lack of expected progress toward the annual goals and
in the general education curriculum, where appropriate; (2) the
results of any reevaluation; (3) information provided by or to
the parents; (4) the child's anticipated needs; or (5) other
matters.
With regard to transition services in IEP's, the bill
provides that if an agency, other than the LEA, participating
in the child's education fails to provide the transition
services described in the child's IEP, the LEA must reconvene
the IEP team to identify alternative strategies to meet the
child's transition objectives.
In developing a child's IEP, the bill requires that the IEP
team consider the strengths of the child and the concerns of
the parents for enhancing the education of their child; and the
results of the initial evaluation or most recent evaluation of
the child. In addition, the committee believes that a number of
considerations are essential to the process of creating a
child's IEP. The purpose of the IEP is to tailor the education
to the child; not tailor the child to the education. If the
child could fit into the school's general education program
without assistance, special education would not be necessary.
The bill provides that, in the case of a child whose
behavior impedes the learning of the child or others, the IEP
team, as appropriate, shall consider strategies, including
positive behavior interventions strategies and supports, to
address that behavior. Similarly, in the case of a child with
limited English proficiency, the IEP team is to consider the
language needs of the child as such needs relate to the child's
IEP. In the case of a child who is blind or visually impaired,
the IEP team must provide for instruction in Braille and the
use of Braille unless the IEP team determines, after an
evaluation of the child's reading and writing skills, needs,
and appropriate reading and writing media (including an
evaluation of the child's future needs for instruction in
Braille or the use of Braille), that instruction in Braille or
the use of Braille is not appropriate for the child.
The team also is to consider the communication needs of the
child in order to ensure that local educational agencies better
understand the unique needs of children who are deaf or hard of
hearing. Section 614(d)(3)(B)(iv) includes special factors that
must be considered in developing IEP's for these children. The
policy included in the bill provides that, in the case of the
child who is deaf or hard of hearing, the IEP team must
consider the language and communication needs of the child;
opportunities for direct communication with peers and
professional personnel in the child's language and
communication mode; the child's academic level; and the child's
full range of needs, including the child's social, emotional,
and cultural needs and opportunities for direct instruction in
the child's language and communication mode. The committee also
intends that this provision will be implemented in a manner
consistent with the policy guidance entitled ``Deaf Students
Education Services,'' published in the Federal Register (57
Fed. Reg. 49274, October 30, 1992) by the U.S. Department of
Education.
The bill further requires that the IEP team consider the
provision of assistive technology devices and services when
developing the child's IEP.
Procedural safeguards
The procedural safeguards in the IDEA have historically
provided the foundation for ensuring access to a free
appropriate public education for children with disabilities.
Key to these due process procedures is the law's ``stay put''
provision, which this bill retains. The committee has added
clarifications to the procedural safeguard provisions to
facilitate conflict resolution, describe how schools may
discipline children with disabilities, and ensure that due
process is useful for all parents and schools.
The bill retains all provisions concerning the opportunity
to use, and the administrative procedures associated with, an
impartial due process hearing, and appeals through state-level
reviews, and the courts, as well as certain existing exceptions
to reductions in attorneys' fees.
The bill simplifies the process of delivering, and the
content of, notices to parents about their child's rights. The
committee hopes that these provisions will result in user-
friendly information that parents can understand.
In section 615 of the bill, provisions affecting possible
reduction of attorneys' fees to prevailing parents are retained
from current law. A provision has been added that would allow
parents' attorneys' fee to be reduced, if the attorney
representing the parents did not provide the LEA with specific
information about the child and the basis of the dispute;
specifically: (1) the name of the child, the address of the
residence of the child, and the name of the school the child is
attending; (2) a description of the nature of the problem of
the child relating to the proposed initiation or change,
including facts relating to that problem; and (3) a proposed
resolution of the problem, to the extent known and available to
the parents at the time. The committee believes that the
addition of this provision will facilitate an early opportunity
for schools and parents to develop a common frame of reference
about problems and potential problems that may remove the need
to proceed to due process and instead foster a partnership to
resolve problems.
The committee believes that the IEP process should be
devoted to determining the needs of the child and planning for
the child's education with parents and school personnel. To
that end, the bill specifically excludes the payment of
attorneys' fees for attorney participation in IEP meetings,
unless such meetings are convened as a result of an
administrative proceeding or judicial action.
Questions have been raised regarding the relationship
between the extent of success of the parents and the amount of
attorneys' fees a court may award. In addressing this question,
the committee believes the amount of any award of attorneys'
fees to a prevailing party under part B shall be determined in
accordance with the law established by the Supreme Court in
Hensley v. Eckerhart, 461 U.S. 424 (1983) and its progeny.
As we stated in the 1986 report accompanying the
legislation that added the attorneys' fees provisions: ``It is
the committee's intent that the terms `prevailing party' and
`reasonable' be construed consistent with the U.S. Supreme
Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 440
(1983). In this case, the Court held that:
the extent of a plaintiff's success is a crucial factor
in determining the proper amount of an award of
attorney's fees. Where the plaintiff has failed to
prevail on a claim that is distinct in all respects
from his successful claims, the hours spent on the
unsuccessful claim should be excluded in considering
the amount of a reasonable fee. Where a lawsuit
consists of related claims, a plaintiff who has won
substantial relief should not have his attorney's fees
reduced simply because the district court did not adopt
each contention raised. But where the plaintiff
achieved only limited success, the district court
should award only that amount of fees that is
reasonable in relation to the results obtained.
To encourage early resolution of problems whenever
possible, section 615 requires States to offer mediation as a
voluntary option to parents and LEA's as an initial process for
resolving disputes. However, the bill requires that a State's
mediation system may not be used to delay or deny a parents
right to due process. The bill allows SEA's and LEA's to
establish procedures to require parents who choose not to
engage in mediation to meet, at a time and place convenient for
them, with a disinterested party who would encourage and
explain the benefits of mediation. This individual would be
under contract with either a Parent Training and Information
Center funded under part D or an alternative dispute resolution
entity.
The committee believes that, in States where mediation is
not offered, mediation is proving successful both with and
without the use of attorneys. Thus, the committee wishes to
respect the individual State procedures with regard to attorney
use in mediation, and therefore, neither requests nor prohibits
the use of attorneys in mediation. The committee is aware that,
in States where mediation is being used, litigation has been
reduced, and parents and schools have resolved theirdifferences
amicably, making decisions with the child's best interest in mind. It
is the committee's strong preference that mediation become the norm for
resolving disputes under IDEA. The committee believes that the
availability of mediation will ensure that far fewer conflicts will
proceed to the next procedural steps, formal due process and
litigation, outcomes that the committee believes should be avoided when
possible. Section 615(e)(2)(B) of the bill provides that the State
shall maintain a list of individuals who are qualified mediators. The
committee intends that, whenever such a mediator is not selected on a
random basis from that list, both the parents and the agency are
involved in selecting the mediator, and are in agreement with the
individual who is selected. The committee further intends that any
individual who serves as an impartial mediator under part B of IDEA may
not be an employee of any local educational agency or State agency
described in section 613(h), and not be a person having a personal or
professional conflict of interest. Individuals who serve as mediators
under part C of this bill are expected to be selected in the same
manner described in this paragraph and to meet the same criteria of
impartiality with respect to employment in the lead agency and not
having a personal or professional conflict of interest. The committee
believes that mediators should be experienced, trained, and understand
the law. The committee clearly does not intend that all mediators be
attorneys. Section 615 also specifies that a State will bear the cost
of mediation.
The legislation requires that agreements reached in
mediation shall be put in writing. Furthermore, the amendments
require that discussions held in mediation would be
confidential and could not be used as evidence in any
subsequent due process hearing or civil action. However, the
committee intends that nothing in this bill shall supersede any
parental access rights under the Family Educational Rights and
Privacy Act of 1974 or foreclose access to information
otherwise available to the parties. Mediation parties may enter
into a confidentiality pledge or agreement prior to the
commencement of mediation. An example of such an agreement
follows:
a. The mediator, the parties, and their attorneys
agree that they are all strictly prohibited from
revealing to anyone, including a judge, administrative
hearing officer or arbitrator the content of any
discussions which take place during the mediation
process. This includes statements made, settlement
proposals made or rejected, evaluations regarding the
parties, their good faith, and the reasons a resolution
was not achieved, if that be the case. This does not
prohibit the parties from discussing information, on a
need-to-know basis, with appropriate staff,
professional advisors, and witnesses.
b. The parties and their attorneys agree that they
will not at any time, before, during, or after
mediation, call the mediator or anyone associated with
the mediator as a witness in any judicial,
administrative, or arbitration proceeding concerning
this dispute.
c. The parties and their attorneys agree not to
subpoena or demand the production of any records,
notes, work product, or the like of the mediator in any
judicial, administrative, or arbitration proceeding
concerning this dispute.
d. If, at a later time, either party decides to
subpoena the mediator or the mediator's records, the
mediator will move to quash the subpoena. The party
making the demand agrees to reimburse the mediator for
all expenses incurred, including attorney fees, plus
the mediator's then-current hourly rate for all time
taken by the matter.
e. The exception to the above is that this agreement
to mediate and any written agreement made and signed by
the parties as a result of mediation may be used in any
relevant proceeding, unless the parties agree in
writing not to do so. Information which would otherwise
be subject to discovery, shall not become exempt from
discovery by virtue of it being disclosed during
mediation.
Section 615 adds a provision that requires that five
business days prior to a due process hearing, each party
disclose to other parties all evaluations completed by that
date and recommendations associated with those evaluations that
are to be used at the hearing. If any party fails to provide
such information within the time specified in the bill, the
hearing officer may bar that party from introducing the
relevant evaluation or recommendation at the hearing without
the consent of the other party.
Section 615(j) provides that, except as provided in
615(k)(7), during the pendency of any proceedings conducted
pursuant to section 615, unless the State or LEA and the
parents otherwise agree, the child shall remain in the then
current educational placement of such child, or if applying for
initial admission to a public school, shall, with the consent
of the parents, be placed in the public school program, until
all such proceedings have been completed.
The committee recognizes that school safety is important to
educators and parents. There has been considerable debate and
concern about both if and how those few children with
disabilities who affect the school safety of peers, teachers,
and themselves may be disciplined when they engage in behaviors
that jeopardize such safety. In addition, the committee is
aware of the perception of a lack of parity when making
decisions about disciplining children with and without
disabilities who violate the same school rule or code of
conduct. By adding a new section 615(k) to IDEA, the committee
has attempted to strike a careful balance between the LEA's
duty to ensure that schoolenvironments are safe and conducive
to learning for all children, including children with disabilities, and
the LEA's continuing obligation to ensure that children with
disabilities receive a free appropriate public education. Thus, drawing
on testimony, experience, and common sense, the committee has placed
specific and comprehensive guidelines on the matter of disciplining
children with disabilities in this section.
It is the committee's intent that this set of practical and
balanced guidelines reinforce and clarify the understanding of
Federal policy on this matter, which is currently found in the
statue, case law, regulations, and informal policy guidance. By
placing all pertinent guidance in one place, the committee
anticipates that educators will have a better understanding of
their areas of discretion in disciplining children with
disabilities and that parents will have a better understanding
of the protections available to their children with
disabilities.
