Shadegg “Sense of Congress”. This non-binding “Sense of the Congress” [House, Sec. 204. (b)] states that, “students who have not been diagnosed by physician or other person certified by a state health board as having a disability…. Should not be classified as students with disabilities for purposes of receiving services under [IDEA]; and students with behavioral problems who have not been diagnosed by a physician or other person certified by a state health board as having a disability should be subject to the regular school disciplinary code.”

This language would remove important service and eligibility determinations from school psychologists, trained and credentialed to recognize student need, and put then into less qualified hands. NASP strongly opposes this language and has urged the conference committee to omit it from the final bill.

Although this is merely a “Sense of the Congress,” meaning it does not change statute in anyway, it reflects a flagrant misunderstanding of not only emotional, behavioral, and academic disabilities, but also the qualifications required to identify need for services and determine eligibility under IDEA. It contradicts Congressional efforts to reduce overidentification by ensuring that eligibility determinations be scientifically research-based. Many p hysicians and health board certified professionals (e.g. pharmacists, podiatrists, etc.) lack the skills, experience, and expertise that the school-based teams and trained professionals possess in identifying special education needs.

Child Medication. NASP remains concerned about the unintended implications of the language in House Section 612(a)(25) “prohibiting school personnel from requiring a child to obtain a prescription… as a condition of attending school or receiving services.” We assert that it is never appropriate to make educational placements and programming contingent upon specific treatment such as medication. In fact, such practices are illegal under current disability and civil rights statutes. We are concerned, however, that the implementation of this provision would be counterproductive to improving both behavioral and academic outcomes for children with attention disorders or other medically-based conditions. While the measure does not explicitly proscribe such communication, its enactment could inevitably lead schools to adopt a “gag rule” on personnel for fear of litigation.

NASP strongly believes that a decision to place a child on medication must be made by a physician, in conjunction with the family after a medical evaluation. However, school personnel are a critically important source of information for families about their children’s educational and emotional well being and should be viewed as partners in such informed, collaborative decision making. When a medically-based condition is suspected, it is the responsibility of appropriately trained school personnel to provide parents with information to help them determine the need for a medical evaluation, and to provide the family and physician with relevant information to assist in any diagnosis or treatment plan. Legislation should enhance, not inhibit, access to those services that support positive student development and improved learning.

NASP is strongly urging the Conferees to adopt the Senate’s compromise language in Section 502 calling upon the Government Accounting Office (GAO) to study the prevalence of the problem and the methods schools employ regarding use and distribution of medication.

Other Issues

Caps on attorneys’ fees. The House would allow state Governors to set attorney’s fees. The Senate language is more acceptable, as it does not cap them, but rather, allows state or local education agencies to seek fees in the following two circumstances: 1.) a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint that is “frivolous, unreasonable or without foundation”; and 2.) a state educational agency or local educational agency against the attorney of a parent or parent if the parent's complaint "was presented for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."

It should be noted that a GAO study found that 5 states (CA, NY, PA, MD, NJ) and DC, with only 26% of all special education students in the nation, were responsible for over 75% all due-process hearings. Advocates believe that these states should examine their regulations and policies before a federal cap is imposed.

Monitoring and Enforcement. NASP supports the strong Senate language that the primary focus of Federal and State monitoring shall be on “improving educational results and functional outcomes for all children with disabilities, while ensuring compliance with program requirements, with particular emphasis on those requirements that are most likely related to improving educational results for children with disabilities.” (Sec. 616(a)(2)).

Individual Education Program. Both the House and Senate eliminate short term instructional objectives or benchmarks by 2005-2006. However the House makes an exception for those students taking alternative assessments aligned to alternate achievement standards. We support this exception. For some students, short term objectives are the most important measure of progress.

Both versions allow the general education teachers to be opted out of attendance and active participation in the development of the IEP. They also include an options for “alternative means of [IEP] meeting participation, such as video conferences and conference calls.”

We support Sec. 614(d)(5) in S. 1248 that adds procedures for the development of a three-year IEP which may be offered to a student with a disability who has reached the age of 18, designed to serve the student’s final 3-year transition period.

Parents are now given the option of a three year IEP. This may not be the best option for all students, as an annual IEP may be necessary to review student progress and to make necessary modifications. Some parents may be confused or feel coerced to accept this option. However, for a student who has reached the age of 18, the Senate adds the development of a comprehensive three-year IEP too improve the student’s final 3-year transition period.

Paperwork Reduction. NASP supports the Senate paperwork provisions in Section 609 (b), as it includes a specific provision that states may not waive civil rights protections and makes clear that the paperwork reductions may not impair the right of a child to receive a free appropriate public education or infringe upon any procedural safeguards. It is unclear which federal paperwork requirements, if any, serve other purposes. These requirements may actually be the result of state and local regulations and policies, and should not be lumped in with federal requirements. NASP supports such a streamlining of truly unnecessary paperwork. We do, however, support limiting the paperwork reduction pilot programs to 10 states, as provided in the House bill (Section 617 (e), as well as the House version of the GAO study of paperwork difference across the states to better determine the best areas for reduction (Section 104).

Research. House Sec. 663 and Senate Title III. Both House and Senate bills redirect the research function from the Office of Special Education Programs (OSEP) to the Institute for Education Science (IES). H.R. 1350 would retain an authority to carry out research activities under IDEA, but would transfer the responsibility for administering these activities from the OSEP to IES. While NASP opposes these proposed administrative changes in both the House and Senate, we prefer the proposals contained in S. 1248.

The IES is a new agency that has no track record or expertise in special education research. This move would separate administration of federal special education research from the administration of IDEA’s Part D discretionary grant programs and from IDEA’s state formula grant programs with minimal requirements for coordination between special education research activities and the implementation needs of state and local agencies responsible for implementing IDEA, and between OSEP and IES in research planning. There is no solid evidence that this move is necessary or that it would provide better research resulting in better educational outcomes for students with disabilities.

Funding. NASP recommends the House bill authorization level for the Part B State Grant Program. We urge you to ensure that the final bill retains separate “such sums” authorizations of appropriations for each of the Part D programs, as the Senate bill does and to reject the consolidation of authorizations for Part D programs that is in the House bill.

We are disappointed that repeated efforts to obtain full funding for IDEA have failed. We are also distressed that funding discussions rarely address the persistent under funding for Part C of IDEA, the Section 619 Preschool Program and Part D National Activities. These critical programs which serve infants, toddlers and preschoolers, train special educators and related services personnel, develop and disseminate research and model practices, support parents and technology and provide technical assistance have been stagnant in funding for over a decade. Without the robust infrastructure that these programs are intended to provide, Part B will not have the impact it should.

Finally, the new bill will likely exacerbate the challenges related to under funding because of provisions that allow LEAs to direct a percentage of IDEA funds to a pre-referral program and provisions that allow IDEA funds to be used for activities beyond the scope of special education students. However promising, these activities represent a diversion of funds from special education students who are underserved by current IDEA funding levels.

This summary, as well as other legislative information and analysis, is available at http://www.nasponline.org/advocacy/IDEAlinks.html. If you have additional questions or concerns, please do not hesitate to contact Libby Nealis at Lnealis@naspweb.org

© 2004, National Association of School Psychologists, 4340 East West Highway, Suite 402, Bethesda, MD 20814
(301) 657-0270, fax (301) 657-0275, www.nasponline.org

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