IDEA Reauthorization: House bill HR 1350 and Senate Bill

PLEASE DON'T LEAVE OUR CHILDREN LEFT BEHIND...

We, the undersigned, are concerned with the proposed amendments to IDEA in the House sponsored bill HR 1350.

We are members of the special needs community: parents, family members, students, disabled individuals, and professionals.

The proposed amendments will greatly diminish accountability and create unnecessary barriers to the provision of a free, appropriate, public education to students with disabilities.

We ask our legislators to vote down any House or Senate bill that includes the following components:

1) NO MANDATORY FEDERAL FUNDING WILL BE PROVIDED TO STATES. Federal funding remains discretionary.

Since IDEA was first passed, federal funding has been an issue. Once promised at 40\% funding to assist states, this will continue to be a state to state problem.

Federal funding for IDEA would alleviate the increasing financial burden upon the States to comply with IDEA. States, in turn, assist our local school districts' special education programs. Though unspoken, the difficulties that parents encounter obtaining appropriate educations for their children are the result of budgetary constraints. Without mandatory federal funding, these issues will continue to persist.

Though the federal laws protect our children, implementation on a local level is difficult to achieve without adequate funding for our children's programs.

2) ELMINATION OF SHORT-TERM OBJECTIVES FROM IEPS.

Currently, IEPs are required to have measurable annual goals and short-term objectives (benchmarks). Goals and objectives outline a student's educational needs and are crucial for the ability to measure the progress of our child. Progress reports currently are based upon the goals and objectives from the IEP and are scored against these outlined needs.

While annual goals give parents an overall picture for a particular instructional need, it is the short-term objectives, the stepping stones toward the goal, which allows parents to determine the child's actual progress.

The proposed elimination will generate a progress report that will not indicate anything beyond that goal.

Currently, each objective is measured for progress reports. There is a natural progression of skill-building and meaningful information is collected and shared.

The elimination of short-term objectives may results in the lack of knowledge of the child's actual progress in the instructional area and therefore make it difficult for parents to know at which step their child has progressed. The results of progress reports will be vague and the level of accountability of the district's responsibility to the student is diminished. It will be difficult to evaluate whether a student is truly receiving an appropriate education.

3) IEPS WILL BE REVIEWED ONCE EVERY THREE YEARS.

While parents will be able to advocate for an annual IEP review and also retain the right to request additional IEP reviews, the annual review will no longer be automatic or mandatory. Each parent must individually advocate for additional IEP reviews above the pre-designated three year interval. It will be difficult to say how cooperative districts will be when annual reviews are at a higher standard than the law requires. Our children's educational needs are constantly changing based upon progress or newly found challenges. While the door remains open for additional reviews, it may become more confusing to newer parents entering the process to understand their rights to additional reviews. An annual review holds the districts at a higher standard of accountability.

Further, with the concurrent elimination of short-term objectives and the use of only annual goals, progress reports will become all the more crucial for information with IEPs written for a three year period. Reduction of paperwork should not be at the expense of diminished accountability and lack of information for parents. This proposed amendment creates difficulties in assessing the appropriateness and quality of a student's education.

4) STATES ARE REQUIRED TO OFFER VOLUNTARY BINDING ARBIRTRATION HEARINGS.

While existing procedural safeguards such as mediation, due process and complaint investigation remain available recourses, this fourth option will be offered.

Voluntary binding arbitration hearing is not in a court and is not presided by an administrative law judge. The hearing will be presided, in most cases, by a three person panel consisting of one party selected by the school, one selected by the parent, and one agreed upon by both.

Unlike mediation, where the mediator is an impartial third party who is there is facilitate negotiation and does not impose their opinions upon the matter to be adjudicated, this panel will make a final and binding decision. There is no appeal process. Once a decision is handed down, the decision cannot be reviewed by due process or any higher courts.

While this option may be a court time-saving measure, it does not allow for the natural legal process. Without the right to appeal to higher authority, it is unclear why parent or school would opt for this measure. There is no benefit to the parent or greater protection afforded to the children with this model. It is most likely that the binding nature of arbitration will result in more litigation to test the legality and constitutionality regardless of its voluntary nature.

It is important to note that there are states currently offering voluntary binding arbitration hearings. One of these states is Massachusetts. In the past year, only seven cases statewide were resolved by this method. It is an unnecessary fourth procedural safeguard and serves only to possibly confused parents less familiar with the other available safeguard measures.

5) 15\% OF PART B IDEA SPECIAL ED FUNDING TO BE USED BY PRE-REFERRED STUDENT (STUDENTS W/O IEPS AND/OR SECTION 504 PLANS)

Districts will be allowed to utilize funds earmarked for the provision of special education and related services for students who do not have an IEP or even a Section 504 plan. Educators have argued that this is preventive measure so that students who may not yet require an IEP or Section 504 plan can receive special education services to prevent them from officially entering special education, to have their needs met without letting them slip through the cracks.

As the districts have not seen fit to classify the student as eligible for special education, additional educational services should be funded by general education funding resources rather than depleting much need special education funds.

Since IEPS and Section 504 plans do exist, these students should have full use of this system with its safeguards and accountability and therefore it is unnecessary to utilize special education much needed funds for children with existing IEPs. As parents, we know first hand how difficult it is to obtain the services our children need but this problem will persist if conceivably only 85\% of the earmarked funds will be utilized for students with IEPs.