The bill codifies current law by allowing school personnel
to order a change in the placement of a child with a disability
to an appropriate interim alternative educational setting,
another setting, or suspension, for not more than 10 school
days (to the extent such alternatives would be applied to
children without disabilities). The bill also provides two
exceptions to the pendency provision under section 615(j).
First, the bill allows school personnel to order a change in
the placement of a child with a disability to an appropriate
interim alternative educational setting for the same amount of
time that a child without a disability would be subject to
discipline, but for not more than 45 days, if the child carries
a weapon to school or to a school function under the
jurisdiction of a State or an LEA; or the child knowingly
possesses or uses illegal drugs or sells or solicits the sale
of a controlled substance while at school or a school function
under the jurisdiction of a State or an LEA. The appropriate
interim alternative educational setting shall be determined by
the IEP team.
The bill requires that, either before or not later than 10
days after taking such a disciplinary action, if the LEA did
not conduct a functional behavioral assessment and implement a
behavioral intervention plan for such child before the behavior
that resulted in the suspension, the agency shall convene an
IEP meeting to develop an assessment plan to address that
behavior; or, if the child already has a behavior intervention
plan, the IEP team shall review the plan and modify it, as
necessary, to address the behavior.
Under the second exception to the pendency provision, a
hearing officer is permitted to order a change in the placement
of a child with a disability to an appropriate interim
alternative educational setting for not more than 45 days if
the impartial hearing officer determines at the hearing that
the public agency has demonstrated by substantial evidence that
maintaining the current placement of the child is substantially
likely to result in injury to the child or to others; considers
the appropriateness of the child's current placement; considers
whether the public agency has made reasonable efforts to
minimize the risk of harm in the child's current placement,
including the use of supplementary aids and services; and
determines that the interim alternative educational setting
enables the child to continue to participate in the general
education curriculum, although in another setting, and to
continue to receive those services and modifications, including
those described in the child's current IEP, that will enable
the child to meet the goals set out in that IEP; and includes
services and modifications designed to address the behavior so
that it does not recur.
The standard ``substantially likely to result in injury to
the child or others'' codifies the standard established by the
Supreme Court in Honig v. Doe. The bill requires the impartial
hearing officer to consider the appropriateness of the child's
placement and efforts by the school district to minimize the
risk of harm in the child's current placement, including
through use of supplementary aids and services. If the school
district has failed to provide the child an appropriate
placement or to make reasonable efforts to minimize the risk of
harm, the appropriate response by an impartial hearing officer
is to deny the school district's request to move the child to
an alternative setting and to require the district to provide
an appropriate placement and make reasonable efforts to
minimize the risk of harm. Thus, it will not be permissible to
move a child when the child's behavior can be addressed in the
current placement.
Section 615(k)(10)(C) defines the term ``substantial
evidence'' as used in section 615(k). The term means evidence
that is beyond a preponderance of the evidence. The standard in
615(k)(2)(A) that maintaining a child in the current placement
is substantially likely to result in injury to the child or
others codifies the standard set by the Supreme Court in Honig
v. Doe.
The bill requires that, if a disciplinary action is
contemplated either as described in the preceding paragraphs
for a behavior of a child with disability or if involving a
change in placement for more than 10 school days for a child
with a disability who has engaged in other behavior that
violated any rule or code of conduct of the LEA that applies to
all children, not later than the date on which the decision to
take that action is made, the parents shall be notified of that
decision and of all procedural safeguards accorded under
section 615 of IDEA. In addition, immediately, if possible, but
in no case later than 10 school days after the date on which
the decision to take that action, a review shall be conducted
by the IEP team and other qualified personnel of the
relationship between the child's disability and the behavior
subject to the disciplinary action.
The bill allows for a change of setting for the educational
services provided a child with disability in the two specific
circumstances identified above, but it does not change the
other requirements of the act. The bill describes the standards
that that setting--the interim alternative educational
setting--must meet. It must be a setting, although a different
setting, where the child can continue to participate in the
general curriculum, and continue to receive the general
curriculum services and modifications, including those in the
child's current IEP, so that the child can meet the goals of
that IEP, and it must include services or modifications
designed to address (so that it does not recur) the behavior
that led to the child's placement in the interim alternative
educational setting.
The bill prescribes the relevant information that must be
considered by the IEP team in carrying out a review in terms of
the behavior subject to the disciplinary action--all relevant
information, including evaluation and diagnostic results,
including relevant information supplied by the parents,
observations of the child, and the child's IEP and placement.
The committee limits the scope of this review by including the
phrases ``in relationship to the behavior subject to
disciplinary action'' and ``behavior subject to disciplinary
action''.
In addition, this section prescribes, also in terms of the
behavior subject to disciplinary action, the standards for
determining whether or not the behavior of the child was a
manifestation of the child's disability:
The IEP team must determine that--
(1) in relationship to the behavior subject to
disciplinary action, the child's IEP and placement were
appropriate, and special education and related
services, and supplementary aids and services, and
behavior intervention strategies were provided
consistent with the child's IEP and placement;
(2) the child's disability did not impair the ability
of the child to understand the impact and consequences
of the behavior subject to disciplinary action; and
(3) the child's disability did not impair the ability
of the child to control the behavior subject to
disciplinary action.
The committee offers the following clarification with
respect to the first standard in section 615(k)(4)(C)(ii). This
standard recognizes that where there is a relationship between
a child's behavior and the failure to provide or implement an
IEP or placement, the IEP team must conclude that the behavior
was a manifestation of the child's disability. Similarly, where
the IEP team determines that an appropriate placement and IEP
were provided, the IEP team must then determine that the
remaining two standards have been satisfied. This section is
not intended to require in IEP team to find that a child's
behavior was a manifestation of a child's disability based on a
technical violation of the IEP or placement requirements that
are unrelated to the educational/behavior needs of the child.
Section 615(k)(5) of the legislation codifies current law,
which permits a public agency to apply to a child whose
behavior is not a manifestation of the child's disability the
same disciplinary procedures that apply to children without
disabilities. This section must be construed in light of the
act's obligation not to terminate services to children with
disabilities and the pendency provision. A child with a
disability would not be subject to disciplinary action for
behavior that was a manifestation of the child's disability.
To promote the timely sharing of relevant information,
section 615(k) of the bill requires that, if the public agency
initiates disciplinary procedures applicable to all children,
the agency shall ensure that the special education and
disciplinary records of the child with a disability are
transmitted for consideration by the person or persons making
the final determination regarding the disciplinary action.
The committee also addresses parents' appeal options in
section 615(k) of the bill. If parents disagree with a
determination that the child's behavior was not a manifestation
of the child's disability or with any decision regarding
placement, the parents may request a hearing. In such a case,
the State or LEA shall arrange for an expedited hearing.
In reviewing a decision with respect to the manifestation
determination in an expedited hearing, the hearing officer
shall determine whether the public agency has demonstrated that
the child's behavior was not a manifestation of such child's
disability consistent with the requirements of paragraph
(4)(C), used by an IEP team when determining whether a behavior
is or is not a manifestation of the disability. That is, the
hearing officer in an expedited hearing, would determine that
(1) in relationship to the behavior subject to disciplinary
action, the child's IEP and placement were appropriate, and
special education services and related services, supplementary
aids and services, and behavior intervention strategies were
consistent with the child's IEP; (2) the child's disability did
not impair the ability of the child to understand the impact
and consequences of the behavior subject to disciplinary
action; and (3) the child's disability did not impair the
ability of the child to control the behavior subject to
disciplinary action.
The bill requires that, before a hearing officer in an
expedited due process hearing selects an interim alternative
educational setting for a child, the officer is to: determine
if the public agency has demonstrated by substantial evidence
that maintaining the current placement of the child
issubstantially likely to result in injury to the child or to others;
consider the appropriateness of the child's current placement; consider
whether the public agency has made reasonable efforts to minimize the
risk of harm in the child's current placement, including the use of
supplementary aids and services; and determine that the interim
alternative educational setting meets two requirements. First, it must
enable the child to continue to participate in the general education
curriculum, although in another setting, and to continue to receive
those services and modifications, including those described in the
child's current IEP, that will enable the child to meet the goals set
out in that IEP; and second, it must include services and modifications
designed to address the behavior subject to discipline so that it does
not recur.
When parents request a hearing regarding a disciplinary
action with respect to weapons, illegal drugs, or a controlled
substance or actions that are substantially likely to result in
injury to the child or others or to challenge the interim
alternative educational setting or the manifestation
determination, the child shall remain in the interim
alternative educational setting pending the decision of the
hearing officer or until the expiration of the time period
provided for i.e., the same amount of time that a child without
a disability would be subject to discipline but not more than
45 days) in section 615 (1)(A)(ii) or (2) of the bill,
whichever occurs first, unless the parents and the State of LEA
agree otherwise.
If a child is placed in an interim alternative educational
setting for the reasons described in Section 615(k) (1)(ii) or
(2) and school personnel propose to change the child's
placement after expiration of the interim alternative
educational placement, during the pendency of any proceeding to
challenge the proposed change in placement, the child shall
remain in the current placement (i.e.; the child's placement
prior to the interim alternative educational setting). In the
bill the committee allows an exception. If school personnel
maintain that is dangerous for the child to be in the current
placement (placement prior to removal to the interim
alternative educational setting) during the pendency of the due
process proceedings, the district may request an expedited
hearing.
In determining whether the child may be placed in the
alternative educational setting or in another appropriate
placement ordered by the hearing officer, the hearing officer
shall apply the standards set out above. That is, the officer
is to: (1) determine if the public agency has demonstrated by
substantial evidence that permitting the child to return to his
or her current placement (the child's placement prior to the
interim alternative educational setting); is substantially
likely to result in injury to the child or to others; (2)
consider the appropriateness of the child's current placement
(the child's placement prior to the interim alternative
educational setting); (3) consider whether the public agency
has made reasonable efforts to minimize the risk of harm in the
child's current placement (the child's placement prior to the
interim alternative educational setting), including the use of
supplementary aids and services; and (4) determine that the
continued use of an interim alternative educational setting
meets these requirements: (a) enables the child to continue to
participate in the general education curriculum, although in
another setting other than the original placement, and to
continue to receive those services and modifications, including
those described in the child's current IEP, that will enable
the child to meet the goals set out in that IEP; and (b)
includes services and modifications designed to address the
behavior subject to discipline so that it does not recur.
In the bill, the committee addresses the issue of
disciplining children not yet eligible under part B of the
IDEA. A child who has not been determined to be eligible for
special education and related services under part B and who has
engaged in behavior that violated any rule or code of conduct
of the LEA may assert any of the protections provided for in
part B of IDEA, if the LEA had knowledge that the child was a
child with a disability before the behavior that precipitated
the disciplinary action occurred. An LEA shall be deemed to
have had knowledge that a child is a child with a disability if
the parents of the child have expressed concern in writing
(unless the parents are illiterate or have a disability that
prevents compliance with the requirements of this clause) to
personnel of the appropriate educational agency that the child
needs special education and related services; the behavior or
performance of the child demonstrates the need for such
services; the parent of the child has requested an evaluation
of the child under section 614, or the child's teacher, or
other LEA personnel, has expressed concern about the behavior
or performance of the child to the director of special
education or to other agency personnel.
If an LEA does not have knowledge, or could not reasonably
have known, that a child is a child with a disability prior to
taking disciplinary measures against the child, the child may
be subjected to the same disciplinary measures applied to
children without disabilities, who engaged in comparable
behaviors, consistent with section 615(k)(2) pertaining to the
authority of a hearing officer.
If a request is made for an evaluation of a child during
the time period in which the child is subject to disciplinary
measures, the evaluation shall be conducted in an expedited
manner. If the child is determined to be a child with
disability, taking into consideration information from the
evaluation conducted by the agency and information provided by
the parents, the agency shall provide special education and
related services in accordance with part B, except that,
pending the results of the evaluation, the child shall remain
in the educational placement determined by school authorities.
In the bill, the committee clarifies that nothing in part B
shall be construed to prohibit an agency from reporting a crime
committed by a child with a disability to appropriate
authorities or to prevent State law enforcement and judicial
authorities from exercising their responsibilities with regard
to the application of Federal and State law to crimes committed
by a child with a disability. An agency reporting a crime
committed by a child with a disability shall ensure that copies
of the special education and disciplinary records of the child
are transmitted for consideration by the appropriate
authorities to whom it reports the crime.
The ensure uniformity in the application of the provisions
that have safety implications in section 615(k), the terms
``controlled substance,'' ``illegal drug,'' and ``weapon'' have
been defined in the bill. ``Controlled substance'' means a drug
or other substance identified under schedules I, II, III, IV,
or V in section 202(c) of the Controlled Substances Act (21
U.S.C. 812(c)). The term ``illegal drug'' means a drug or other
substance identified under schedules I, II, III, IV, or V in
section 202(c) of the Controlled Substances Act (21 U.S.C.
812(c)), but does not include such a substance that is legally
possessed or used under the supervision of a licensed health-
care professional or that is legally possessed or used under
any other authority under the Controlled Substance Act or under
any other provision of Federal law. ``Weapon'' means a weapon,
device, instrument, material, or substance, animate or
inanimate, that is used for, or is readily capable of, causing
death or serious bodily injury, except that such term does not
include a pocket knife with a blade of less than 2\1/2\ inches
in length.
Withholding and judicial review
The committee recognizes and fully expects that the
Secretary will utilize the board enforcement authority
available for ensuring compliance with and implementation by
State educational agencies with the applicable provisions of
part B. The bill authorizes the Secretary to withhold part B
funds, in whole or in part, from States that are not in
compliance with part B. Thus, based on the nature and degree of
noncompliance, the Secretary may determine the level of funding
to be withheld and the type of funding to withhold e.g., the
entire State set-aside or the set-aside for administrative
purposes).
The committee expects the Secretary to initiate actions to
ensure enforcement, including the reexamination of current
Federal monitoring and compliance procedures to improve the
implementation of the law, and a subsequent annual report to
Congress which evaluates the impact of the improved procedures
on compliance. The committee also expects that the Secretary's
reexamination of current enforcement procedures will place
strong emphasis on: (1) including parents in the state
monitoring process; (2) focusing monitoring efforts on the
issues that are most critical to ensuring appropriate education
to children with disabilities, and (3) timely follow-up to
ensure that a State has taken appropriate action to demonstrate
compliance with the law.
In addition, the Secretary may initiate other actions to
ensure enforcement, such as requiring the State to submit a
detailed plan for achieving compliance, imposing special
considerations on the State's part B grant, referring the
matter to the Department of Justice for appropriate enforcement
action, and other enforcement actions authorized by law.
The committee has included in express reference ``referral
to the Department of Justice'' in section 616(a)(1)(B) to the
authority now in current law of the Department of Education to
refer instances of noncompliance to other agencies. In
reiterating this authority, the committee does not intend to
expand present enforcement powers of any other Department, nor
establish any new rights of action against State or local
governments, education agencies, or private parties.
Similar enforcement authorities exist for States to ensure
that local educational agencies meet their responsibilities
under the Individuals with Disabilities Education Act.
Data collection
The legislation substantially streamlines the current data
collection requirements by eliminating reporting on the
services needed, by disability category, for children leaving
the educational system, and the number and type of personnel
employed and data on current and projected personnel needs. New
reporting requirements are added in the bill for, the number of
children moved to interim alternative educational settings, and
the number of infants and toddlers at risk of developing
developmental delays. The bill allows the Secretary of
Education discretion to allow States and the Secretary of the
Interior to collect needed data through sampling.
Because of the committee's desire to see the problem of
over identification of minority children addressed the bill
requires States to provide for the collection and examination
of data to determine if significant disproportionality based on
race is occurring with respect to particular disability
categories or types of educational setting.
The preschool program
The legislation amends the section 619 Preschool Grants
program to conform with the funding formula changes for the
section 611 Grants to States program. Under the news formula,
no Statewould receive less than it received in fiscal year
1997. Beginning in fiscal year 1998, all new appropriations above the
FY 97 level will be 85 percent based on the general population of
children aged 3 through 5, and 15 percent on the poverty rate in the
State. The formula also includes the same minimum and maximum
allocation provisions that apply to the new formula under the Grants to
States program. These provisions ensure that every State receives part
of any increase, and there is no radical shift in resources.
The legislation would eliminate funding for the Outlying
Areas under the Preschool Grants program and add an amount
equivalent to the amount received in fiscal year 1997 to the
fiscal year 1998 allocations the Outlying Areas would otherwise
receive under the Grants to States program. This would maintain
overall funding for the Outlying Areas while eliminating
paperwork associated with their allocations under the Preschool
Grants program, which is unduly burdensome for the Outlying
Areas given the nominal amount of funding involved.
Unlike the Grants to States program, the new funding
formula for Preschool Grants takes effect on July 1, 1998.
Amendments to part C of the Individuals with Disabilities Education Act
The bill reorganizes part H which authorizes the early
intervention program as part C.
The committee continues to recognize the importance of
early intervention for infants and toddlers with disabilities
from birth through age two. Infants and toddlers with
disabilities whose families receive early intervention services
often need less intensive services when they reach school age.
The committee believes that it is in the best interest of the
infants and toddlers, their families, schools, and society in
general that these services continue to be provided.
The bill retains current law and adds clarifications with
regard to a State is discretion when it elects to address the
needs of infants and toddlers at risk of having substantial
developmental delays if they do not receive early intervention
services. To provide greater flexibility in addressing the
needs of ``at-risk infants and toddlers'' in those States not
currently serving such children, the bill permits a State to
use its part C funds for initiating, expanding, or improving
collaborative efforts related to at-risk infants and toddlers,
including: establishing linkages with public and private
organizations, services and personnel for identifying and
evaluating at-risk infants and toddlers; referring those
children to other (nonpart C) services; and conducting periodic
follow-ups on each referral to determine if the child's
eligibility under part C has changed.
While the provision in the preceding paragraph applies only
to States that do not serve at-risk infants and toddlers under
part C, States that are serving those infants and toddlers may
carry out these activities as well, under the general authority
to use part C funds to implement the components of statewide
systems. The provision addressed in the preceding paragraph is
intended to provide both clear authority and an incentive for
States that are not serving at-risk infants and toddlers, not
to penalize States already doing so.
The committee has addressed the serious problem of
personnel shortages in the provision of early intervention
services. The bill adds a provision that allows
paraprofessionals and assistants, who are appropriately trained
and supervised, in accordance with State law and regulations,
or written policy, to assist in the provision of early
intervention services to infants and toddlers with disabilities
under part C. With regard to personnel standards, the bill, as
does current law, clarifies that, to the extent that the
standards met by providers of early intervention services in a
State are not based on the highest requirements in the State
applicable to a specific profession or discipline, the State is
to take steps to require the retraining or hiring of personnel
that meet appropriate professional requirements in the State.
In addition, the bill in part C clarifies this State
responsibility in a manner that conforms to parallel language
in part B.
The bill describes the assurances a State must submit as
part of its application for funding under part C.
The bill clarifies that part C is truly the payer of last
resort even for military families who are eligible for medical
programs administered by the Department of Defense. The
committee does not intend to change the types of services that
are currently covered by DOD programs nor expect that the
services covered under DOD medical programs will change.
Changes are made to the provisions for submission of State
applications, consistent with similar changes in part B.
The bill includes an authorization level for part C of $400
million. The committee recognizes the effort, both fiscally and
programmatically, that all States are making through part C and
the current Federal/State partnership in this important effort.
Amendments to part D of the Individuals with Disabilities Education Act
Discretionary programs in IDEA, which fund personnel
training, research, systematic change activities, parent
training and information centers, technical assistance, and
media and technology initiatives to assist children with
disabilities, have evolved since the act's original passing to
cover a variety of particular needs. Many of these needs
continue to this day, while others have receded.
Current law authorizes nineteen funded and unfunded
discretionary programs. This legislation consolidates these
programs into four broad areas. The committee believes that by
creating a refocused national program for discretionary
programs, such programs will be more strategically able to
assist States, and local communities, to maintain and improve
their capacity to reach and serve infants, toddlers, and
children with disabilities.
The act creates a new part D, National Activities to
Improve Education of Children with Disabilities. Subpart 1 of
part D authorizes new State Program Improvement Grants. This
subpart 1 establishes a new system of grants to improve results
for children with disabilities through systemic reform with an
emphasis on personnel training. State educational agencies, in
close cooperation with their ``contractual partners,'' local
educational agencies, and parents of children with and without
disabilities, individuals with disabilities, the Governor, and
other State and local agencies, organizations, and institutions
concerned with the needs of and services for children with
disabilities shall develop an improvement plan after
identifying the State's needs in several areas; these include
assessing children with disabilities and their performance,
training and personnel needs, and evaluating system
effectiveness. States that receive these competitive grants
will be able to use funds to implement the improvement
strategies they have proposed in their plan which will be based
on the needs of the State's children with disabilities and the
nature of the State's capacity and methods of serving these
children.
The legislation requires that 75 percent of State Program
Improvement Grant funds be used for personnel training. This
reflected the committee's desire that subpart 1 grants be a
primary means of supporting personnel training, complemented by
an authorization for additional, but targeted, personnel
training initiatives in subpart 2, chapter 1 of part D. The
rationale for focusing personnel training funds at the State
level through subpart 1, State Program Improvement Grants, is
an attempt to improve results for children with disabilities
through addressing personnel training needs of States, as
identified and defined by a State, not by the Federal
Government.
Under the current program, universities receive grants
based on applications made to the Department of Education.
These applications generally focus on pre-service training for
special education teachers. In many States, the greatest need
for training is for in-service training for general and special
education teachers, and for pre-service training in addressing
the special instructional needs of children with disabilities,
including their integration in regular education classes, for
future general education personnel. The committee believes
that, by targeting State Program Improvement Grant funds as it
has, appropriate training for teachers addressing the learning
needs of children with disabilities, especially general
education teachers in early grades, will help reduce
inappropriate referrals to special education of learning
disabled children and improve results for children with
disabilities served by both general and special educational
personnel. Instead of learning from a teacher whose abilities
cannot properly meet the child's particular needs, learning
disabled children will have been taught in a manner that they
can understand from teachers whose training permitted them to
understand that child's learning style.