Further, there is no procedure or safeguards for a student receiving services in this method. No guidelines to protect the rights of the student or the parent. It is at the school's discretion as to when such services are necessary, when a student no longer requires such services, as well as when that student requires an IEP. Discretionary authority by local school districts of the provision of special education services without procedural safeguards or accountability may lead to delayed appropriate educations for students who require IEPs.

6) DUE PROCESS TIMELINES AND PROCEDURE CHANGES
Currently, due process decisions are to be handed down within 45 days from receipt of filing. Exceptions are granted by an administrative law judge so that parties can submit evidence or obtain witnesses. These exceptions to the timeline are at the discretion of the judge with ample representation by parties interest (either by an advocate, attorney, or self-representation). The judge listens to both parties and decides whether extensions will be granted.

The change to the due process procedure will have automatic built-in delays to the hearing. The district will now have 15 days to reconvene a final IEP meeting to clear up issues and another additional 15 days to resolve these problems.

It is unclear whether the 45 days to final decision will remain in effect. In other words, 15+15=30 days and therefore the final remaining 15 days the court will hear the case and render a final decision.

It seems more likely that the 45 day clock will begin ticking after the district's 30 days so due process will be delayed by a month.

In the meantime, the student remains in need. Parents could possibly be retaining and paying for professionals an additional 30 days during this process. This is a burden we cannot all afford while districts have more resources.

Further, while extensions are available in due process, the additional safeguard is the administrative law judge. The judge allows both parties to advocate their position for and against extension and it is the judge who decides whether extensions are granted. While this may be legal formality, the procedure is common to all legal proceedings. Special education legal issues should be no exception and should be treated with the same respect as other legal proceedings. One party immediately has been granted an automatic extension by law with no input by the petitioner.

This change, in effect, is non-voluntary and non-consensual mediation. It is forcing parents to renegotiate with the school district after months, if not years, of negotiations prior to due process.

7) DISTRICTS ARE NOT RESPONSIBLE FOR THE PROVISION OF EDUCATION TO STUDENTS WHO ARE SUSPENDED OR EXPELLED.

Currently, IDEA has provisions for students who have a disability who may come under disciplinary action.

When a student is removed 10 days or more, or expelled, the district remains responsible for the provision of education in an interim education setting. Also, a manifestation determination review must be done to determine if the behavior was a manifestation of the disability. If not, the student is disciplined according to the guidelines set forth for typical students. However, if it was disability-related, the district must work towards conducting a functional behavior assessment and a subsequent behavior intervention plan. But all along this process, the district remains responsible for the education of the student in an interim setting (home program, etc). Also, parents have the additional procedural safeguard of expedited due process hearing to possibly stop a district from a disciplinary action (such as removing them from a school).

The proposed change regarding discipline is that when a child is suspended or expelled, the district is no longer responsible for education of the student.

There will be no manifestation determination, behavior assessment, behavior plans or even expedite due process because the student will simply no longer be the responsibility of the district.

It is unclear who is responsible for the student. It would appear that parents will then have to seek out alternative placement for their children.

The shift of burden to the parent to prove that a removal is unwarranted is unacceptable. The student should be given the benefit of the doubt and it should be a district's burden to prove removal is necessary.

The House proposed IDEA also is ambiguous regarding the terms for removal. It states that a student may be removed for any violation of a school code. Terms for removal require clarification to avoid abusive removal of special education students from their learning environments by local school districts.

These changes to IDEA are most troubling and of concern to me and the parent members of SPARC of NJ.

Personally speaking, my son is autistic and "difficult" behaviors are part of his disability. He is not willful, rude, or aggressive. He has a diagnosed neurological impairment with social, verbal, and emotional deficits. To expect that a child like Gabriel could be expelled with no provision for his education beyond what I, as a parent, can provide is unfair to Gabriel and violates the spirit of IDEA.

These changes take away accountability from local school districts.

As it stands, parents of special needs children struggle daily to raise their children. We are more hardworking than the average parent. We work with our children to get them to sit, stand, walk, sign, talk, point, read, write, jump, button a shirt, tie a shoe lace, even to say "mommy" or give a kiss. The simplest things to typical children are triumphs for ours and are sometimes only achieved after several years. We shed many tears for our children coping with large amounts of stress. Yet, we are expected to live typical lives too. We work, we have family obligations beyond our special children, we pay our bills, and we pay our taxes. In addition, we fight our school districts.

We fight for eligibility, we fight for classification, we fight for assessments, and we fight for placements. IDEA was a law meant to protect our children.

The ideaology of the HR 1350 was to reduce paperwork, increase accountability, and foster collaborative relationships between local school districts and parents of special needs students.

The results is converse. These changes reduce accountability and therefore will lead to greater tensions between districts and parents. We fight long and hard already based on the current IDEA and these changes won't alleviate our difficulties but rather will add to them.

The special needs population grows exponentially annually. Do not allow the special interests of school administrators to determine the future that is unwritten for our children.

If there is one thing a parent of a special child has an abundance of is hope. We hope that our legislators will vote down any IDEA that includes these components.