In part D, subpart 2, the committee authorizes Coordinated
Research, Personnel Preparation, Technical Assistance, Support,
and Dissemination of Information. The committee intends that
the new Chapter 1 National Research and Innovation Activities
Program lead to a new coordinated effort in special education
research and grant activities. Section 661 in the bill contains
the administrative provisions. In this section the Secretary of
Education is provided with both direction and flexibility that
the committee believes will facilitate the development of a
comprehensive plan to guide the distribution of funds under
subpart 2. Stakeholders will have direct input in developing
the plan. As in current law, in the bill each major grant
competition requires peer review, to promote the selection of
high quality applicants for funding that will be responsive to
the needs identified in a particular competition. The committee
intends that the Secretary's planning process establish a new
coordinated system of funding to reflect what the stakeholders
collectively view as funding priorities.
The bill authorizes research and targeted training
activities. The bill provides wide flexibility in terms of
funding for research, distinguishing among funding for
knowledge production, integration of research knowledge and
practice, and the use of professional knowledge. The committee
believes strongly that an organized, collective commitment to
get validated research--best practice information--to the
teacher in the classroom is essential. Thus, the committee
anticipates that the substance and organization of these
provisions pertaining to research will facilitate such an
outcome.
The bill authorizes funding for targeted personnel
preparation activities related to preparing personnel to serve
children with low-incidence and high-incidence disabilities,
leadership personnel, and projects of national significance.
The focus of the latter projects will be to develop and
demonstrate effective and efficient practices; to apply
research findings in personnel preparation,demonstrate
effective models for preparing personnel; to reduce shortages of
personnel, and develop, evaluate, and disseminate model teaching
standards; as well as to develop and disseminate models that prepare
teachers with strategies, including behavioral interventions, for
addressing the conduct of children with disabilities that impedes their
learning and that of others; to fund institutes for professional
development, activities promoting the transfer of certification
requirements across States; and selected other activities, including
projects to improve the ability of general education personnel--
teachers, principals, and administrators--to meet the needs of children
with disabilities. The bill specifies that high-incidence personnel
preparation activities, including those conducted by local educational
agencies and other local entities, are to address improvement and
reform of existing training programs and the incorporation of best-
practices and research-based knowledge into these training programs.
The bill directs the Secretary to undertake a national
assessment of the Nation's systems of providing services to
infants, toddlers, and children with disabilities and their
families. The Secretary is to prepare recommendations for
improving these systems in a fashion that will be useful to the
107th Congress, as it considers the effectiveness of these
amendments in improving services for children with disabilities
and whether further changes are needed. In addition, the
Secretary is authorized to conduct longitudinal studies and to
provide technical assistance directly to local educational
agencies.
The bill retains the authority, substantially unchanged
from current law, to fund the Parent Training and Information
Centers. The bill adds authority to fund local parent
organizations, referred to in the bill as ``community parent
resource centers''. The committee recognizes the substantial
contribution that State Parent Training and Information
Centers, and local parent organizations have made, in educating
parents about the IDEA, and especially in responding to parents
of diverse racial, cultural, and linguistic backgrounds. The
committee anticipates that, by working in tandem, the state-
level and community-based grantees will be able to reach even
more parents, many of whom are isolated by geographic, social,
language, cultural, or racial factors.
The bill retains the authority for the Secretary to fund
Regional Resource Centers, and clearinghouses, and other
programs to help State and local entities build capacity to
serve infants, toddlers, and children with disabilities and
their families. It also retains the Secretary's authority to
fund systemic technical assistance to assist with the
implementation of State program improvement grants, promoting
change through multistate and regional frameworks that benefit
State and local educational agencies, and the collection and
dissemination to a wide range of stakeholder audiences.
The bill retains the authority of the Secretary to fund
projects related to the development, demonstration, and use of
technology. It also retains the authority to fund educational
media services. The authority extends support for video
description, open captioning, and closed captioning of
television programs, videos, or educational materials. On
October 1, 2001, such support will cover video description,
open captioning and closed captioning of educational, news, and
informational television, videos, or materials. By that point,
the committee anticipates that the transition toward privately
financed captioning of all broadcast television will be well
underway, because of the publication of, and expected
compliance with, the Federal Communication Commission's
regulations on the subject in August 1997.
TITLE II--MISCELLANEOUS PROVISIONS
Title II repeals and extends provisions of the IDEA
consistent with the amendments in title I of the bill. Title II
also provides that most amendments to parts A and B will be
effective on the date of enactment. It provides that part C and
sections 612(a)(4), 612(a)(14), 612(a)(16), 614(d) (except for
paragraph (6)), and 618 of part B will be effective on July 1,
1998. It provides that amendments to part D, the new
discretionary programs, and section 617 of part B will take
effect October 1, 1997 consistent with the start of the Federal
fiscal year 1998.
Title II establishes that section 618 of IDEA as in effect
on the day before enactment, and the provisions of parts A and
B of IDEA relating to IEP's and the State's comprehensive
system of personnel development, as so in effect, shall remain
in effect until July 1, 1998. It provides that beginning on
October 1, 1997, the Secretary of Education may use funds
appropriated under part D of IDEA as in effect on the day prior
to enactment to make continuation awards for projects that were
funded under section 618 and parts C through G of IDEA as in
effect on September 30, 1997. Part I, the Family Support
Program, will be authorized through September 30, 1998 as part
of IDEA.
VI. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 9, 1997.
Hon. James M. Jeffords,
Chairman, Committee on Labor and Human Resources, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 717, the Individuals
with Disabilities Act Amendments of 1997.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Justin Latus
who can be reached at 226-2820.
Sincerely,
June E. O'Neill, Director.
Enclosure.
S. 717--Individuals with Disabilities Education Act Amendments of 1997
as ordered reported by the Senate Committee on Labor and Human
Resources on May 7, 1997
Summary: S. 717 would revise the Individuals with
Disabilities Education Act (IDEA) and would reauthorize funding
for many of the programs that fall under the act. The purposes
of S. 717 are to ensure that children with disabilities receive
a free appropriate public education that is designed to meet
their needs and prepare them for employment, to assist states
and localities in providing education for children with
disabilities, and to assess the effectiveness of efforts to
educate children with disabilities.
The bill would give states the option to expand the
definition of developmentally disabled children to include
children aged 6 to 9, and in doing so would increase
authorizations of appropriations for the permanently authorized
general grants to states program by about $200 million a year.
S. 717 would reduce authorizations of appropriations for the
permanently authorized preschool grant program by $400 million
in 1998.
S. 717 would also reauthorize several programs that have
expired, including the infants and toddlers program and the
special purpose funds. The bill would reauthorize the special
purpose funds and also consolidate fourteen separate programs
that received an appropriation in 1997 into five new programs.
These reauthorizations total $700 million to $800 million a
year.
This cost estimate describes what S. 717 would authorize
for spending on programs under the Individuals With
Disabilities Education Act. Since all IDEA spending is
discretionary, however, the amount that will actually be spent
on this program will be determined in the annual appropriations
process. For example, although total authorizations of
appropriations under S. 717 in fiscal year 1998 are $16
billion, the program was funded at $4 billion in fiscal year
1997.
The provisions of S. 717 are excluded from consideration
under the Unfunded Mandates Reform Act because they would
``establish or enforce statutory rights that prohibit
discrimination on the basis of * * * handicap, or disability.''
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 717 is shown in the following tables.
TABLE 1. ESTIMATED BUDGETARY IMPACT OF S. 717
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
WITH ADJUSTMENTS FOR INFLATION
Authorizations of appropriations under current law:
Estimated authorization......................... 4,036 15,927 16,664 17,424 18,224 19,064
Estimated outlays............................... 3,320 4,988 12,394 15,924 17,239 18,030
Proposed changes:
Estimated authorization......................... 0 523 952 982 1,013 1,045
Estimated outlays............................... 0 52 409 800 955 1,005
Authorizations of appropriations under S. 717:
Estimated authorization......................... 4,036 16,449 17,616 18,406 19,237 20,109
Estimated outlays............................... 3,320 5,040 12,803 16,724 18,194 19,035
WITHOUT ADJUSTMENTS FOR INFLATION
Authorizations of appropriations under current law:
Estimated authorization......................... 4,036 15,927 16,664 17,424 18,224 19,064
Estimated outlays............................... 3,320 4,988 12,394 15,924 17,239 18,030
Proposed changes:
Estimated authorization......................... 0 523 933 943 953 964
Estimated outlays............................... 0 52 407 784 920 951
Authorizations of appropriations under S. 717:
Estimated authorization......................... 4,036 16,449 17,596 18,367 19,177 20,029
Estimated outlays............................... 3,320 5,040 12,801 16,709 18,159 18,981
----------------------------------------------------------------------------------------------------------------
Notes. The 1997 levels are the amounts appropriated. Components may not sum to totals because of rounding.
The costs of this legislation fall within budget function
500 (education, training, employment, and social services).
TABLE 2. ESTIMATED BUDGETARY IMPACT OF S. 717 BY PART, WITH ADJUSTMENTS FOR INFLATION
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Part B--General grants:
Estimated authorization......................... 0 204 214 224 234 245
Estimated outlays............................... 0 20 144 201 221 232
Part B--Preschool grants:
Estimated authorization......................... 0 -400 0 0 0 0
Estimated outlays............................... 0 -40 -240 -100 -20 0
Part C:
Estimated authorization......................... 0 400 411 422 433 445
Estimated outlays............................... 0 40 281 389 419 430
Part D--Subpart 1:
Estimated authorization......................... 0 104 107 110 113 116
Estimated outlays............................... 0 10 73 101 109 112
Part D--Subpart 2, section 672:
Estimated authorization......................... 0 110 113 116 119 122
Estimated outlays............................... 0 11 77 107 115 118
Part D--Subpart 2, section 673:
Estimated authorization......................... 0 50 51 53 54 56
Estimated outlays............................... 0 5 35 49 52 54
Part D--Subpart 2, section 686:
Estimated authorization......................... 0 25 26 26 27 28
Estimated outlays............................... 0 3 18 24 26 27
Part D--Subpart 2, section 687:
Estimated authorization......................... 0 30 31 32 32 33
Estimated outlays............................... 0 3 21 29 31 32
Part D--Subtotal:
Estimated authorization......................... 0 319 328 336 345 355
Estimated outlays............................... 0 32 224 310 334 343
Total:
Estimated authorization......................... 0 523 952 982 1,013 1,045
Estimated outlays............................... 0 52 409 800 955 1,005
----------------------------------------------------------------------------------------------------------------
Notes. The 1997 levels are the amounts appropriated. Components may not sum to totals because of rounding.
TABLE 3. ESTIMATED BUDGETARY IMPACT OF S. 717 BY PART, WITHOUT ADJUSTMENTS FOR INFLATION
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Part B--General grants:
Estimated authorization......................... 0 204 214 224 234 245
Estimated outlays............................... 0 20 144 201 221 232
Part B--Preschool grants:
Estimated authorization......................... 0 -400 0 0 0 0
Estimated outlays............................... 0 -40 -240 -100 -20 0
Part C:
Estimated authorization......................... 0 400 400 400 400 400
Estimated outlays............................... 0 40 280 380 400 400
Part D--Subpart 1:
Estimated authorization......................... 0 104 104 104 104 104
Estimated outlays............................... 0 10 73 99 104 104
Part D--Subpart 2, section 672:
Estimated authorization......................... 0 110 110 110 110 110
Estimated outlays............................... 0 11 77 105 110 110
Part D--Subpart 2, section 673:
Estimated authorization......................... 0 50 50 50 50 50
Estimated outlays............................... 0 5 35 48 50 50
Part D--Subpart 2, section 686:
Estimated authorization......................... 0 25 25 25 25 25
Estimated outlays............................... 0 3 18 24 25 25
Part D--Subpart 2, section 687:
Estimated authorization......................... 0 30 30 30 30 30
Estimated outlays............................... 0 3 21 29 30 30
Part D--Subtotal:
Estimated authorization......................... 0 319 319 319 319 319
Estimated outlays............................... 0 32 223 303 319 319
Total:
Estimated authorization......................... 0 523 933 943 953 964
Estimated outlays............................... 0 52 407 784 920 951
----------------------------------------------------------------------------------------------------------------
Notes. The 1997 levels are the amounts appropriated. Components may not sum to totals because of rounding.
Basis of estimate: The spending that would occur under S.
717 would be subject to the availability of appropriated funds.
Estimated outlays are based on the historical spending of
programs authorized by IDEA. Parts A, B, and C would be
effective on July 1, 1998, and Part D would be effective on
October 1, 1997.
Part B
S. 717 would revise Part B of IDEA, including the program
of general grants to states. Current law permanently authorizes
such sums as may be necessary for this program and contains a
formula for determining how much states would get if the
program is fully funded--the number of children with a
disability times 40 percent of the average per pupil
expenditure. S. 717 would give states the option to expand the
definition of children with disabilities to include children
aged 6 to 9 who are determined to be developmentally delayed
(i.e., experiencing delays in physical, cognitive,
communication, social, emotional, or adaptive development).
This expansion of eligibility by about 10 percent would
increase the authorizations of appropriations by about $200
million in 1998 and $1.1 billion over the 1998-2002 period,
including adjustments for increases in the number of disabled
children and costs per pupil.
S. 717 would also revise the section of Part B of IDEA of
that deals with preschool grants to states. Current law
permanently authorizes such sums as may be necessary to provide
funding for grants for preschool children with disabilities,
with a maximum grant for each child capped at $1,500.
Authorizations of appropriations for 1998 under current law are
estimated to be about $900 million. S. 717 would authorize
appropriations for preschool children with disabilities of $500
million in fiscal year 1998 and such sums as necessary in
subsequent years. The bill would remove the limit on the grant
amount per child. CBO estimates that S. 717 would decrease
authorizations of appropriations by $400 million in 1998. The
authorization level represents an increase, however, over the
fiscal year 1997 appropriation for grants for preschool
children of $360 million.
Part C
Part C of S. 717 would authorize $400 million in 1998 and
such sums as necessary in fiscal years 1999 through 2002 for
spending on infants and toddlers with disabilities. Part C
would be similar to part H of current law, which covers infants
and toddlers with disabilities and which is authorized through
fiscal year 1997. Budget authority is estimated to increase by
$400 million in fiscal year 1998 and $2.1 billion over the
1998-2002 period, with adjustments for inflation. Without
adjustments for inflation, the total would be $2.0 billion.
Part D
Part D of S. 717 would authorize such sums as necessary for
grants to fund activities to improve the education of children
with disabilities for fiscal years 1998 through 2002. The
fourteen current law special purpose funds that this part would
replace are not authorized beyond 1997.
Subpart 1.--Subpart 1 of Part D would authorize
appropriations for state program improvement grants for
children with disabilities. This program has no equivalent
under current law. The program would give money to states to
improve their systems of delivery of services to children with
disabilities. States would be required to spend a certain share
of the grants they receive on training and development of
personnel who work with children with disabilities. This
subpart authorizes a maximum grant of $2 million per state for
each of the fifty states, the District of Columbia, and Puerto
Rico. CBO uses this maximum amount to estimate total
authorizations of appropriations for fiscal year 1998 of $104
million. Authorizations of appropriations would total $550
million over the 1998-2002 period with adjustments for
inflation and $520 million without adjustments for inflation.
Subpart 2--Section 672 authorizes such sums as necessary
for ``research and innovation to improve services and results
for children with disabilities'' for fiscal years 1998 through
2002. CBO assumes this section would authorize spending on
activities covered under such current programs as innovation
and development, deaf-blindness, serious emotional
disturbances, severe disabilities, early-childhood education,
secondary and transitional services, postsecondary education,
and special studies. Using the amounts appropriated for these
activities in fiscal year 1997 as a benchmark, CBO estimates
that section 672 would authorize $110 million in fiscal year
1998, or $580 million over fiscal years 1998-2002, with
adjustments for inflation. Authorizations of appropriations for
the same period without adjustments for inflation would total
$550 million.
Section 673 authorizes such sums as necessary for
activities related to the professional development of personnel
who work with children with disabilities. Current
authorizations of appropriations for these activities do not
extend beyond 1997. Personnel development activities under this
subpart would be implemented by the Secretary of Education, as
contrasted with the personnel development activities in subpart
1 which would be initiated by states. Spending on the current
personnel development program (conducted by the Secretary of
Education) was about $100 million in 1997. CBO assumes that
under S. 717, some personnel development spending would be
shifted to Subpart 1 and that authorizations of appropriations
under Subpart 2 would be only $50 million in fiscal year 1998,
or about $260 million for fiscal years 1998-2002 when inflation
is considered. The total for 1998-2002 without adjustments for
inflation would be $250 million.
Section 686 would authorize appropriations for parent
training and information centers and community parent resource
centers. Current programs that would be authorized under this
section include parent training, clearinghouses, and regional
resource centers. Using the 1997 appropriations for these
programs as a guide, CBO estimates that this section would
increase authorizations of appropriations by $25 million in
fiscal year 1998 and $132 million over the 1998-2002 period,
with adjustments for inflation. The total over the same period
without adjustments for inflation would be $125 million.
Section 687 would authorize such sums as necessary for
activities related to media services and technology
development, demonstration, and utilization. CBO estimates that
this section would increase authorizations by $30 million in
1998. The total increase in authorizations over the 1998-2002
period would be $158 million with adjustments for inflation, or
$150 million without adjustments for inflation. CBO used what
was appropriated for media and captioning services and
technology applications under the current IDEA law for fiscal
year 1997 as its basis for estimating these amounts.
Repeals
S. 717 repeals Parts C, E, F, G, H, and I of current law.
Authorizations of appropriations for Parts C, E, F, G, and H
have expired, so repealing these parts would have no budgetary
impact. Part I is authorized at such sums as may be necessary
through fiscal year 1998 under the General Education Provisions
Act (GEPA). (GEPA provides an automatic one-year extension of
authorizations for all programs in the Department of
Education.) Since this part (family support) has never received
an appropriation, the estimate includes no savings from its
repeal.
Pay-as-you-go considerations: None.
Interogovernmental and private-sector impact: Section 4 of
the Unfunded Mandates Reform Act excludes from consideration
under that Act any bill that would ``establish or enforce
statutory rights that prohibit discrimination on the basis of *
* * handicap, or disability.'' S. 717 fits within that
exclusion because it would ensure that the rights of children
with disabilities are protected in the public education system.
Estimate prepared by: Federal cost: Justin Latus; Impact on
State, local and tribal governments: Marc Nicole; Impact on the
private sector: Kathryn Rarick.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
VII. REGULATORY IMPACT STATEMENT
The committee has determined that there will be no increase
in the regulatory burden imposed by this bill.
VIII. APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
S. 717 improves State grant programs and reauthorizes
related support programs that assist in providing a free
appropriate public education to children with disabilities, and
as such has no application to the legislative branch.
IX. SECTION-BY-SECTION ANALYSIS
Section 1 of the bill permits this title to be cited as the
``Individuals with Disabilities Education Act Amendments of
1997.
Section 101 of the bill amends the current provisions of
the Individuals with Disabilities Education Act as follows.
Part A
Section 601 contains the short title of the Act, the Table
of Contents, the findings, and the purposes.
Section 602 defines the key terms used in this title,
including: Assistive Technology Device, Assistive Technology
Service, Child with a Disability, Educational Service Agency,
Elementary School, Equipment, Excess Costs, Free Appropriate
Public Education, Indian, Indian Tribe, Individualized
Education Program, Individualized Family Service Plan, Infant
or Toddler with a Disability, Institution of Higher Education,
Local Educational Agency, Native Language, Nonprofit, Outlying
Areas, Parent, Parent Organization, Parent Information and
Training Center, Related Services, Secondary School, Secretary,
Special Education, Specific Learning Disability, State, State
Educational Agency, Supplementary Aids and Services, and
Transition Services.
Section 603 authorizes the Office of Special Education
Programs headed by a Director who is selected by the Secretary
and also authorizes the Secretary to accept the work of
volunteers in carrying out the Act.
Section 604 denies a State immunity under the Eleventh
Amendment to the Constitution of the United States for
violating this Act. This section also provides for remedies for
violation and for an effective date for the provision with
respect to violations.
Section 605 authorizes the acquisition of equipment and
construction of necessary facilities, and provides that any
construction must meet specified accessibility standards.
Section 606 directs each recipient of funds under this Act
to make positive efforts to employ individuals with
disabilities in programs assisted under this Act.
Section 607 includes requirements for prescribing
regulations, and for issuing policy letters by the Department
of Education.
Part B
Section 611(a) authorizes the Secretary to provide grants
to the States and amounts to the Secretary of the Interior to
provide special education and related services to children with
disabilities.
Section 611(b) describes the allotment formula for the
outlying areas.
Section 611(c) specifies the proportion of funds to be
provided to the Secretary of the Interior.
Section 611(d) includes the allotment formula for making
part B grants to States.
Section 611(e) specifies the States use of part B funds,
including the use of funds for State administration and other
State-level activities, and subgrants to LEAs and former
Chapter 1 State agencies.
Section 611(f) addresses the use of funds provided to the
Secretary of the Interior for the education of children with
disabilities living on reservations or enrolled in elementary
or secondary schools for Indian children operated or funded by
the Secretary of the Interior.
Section 611(g) authorizes the appropriation of such sums as
may be necessary for the purpose of carrying out the provision
of special education and related services to children with
disability ages 5 through 21 years.
Section 612(a) describes the policies and procedures that a
State must have in effect to be eligible for receipt of funds
under part B of the Act, including policies and procedures
relating to: Free Appropriate Public Education; Child Find;
Individualized Program, Least Restrictive Environment;
Procedural Safeguards; Evaluation; Confidentiality; Transition
from Part C to Preschool Programs; Children in Private Schools;
State Education Agency Responsible for General Supervision
(including an exception relating to disabled children who are
convicted as adults under State Law and incarcerated in adult
prisons); Obligations Relating to and Methods for Ensuring
Services; State Educational Agency Eligibility; Comprehensive
System of Personnel Development; Personnel Standards;
Performance Goals and Indicators; Participation in Assessments;
Supplementation of State, Local and other Federal Funds;
Maintenance of State Financial Support; Public Participation;
State Advisory Panel; and Supervision and Expulsion Rates.
Section 612(b) lists the additional requirements under
section 613(a) that a State Education Agency must meet if it
provides a free appropriate public education or direct services
to children with disabilities.
Section 612(c) includes conditions under which States are
required to submit amended policies and procedures to the
Secretary, and the Secretary's responsibilities under this
section.
Section 612(d) describes what actions the Secretary must
take in approving a State's eligibility, and before making a
final determination that a State is not eligible.
Section 612(e) provides that nothing in the IDEA permits a
State to reduce medical and other assistance available, or to
alter eligibility, under Titles V and XIX of the Social
Security Act (Maternal and Child Health Services and Medicaid)
with respect to the provision of a free appropriate public
education for children with disabilities within the State.
Section 612(f) directs the Secretary to arrange for the
provision of special education to children with disabilities in
private schools if, in 1983, a State was prohibited by State
law from providing that education.
Section 613(a) sets out the local eligibility requirements
under part B. The section provides that to be eligible for any
fiscal year, an LEA must demonstrate to the satisfaction of the
SEA that its policies, procedures, and programs are consistent
with the State policies and procedures described under section
612; and that the LEA uses its part B funds in accordance with
the specified requirements of this section; meets the personnel
development requirements; and provides the SEA with information
to enable that agency to carry out its duties under this part.
The section permits LEAs to use the part B funds for various
specified purposes. The section also addresses the treatment of
charter schools under part B and the disabled children that
they serve.
Section 613(b) includes conditions under which LEAs are
required to submit amended policies and procedures to the SEA,
and the SEA's responsibilities under this section.
Section 613(c) provides that if the SEA determines that an
LEA or a State agency is not eligible under this section, it
must notify that agency of its determination and provide the
agency with reasonable notice and an opportunity for a hearing.
Section 613(d) provides that if an eligible LEA or State
agency is failing to comply with any requirement under section
613(a), the SEA shall not make any further payments to that
agency until it comes into compliance.
Section 613(e) sets out conditions under which an SEA may
require an LEA to establish its eligibility jointly with
another LEA, and describes the conditions under which an
educational service agency and a charter school would be
exempted from this section.
Section 613(f) permits an LEA to use up to five percent of
its annual part B allotment to develop and implement a
coordinated services system.
Section 613(g) authorizes each LEA to use its part B funds
to permit a public school within the jurisdiction of an LEA to
design, implement, and evaluate a school based improvement
plan.
Section 613(h) requires the SEA to use the payments that
otherwise would have been available to an LEA or State agency
to provide special education and related services directly to
children with disabilities for whom the agency is responsible,
if the SEA determines the existence of one or more specified
situations.
Section 613(i) requires any State agency that desires to
receive a subgrant for any fiscal year under part B to
demonstrate to the satisfaction of the SEA that the agency
meets the conditions described in the section.
Section 614(a) sets out requirements relating to initial
evaluations, parental consent and refusal of consent, and
reevaluations.
Section 614(b) includes requirements for procedures
relating to providing notice to parents about evaluations, and
conducting evaluations.
Section 614(c) includes requirements relating to
determining a child's eligibility under part B; reviewing
existing evaluation data; obtaining parental consent for
revaluations, and actions to take if additional data are not
needed.
Section 614(d) includes definitions of ``IEP'' and ``IEP
Team''; requires that an IEP be in effect at the beginning of
each school year for each child with a disability, and provides
that, for a child aged three, four, or five, an IFSP developed
under part C could serve as the child's IEP; requires that each
IEP be developed in a meeting by the IEP team, and lists
specified areas that must be considered in developing a child's
IEP; and requires LEAs to ensure that the IEP team reviews each
IEP periodically, but not less than annually, and revises the
IEP, as appropriate. The section also requires LEAs to
reconvene the IEP team to identify alternative strategies to
meet the transition objectives for a student if a participating
agency, other than the LEA, fails to provide the transition
services described in the IEP. Further, the section includes
provisions relating to children with disabilities in adult
prisons.
Section 614(e) provides that nothing in the section shall
be construed to require the IEP team to include information
under one component of a child's IEP that is already contained
under another component.
Section 614(f) requires that each SEA or LEA ensure that
the parents of each disabled child are members of any group
that makes decisions on the educational placement of their
child.
Section 615(a) provides that any SEA, State agency, or LEA
that receives part B funds must establish and maintain
procedures to assure that children with disabilities and their
families are guaranteed procedural safeguards with respect to
the provision of a free appropriate public education.
Section 615(b) requires that procedural safeguards include:
parental opportunity to examine all relevant records on their
child; procedures to protect the rights of the child whenever
the parents are not known, can't be located after reasonable
efforts, or the child is a State ward, including appointing a
surrogate parent for the child; written prior notice to the
parents, provided in their native language, unless it is
clearly not feasible to do so; an opportunity for mediation and
to present complaints; notice by the parents or their attorney
in the complaint, includinginformation about the child, the
problem, and a possible solution known and available at the time; and
development of a model by the SEA to assist parents in providing
notice.
Section 615(c) describes the content of the prior written
notice provided by the agency.
Section 615(d) describes the content and timing of the
procedural safeguards notice given to the parents.
Section 615(e) requires SEAs or LEAs to make mediation
available to parents, but provides that it is voluntary for
both parties to determines whether they want to participate,
and is not used to deny or delay a parent's right to a due
process hearing under section 615, or to deny any other rights
afforded under part B. The section authorizes LEAs to require
parents, before requesting a due process hearing, to attend a
meeting at which representatives from Parent Training and
Information Centers or other alternative dispute resolution
groups would explain the benefits of mediation and encourage
its use.
Section 615(f) requires that whenever a complaint has been
received, the parents involved in the complaint must have an
opportunity for an impartial due process conducted by the SEA
or LEA, and also outlines the requirements for the hearing
process.
Section 615(g) provides that any party aggrieved by a due
process hearing conducted by the LEA may appeal the decision to
the SEA.
Section 615(h) lists the procedural safeguards rights that
are available to any party to a due process hearing or an
appeal, including the right to a written, or, at the option of
the parents, electronic verbatim record of the hearing and
electronic findings of fact and decisions.
Section 615(i) provides that any party aggrieved by the
findings and decision in this section, or in section 615(g),
has the right to bring a civil action in a State court or in a
District Court of the United States without regard to the
amount in question. This section permits the award of
attorneys' fees and lists the considerations for reducing
attorney's fees.
Section 615(j) provides that, except as provided in
615(k)(7), the child must remain in the current educational
setting while any proceedings conducted under this section are
pending.
Section 615(k) provides two exceptions to the pendency
provision under section 615(j): first, with respect to a
situation in which a disabled child carries a weapon to school
or a school function or knowingly possesses or uses illegal
drugs or sells or solicits the sale of a controlled substance
while at school or at a school function; and second, with
respect to a situation in which a child's actions are
substantially likely to result in injury to the child or
others. as determined by a hearing officer. The section sets
out conditions and procedures relating to placing a child in an
alternative educational setting, conducting a manifestation
determination, required actions by the LEA when the child's
behavior was not a manifestation of the child's disability, and
the required hearing procedures and pendency provisions. The
section also sets out protections for children not yet eligible
for special education; includes a provision relating to
referral to and action by law enforcement and judicial
authorities; and includes definitions of ``controlled
substance'', ``illegal drug'' and ``weapon''.
Section 615(l) maintains the rights available under the
Constitution, the Americans with Disabilities Act, title V of
the Rehabilitation Act and other Federal laws.
Section 615(m) requires the State to provide for transfer
of rights from the parent to the child with a disability when
the child reaches the age of majority under State law, unless
the child has been found to be unable to provide informed
consent to educational decisions.
Section 616 allows the Secretary to withhold payments to
the State, after reasonable notice and an opportunity for a
hearing, for substantial failure to comply with any provision
or condition under this part. The section also describes the
nature of the withholding and availability and process of a
judicial review.
Section 617 describes the responsibilities of the Secretary
under part B, including: arranging for the provision of
technical assistance to the States; the issuance of rules and
regulations to the extent necessary to ensure compliance with
part B; confidentiality; and the hiring of personnel to conduct
data collection and evaluation activities.
Section 618 describes the program information that each
State receiving Part B funds and the Secretary of the Interior
must provide to the Secretary each year, and permits States and
the Secretary of the Interior to obtain the data through
sampling. The section also requires each State to collect and
examine data each year to determine if significant
disproportionality based on race is occurring in the
identification and placement of children with disabilities, and
provides that if a situation is identified, the State must
review and revise, if necessary, it policies, practices, and
procedures.
Section 619(a) directs the Secretary to make grants to
assist States to provide special education and related
services, in accordance with Part B, to children with
disabilities aged three through five and, at the State's
discretion, to 2-year-old children with disabilities who will
turn three during the school year.
Section 619(b) provides that a State is eligible for a
grant under section 619 if it has established its eligibility
under section 612 and it makes a free appropriate public
education available to all children with disabilities, aged
three through five, residing in its jurisdiction.
Section 619(c) includes the allotment formula for the
Preschool Grants program.
Section 619(d) describes the general amount of Preschool
Grant funds that may be retained by the State.
Section 619(e) specifies the use of Preschool Grant funds
for State administration.
Section 619(f) specifies the use of Preschool Grant funds
for other State-level activities.
Section 619(g) provides for subgrants to LEAs.
Section 619(h) provides that part C of this Act does not
apply to any child with a disability receiving a free
appropriate public education in accordance with part B, with
Preschool Grant funds.
Section 619(i) includes a special definition of ``State''
for purposes of allocating funds under the Preschool Grants
program.
Section 619(j) exempts the outlying areas from the
provisions of section 501 of Public law 95-534.
Section 619(k) authorizes an appropriation of $500 million
for FY 1988 and such sums as may be necessary for each
subsequent fiscal year.
Part C
Section 631(a) lists the Congressional findings relating to
Part C.
Section 631(b) outlines the policy of the United States to
provide financial assistance to enhance the State's capacity to
provide quality early intervention services and expand and
improve existing early intervention services.
Section 632 defines the key terms used in this part,
including ``at-risk infant or toddler'', ``council'',
``developmental delay'', ``early intervention services'', and
``infant or toddler with a disability''.
Section 633 authorizes the Secretary to make grants to the
States to assist them in implementing and maintaining a
statewide system of early intervention services for infants and
toddlers with disabilities and their families.
Section 634 establishes the criteria each State must meet
to be eligible for a grant under this part including: adoption
of a policy that appropriate early intervention services are
available to all infants and toddlers with disabilities and
their families in the State (including Indian infants and
toddlers with disabilities and their families living on an
Indian reservation within the State); and provision of a
statewide system of early intervention services which meets the
requirements of section 635.
Section 635(a) establishes the minimum components for a
statewide system of early intervention services including: a
definition of developmental delay, a timely, comprehensive,
multidisciplinary evaluation of each infant or toddler; an
Individualized Family Service Plan in accordance with section
636; a comprehensive child find system consistent with Part B;
a public awareness program; a central director; a comprehensive
system of personnel development; policies and procedures
relating to personnel standards; a single line of
responsibility for the administration and supervision of the
statewide program, a policy pertaining to contracting with
service providers; a procedure for reimbursement of funds;
procedural safeguards; a system for compiling data; a State
interagency coordinating council that meets the requirements of
section 641; and a policy for ensuring that early intervention
services are provided in natural environments to the maximum
extent appropriate.
Section 635(b) allows the State to make ongoing, good faith
efforts to recruit and hire appropriately and adequately
trained personnel and, where there is a shortage of such
personnel, to use the most qualified individuals available who
are making satisfactory progress toward completing course work
necessary to meet State certification standards.
Section 636(a) requires the statewide system to provide for
each infant or toddler with a disability, and each family, to
receive: a multidisciplinary assessment; a family-directed
assessment; and a written individualized family service plan
(IFSP) developed by a multidisciplinary team, including the
parents.
Section 636(b) requires the IFSP be evaluated once a year
and requires that every six months the family receive a review
of the plan.
Section 636(c) requires the IFSP be developed within a
reasonable time after the assessment, and provides that, with
parental consent, early intervention services may commence
prior to the completion of the assessment.
Section 636(d) directs that the individualized family
service plan be in writing and details what it must contain.
Section 636(e) requires parents to provide informed written
consent before implementation of the IFSP, and permits the
delivery of only those services for which consent has been
given.
Section 637(a) requires that each State desiring to receive
a grant under this part submit an application to the Secretary
at the time and in the manner required by the Secretary, and
describes the information required to be in the application.
Section 637(b) lists the assurances that the State must
include in its application to the Secretary.
Section 637(c) provides that the Secretary may not
disapprove a State's application without first determining,
after notice and opportunity for a hearing, that the
application fails to comply with the requirements of this
section.
Section 637(d) provides that if a State already has on file
with the Secretary policies and procedures that demonstrate
that it meets any requirement of part C, the Secretary shall
treat the State as meeting that requirement for purposes of
receiving a grant under part C.
Section 637(e) provides that an application submitted by a
State in accordance with section 637 shall remain in effect
until the State submits to the Secretary such modifications it
determines necessary.
Section 638 lists the allowable use of funds under part C,
including providing greater flexibility in addressing the needs
of at risk infants and toddlers in those States not currently
serving such children.
Section 639(a) details the minimum procedural safeguards a
State shall have in place.
Section 639(b) provides that during the pendency of any
proceeding or action involving a complaint by the parents, the
infant or toddler shall continue to receive the early
intervention services currently being delivered, or if applying
for initial services, shall receive the services not in
dispute.
Section 640(a) provides that funds under part C may not be
used to pay for services which would have been paid for by
another source, including any medical program administered by
the Department of Defense, but for the enactment of part C,
except to prevent a delay in the provision of early
intervention services pending reimbursement from the agency
which has ultimate responsibility for the payment.
Section 640(b) prohibits the State from reducing medical or
other assistance available or from altering eligibility under
title V of the Social Security Act (relating to maternal and
child health) or to title XIX of the Social Security Act
(relating to Medicaid for infants or toddlers with
disabilities) within the State.
Section 641(a) requires each State wishing to receive funds
under this part to establish an interagency coordinating
council with the membership outlined in this section appointed
by the Governor.
Section 641(b) prescribes the composition of the Council,
including: 20% parent members; 20% service provider members;
and at least one member representing the State legislature,
personnel preparation, each of the State agencies providing or
paying for early intervention services; and other members
selected by the Governor.
Section 641(c) requires the council to meet at least
quarterly, and to conduct meetings that have been publicly
announced and are open and accessible to the general public.
Section 641(d) allows the council, subject to the approval
of the Governor, to use funds under this part to conduct
hearings and forums, reimburse council members for necessary
expenses related to attending meetings, hire staff, and for
other purposes.
Section 641(e) describes the functions of the council.
Section 641(f) prohibits any member of the council from
voting on any matter which would give the appearance of a
conflict of interest.
Section 642 provides that sections 616, 617, 618, and 620
shall, to the extent not inconsistent with part C, apply to the
program authorized under this part.
Section 643(a) allows the Secretary to reserve up to one
percent of the funds from the appropriation for payment to the
outlying areas, and exempts those funds from the provisions of
P.L. 95-134.
Section 643(b) directs the Secretary to make payments of
1.25 percent of the amount available to the States to the
Secretary of the Interior for distribution to Indian tribes and
includes the methods of allocation, allowable uses of funds,
and reporting requirements.
Section 643(c) describes the manner in which the part C
funds will be distributed to the States.
Section 643(d) allows the Secretary to reallot any funds
refused by a State to the remaining States.
Section 644(a) requires the Secretary to establish a
Federal Interagency Coordinating Council to minimize
duplication of programs and activities across Federal, State,
and local agencies, ensure the effective coordination of
Federal early intervention and preschool programs across
Federal agencies, and for other coordinative purposes.
Section 644(b) prescribes the composition of the Council.
Section 644(c) requires the council to meet at least
quarterly, and to conduct meetings that have been publicly
announced and are open and accessible to the general public.
Section 644(d) describes the functions of the Council.
Section 644(e) prohibits any member of the Council from
voting on any matter which would give the appearance of a
conflict of interest under Federal law.
Section 644(f) exempts the Federal Advisory Committee Act
(5 U.S.C. App.) from applying to the establishment or operation
of the Council.
Section 645 authorizes an appropriation of $400,000,000 for
fiscal year 1998, and such sums as may be necessary for each of
the fiscal years 1999 through 2002.
Part D--Subpart 1
Section 651(a) sets out congressional findings in support
of a new program of grants to States to support the development
and implementation of plans to improve their systems for
educating children with disabilities. The program would be
authorized by subpart 1 of a new part C of the IDEA.
Section 651(b) would provide that the purpose of the new
program is to assist SEAs and their partners in the State in
reforming and improving their systems for providing
educational, early intervention, and transitional services to
improve results for children with disabilities.
Section 622(a) permits an SEA to apply for a grant under
subpart 1 for a period of not less than one year and not more
than five years.
Section 652(b) requires an SEA that wants to apply for a
grant to establish a partnership with LEAs and other State
agencies involved in, or concerned with, the education of
children with disabilities, and to work in partnership with
other organizations and individuals involved in and concerned
with the education of children with disabilities. The SEA must
involve identified individuals and organizations in the
partnership, and may include others at its discretion.
Section 653 describes the material (including a
comprehensive needs assessment and a description of the
strategies the State will use to meet those needs) that must be
included in a State's application under Subpart 1, the process
by which the Secretary makes competitive awards to States, and
the obligation of States receiving grants to submit regular
performance reports to the Secretary.
Section 654 describes the permissible uses of a State
Improvement grant, and requires each State to use a substantial
part of its grant to ensure that there are sufficient personnel
who have the skills and knowledge necessary to meet the needs
of children with disabilities in the State.
Section 655 establishes minimum grant amounts for States
whose applications are approved, allows the Secretary to
increase the minimum amounts in later years to account for
inflation, and lists the factors the Secretary considers in
setting the amount of individual grants.
Section 656 authorizes the appropriation of such sums as
may be necessary to carry out Subpart 1 for each of the fiscal
years 1998 through 2002.
Part D--Subpart 2
Section 661(a), which is similar to current section 610(a),
requires the Secretary to develop and implement a comprehensive
plan for activities under Subpart 2 of Part D, in order to
assist States and LEAs in providing educational, related, and
early intervention services to children with disabilities under
Parts B and C of the IDEA. In developing that plan, the
Secretary is required to consult with individuals with
disabilities; parents of children with disabilities;
appropriate professionals; and representatives of SEAs, LEAs,
private schools, institutions of higher education, other
Federal agencies, the National Council on Disabilities, and
national organizations with an interest in, and expertise in,
providing services to children with disabilities and their
families.
Section 661(b)(1) replaces the individual statements of
eligibility that are now scattered throughout the discretionary
program authorities with a single comprehensive statement that,
except as otherwise provided, those eligible to apply for
awards under Subpart 2 are: (1) SEAs; (2) LEAs; (3)
institutions of higher education; (4) other public agencies;
(5) private nonprofit organizations; (6) Indian tribes and
tribal organizations; and (7) when the Secretary finds it
appropriate in light of the purposes of the particular
competition, for-profit organizations.
Section 661(b)(2) permits the Secretary to limit individual
competitions to one or more categories of eligible entities
listed above.
Section 661(c) affords the Secretary some flexibility in
using funds under subpart 2 by allowing the Secretary to use up
to 20 percent of the funds available under chapter 1 or chapter
2 for activities authorized by the other chapter, or for any
combination of activities consistent with the purposes of
either or both chapters.
Section 661(d), relating to special populations, is based
on current section 610(b) and (j). Paragraph (1) directs the
Secretary, as appropriate, in making awards under subpart 2, to
require applicants to demonstrate how they will address the
needs of children with disabilities from minority backgrounds.
Section 661(d)(2)(A) further directs the Secretary,
notwithstanding any other provision of the IDEA, to ensure that
at least one percent of the total amount of funds appropriated
for Subpart 2 is used to provide outreach and technical
assistance to Historically Black Colleges and Universities
(HBCUs), and to institutions of higher education with minority
enrollments of at least 25 percent, to promote their
participation in activities under the subpart 2 programs; and
to enable those HBCUs and institutions to assist others in
improving educational results for children with disabilities.
Paragraph (3)(B) would allow the Secretary to reserve funds
appropriated under parts D through G (and, for fiscal year
1996, under parts C through G) to meet that requirement. These
provisions are analogous to current section 610(j)(2)(C)(iii).
Section 661(e) enables the Secretary to give priority to
particular types of projects without requiring public comment.
Section 661(f)(1) directs the Secretary to require that
applicants for, and recipients of, awards under subpart 2
involve individuals with disabilities and parents of
individuals with disabilities in planning, implementing, and
evaluating projects, and, where appropriate, determine their
projects' potential for replication and widespread adoption.
Paragraph (2) permits the Secretary to require that those
applicants and recipients share in the cost of projects;
prepare their findings and products in formats useful for
specific audiences; disseminate their findings and products;
and collaborate with other recipients. These two paragraphs
replace current section 610(g).
Section 661(g), which is similar to current section 601(h),
provides for peer review of applications under subpart 2 for
more than $75,000. (The current threshold is $60,000.) Separate
peer-review provisions for State Improvement Plans under the
new Subpart 1 apply to that program.
Section 661(h) allows the Secretary to use funds
appropriated to carry out subpart 2 to evaluate activities
carried out under that subpart.
Section 661(i)(1) ensures that the needs of children with
low-incidence disabilities continue to be met during the
implementation of the new, more flexible authorities by
guaranteeing that, however the Secretary implements those
authorities, certain absolute dollar amounts continue to be
spent in the following specified areas: (1) $12,832,000 to
address the educational, related services, transitional, and
early intervention needs to children with deaf-blindness; (2)
$4,000,000 to address the postsecondary, vocational, technical,
continuing, and adult education needs of individuals with
deafness; and (3) $4,000,000 to address the special
educational, related services, and transitional needs of
children with emotional disturbance and those who are at risk
of developing an emotional disturbance. Paragraph (2) provides
for a proportionate reduction of these amounts if the total
amount appropriated for any fiscal year for Subpart 2 falls
below $130 million.
Chapter 1
Section 671(a) sets out congressional findings in support
of the chapter 1 program. Section 671(b) provides that the
purpose of chapter 1 is to provide Federal funding for certain
coordinated research, demonstration projects, outreach, and
personnel-preparation activities that are linked with, and
promote, systemic change; and that improve early intervention,
educational, and transitional results for children with
disabilities.
Section 672(a) directs the Secretary to make competitive
awards to eligible entities to produce and advance the use of
knowledge for six specified purposes.
Section 672(b) directs the Secretary to support activities,
consistent with the objectives described in section 672(a),
that lead to the production of new knowledge, and lists a
variety of specific activities that may be carried out.
Section 672(c) directs the Secretary to support activities,
consistent with the objectives described in section 672(a),
that integrate research and practice, including activities that
support State systemic-change and local capacity-building and
improvement efforts, and lists examples of activities that may
be carried out under this subsection.
Section 672(d) directs the Secretary to support activities,
consistent with the objectives described in section 672(a),
that improve the use of professional knowledge, including
activities that support State systemic-change and local
capacity-building and improvement efforts, and lists examples
of activities that may be carried out under this subsection.
Section 672(e) requires the Secretary, in carrying out
section 632, to ensure that there is an appropriate balance
among knowledge production, integration of research and
practice, and use of professional knowledge; and across all age
ranges of children with disabilities.
Section 672(f) requires an eligible entity that wishes to
receive an award under section 672 to submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
Section 672(g) authorizes the appropriation of such sums as
may be necessary to carry out section 672 for each of the
fiscal years 1998 through 2002.
Section 673(a) directs the Secretary to make competitive
awards to eligible entities to help address State-identified
needs for qualified personnel in special education, related
services, early intervention, and regular education to work
with children with disabilities; and to ensure that those
personnel have the skills and knowledge reflecting successful
practices determined through research and practice that are
needed to serve those children.
Section 673(b) directs the Secretary, in carrying out
section 673, to support activities, consistent with the
objectives described in section 673(a), that benefit children
with low-incidence disabilities; identifies examples of
activities that may be carried out under this subsection;
defines the term ``low-incidence disability''; and permits the
Secretary to give preference to applications that propose to
prepare personnel in more than one low-incidence disability,
such as deafness or blindness.
Section 673(c) directs the Secretary to support leadership-
preparation activities that are consistent with the objectives
described in section 673(a), and lists examples of specific
activities that may be carried out under this subsection.
Section 673(d) directs the Secretary to support activities,
consistent with the objectives described in section 673(a),
that are of national significance and have broad applicability,
and lists examples of specific activities that may be carried
out under this subsection.
Section 673(e) directs the Secretary to support activities,
consistent with the objectives described in section 673(a), to
benefit children with high-incidence disabilities, and lists
examples of specific activities that may be carried out under
this subsection.
Section 673(f) requires an eligible entity that wishes to
receive an award under section 673 to submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require, and describes certain
material that must be included, or that the Secretary may
require to be included, in applications for funds to carry out
certain activities.
Section 673(g) establishes various rules for the selection
of recipients under section 673.
Section 673(h) requires applicants for certain projects
under section 673 to provide an assurance that they will ensure
that individuals who receive scholarship assistance under the
proposed project will subsequently work in the area for which
they received training or repay all or part of that assistance,
in accordance with regulations issued by the Secretary.
Section 673(i) permits the Secretary to include funds for
scholarships, with necessary stipends and allowances, in awards
under section 633.
Section 673(j) authorizes the appropriation of such sums as
may be necessary to carry out section 673 for each of the
fiscal years 1998 through 2002.
Section 674(a) directs the Secretary to assess progress in
the implementation of the IDEA, including the effectiveness of
State and local efforts to provide a free appropriate public
education to children with disabilities, and to provide early
intervention services to infants and toddlers with disabilities
and infants and toddlers at risk for developmental delay. To
that end, the Secretary may support studies, evaluations, and
assessments, including various studies described in this
subsection.
Section 674(b) directs the Secretary to carry out a
national assessment of activities carried out with Federal
funds under the IDEA in order to: (1) determine the
effectiveness of the IDEA in achieving its purposes; (2)
provide information to the President, the Congress, the States,
LEAs, and the public on how to implement the IDEA more
effectively; and (3) provide the President and the Congress
with information that will be useful in developing legislation
to achieve the purposes of the IDEA more effectively. An
interim report is due to Congress by October 1, 1999; and a
final report of the findings of the assessment is due by
October 1, 2001.
Section 674(c) requires the Secretary to provide an annual
report to Congress that includes an analysis and summary of the
data reported by the States and the Secretary of the Interior
under section 618; the results of activities conducted under
section 674(a);and the findings and determinations resulting
from reviews of State implementation of the IDEA.
Section 674(d) directs the Secretary to provide technical
assistance to LEAs to assist them in carrying out local
capacity-building and improvement projects under section 611(e)
of Part B.
Section 674(e) allows the Secretary to reserve up to one-
half of one percent of the amount appropriated under Parts B
and C for each fiscal year to carry out section 674.
Chapter 2
Section 681(a) sets out congressional findings in support
of Chapter 2.
Section 681(b) provides that the purposes of Chapter 2 are
to ensure that: (1) children with disabilities, and their
parents, receive training and information on their rights and
protections under the IDEA; (2) parents, teachers,
administrators, early intervention personnel, related services
personnel, and transition personnel receive coordinated and
accessible technical assistance and information to assist them
to improve services and results for children with disabilities
and their families; (3) appropriate technology and media are
researched, developed,demonstrated, and made available in
timely and accessible formats to parents, teachers, and all types of
personnel providing services to children with disabilities; (4) on
reaching the age of majority under State law, children with
disabilities understand their rights and responsibilities under Part B
of the IDEA, if the state provides for the transfer of parental rights
under Part B; and (5) the general welfare of deaf and hard-of-hearing
individuals is promoted.
Section 682(a) authorizes the Secretary to make awards to
parent organizations to support parent training and information
(PTI) centers.
Section 682(b) requires each PTI center assisted under
section 682 to carry out a variety of specified activities.
Section 682(c) identifies additional activities that PTI
centers may, but are not required, to carry out.
Section 682(d) requires each application for a PTI center
to identify the special efforts that the applicant will
undertake to: (1) ensure that the needs for training and
information of underserved parents of children with
disabilities in the area to be served are effectively met; and
(2) work with community-based organizations.
Section 682(e)(1) requires the Secretary to make at least
one award to a parent organization in each State, unless the
Secretary does not receive an application from a parent
organization in the State of sufficient quality to warrant
approval.
Section 682(e)(2) requires the Secretary to select among
applications submitted by parent organizations so as to ensure
the most effective assistance to parents, including parents in
urban and rural areas, in the State.
Section 682(f) requires the board of directors or special
governing committee of each organization that receives an award
for a parent training and information center to meet at least
once in each calendar quarter to review the activities for
which the award was made.
Section 682(g) identifies the characteristics of those
private nonprofit organizations that qualify as ``parent
organization'' and that are, therefore, eligible to apply for
PTI center awards under section 682. In addition to other
requirements, such an organization must either have a board of
directors the majority of whom are parents of children with
disabilities or have established a special governing committee
for the Secretary center that meets that condition.
Section 683(a) authorizes the Secretary to make awards to
local parent organizations to support local parent training and
information centers that will help ensure that underserved
parents of children with disabilities have the training and
information they need to enable them to participate effectively
in helping their children with disabilities: (1) meet
developmental goals and, to the maximum extent possible, those
challenging standards that have been established for all
children; and (2) be prepared to lead productive, independent
adult lives to the maximum extent possible.
Section 683(b) identifies certain activities that each
local PTI center assisted under section 683 must carry out.
Section 683((c) defines the term ``local parent
organization'', as used in section 683.
Section 684(a) would authorize the Secretary to provide
technical assistance for developing, assisting, and
coordinating parent training and information carried out by PTI
centers assisted under section 682 and 683.
Section 684(b) would allow the Secretary to focus technical
assistance under section 684 on various areas.
Section 685(a) directs the Secretary to provide technical
assistance and information to interested parties in order to
improve early intervention, educational, and transitional
services and results for children with disabilities and their
families, and to address systemic-change goals and priorities.
Section 685(b) directs the Secretary to carry out or
support technical assistance activities, consistent with the
objectives described in section 685(a), relating to systemic
change, and identifies examples of specific activities that are
authorized under this subsection.
Section 685(c) directs the Secretary to carry out or
support activities, consistent with the objectives described in
section 685(a), relating to specific topics or populations, and
identifies examples of specific activities that are authorized
under this subsection.
Section 685(d) directs the Secretary to carry out or
support information dissemination activities that are
consistent with the objectives described in section 685(a),
including activities that address national needs for the
preparation and dissemination of information relating to
eliminating barriers to systemic-change and improving early
intervention, educational, and transitional results for
children with disabilities.
Section 685(e) requires an eligible entity that wishes to
receive an award under section 685 to submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
Section 686 authorizes the appropriation of such sums as
may be necessary to carry out sections 681 through 685 for each
of the fiscal years 1998 through 2002.
Section 687(a) directs the Secretary to make competitive
awards to eligible entities to support technology development,
demonstration, and utilization activities described in section
687(b) and educational media services activities described in
section 687(c).
Section 687(d) requires any eligible entity that wishes to
receive an award under section 687 to submit an application to
the Secretary at such time, in such manner, and containing such
information as the Secretary may require.
Section 687(e) authorizes the appropriation of such sums as
may be necessary to carry out section 687 for each of the
fiscal years 1998 through 2002.
Miscellaneous provisions
Section 201 of the bill extends the effective date of the
Jeffords Amendment, section 314(a)(2) of the Improving
America's Schools Act of 1994 (Public Law 103-382; 108 Stat.
3936), to July 1, 1998.
Section 202 of the bill specifies effective dates, as
follows: Except for sections 605 and 607, which take effect on
the date of enactment, parts A, B, and C of the Individuals
with Disabilities Education Act, as amended by section 101 of
the bill, shall take effect on July 1, 1998; and part D of the
Act, as amended by section 101 of the bill, shall take effect
on October 1, 1997.
Section 203 of the bill provides that notwithstanding any
other provision of law, beginning on October 1, 1997, the
Secretary of Education may use funds appropriated under part D
of the Individuals with Disabilities Education Act to make
continuation awards that were funded under parts C through G of
such Act (as in effect on September 30, 1997).
Section 204 of the bill repeals part I of the Individuals
with Disabilities Education Act, effective October 1, 1998;
repeals part H of such Act, effective July 1, 1998; and repeals
parts E, F, and G, effective October 1, 1997.
X. CHANGES IN EXISTING LAW
The Committee has determined that it is necessary, in order
to expedite the business of the Senate, to dispense with the
requirements of rule XXVI, paragraph 12, of the Standing Rules
of the Senate, with respect to this legislation.