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NEA Letter to Education Committee

Reg Weaver, President                                                                                                                             1201 16th Street, N.W.

Dennis Van Roekel Vice President                                                                                                          Washington, D.C. 20036-3290

Lily Eskelsen, Secretary-Treasurer 

John I. Wilson, Executive Director

GOVERNMENT RELATIONS

Diane Shust, Director
202-822-7325 FAX: 202-822-7741

 

April 8, 2003

 

Representative %{FIRST} %{LAST}

Committee on Education and the Workforce

United States House of Representatives

Washington, D.C.  20515

 

Dear Representative %{LAST}:

 

On behalf of the National Education Association's (NEA) 2.7 million members, we would like to offer our comments on the Improving Education Results for Children with Disabilities Act of 2003 (H.R. 1350).   Overall, we applaud the bill’s focus on improving results and services for students with special needs.  We are also pleased the legislation recognizes the real-world problems many educators face, including too much paperwork, too few opportunities for professional development, and too few resources to ensure that no child is left behind. 

 

We are, however, profoundly disappointed that H.R. 1350 does not provide for mandatory full funding of IDEA.  While we do recognize that there have been significant increases in IDEA funding over the last several years, the under-funded federal share – in combination with current state fiscal crises – forces schools to dip into general education budgets to make up for the federal shortfall.  Schools cannot afford to wait any longer for the relief they so desperately need.  We are also concerned that the proposed authorization levels represent a cut from current law.  At a minimum, we would recommend retaining the authorization level in current law.

 

We also urge the Committee to reject any voucher amendments that might be offered.  We are aware that Representative DeMint intends to offer his voucher bill, H.R. 1373, as an amendment.  Not only would this voucher plan completely undermine parents’ existing rights under IDEA, it would drain already scarce public dollars away from public schools.  The DeMint voucher plan lacks accountability, threatens long-standing civil rights laws, and will do nothing to ensure improved achievement levels for disabled students.  (See attached NEA analysis of H.R. 1373).

 

We also have additional concerns about some provisions in H.R. 1350, as well as some suggestions for clarifying or enhancing others: 

 

·         Amend the definition of “highly qualified.”  We believe a special educator who is fully licensed or certified under state law should be deemed “highly qualified” for purposes of IDEA and No Child Left Behind (NCLB).  Absent this clarification, thousands of special education teachers would not only have to be licensed or certified under state law – an already challenging standard – but might also need to have multiple undergraduate majors in different content areas. 

 

·         Eliminate the cap on Part B funds.  Seven states stand to lose IDEA funding because of this cap, and another seven states may soon be affected.  We recognize that the 12 percent cap reflects an attempt to reduce inappropriate identification of students as disabled.  However, rather than arbitrarily limiting funds, NEA believes that states and localities ought to be given an opportunity to employ enhanced early intervention efforts – funded with new monies – and professional development programs to address the issue of disproportionate representation.

 

·         Clarify provisions relating to attendance at IEP meetings.  We applaud provisions allowing IEP team members to use teleconferencing and videoconferencing.  We are concerned, however, about provisions that allow a parent and school district to excuse any IEP member from participation.  We believe that teachers should have to consent to being excused.  Furthermore, we urge you to prevent a school district (or school) from prohibiting a teacher from attending an IEP meeting if he or she so chooses.  NEA urges the Committee to include language stating that the IEP team member wishing to be excused must also consent to the excusal.  Further, we recommend that the statute explicitly state that no IEP team member may be prohibited from attending an IEP meeting if he or she so chooses.

 

·         Address paperwork reduction in all states.   We recognize that H.R. 1350 seeks to reduce paperwork burdens.  However, we believe the 10-state paperwork reduction pilot program, which waives an unspecified number of paperwork requirements, misses the mark.  Paperwork is a problem in every state.   In fact, according to an August 2002 study by the Department of Education, a majority (53%) of special education teachers say burdensome paperwork interferes with their ability to do their job.  NEA, therefore, urges the Committee to make paperwork reduction an even greater priority by requiring ALL states to design and implement paperwork reduction plans by the 2005-2006 school year, when the annual assessments of No Child Left Behind begin.  We hope you will consider including language similar to that proposed in our attachment to this letter.

 

·         Address caseload and other working condition issues. We urge you to include language in H.R. 1350 that requires states to establish policies relating to maximum caseloads for special educators.  Most states do not have any statutes or regulations addressing caseloads for special educators.  Yet, according to the August 2002 Department of Education study, most special educators cite unmanageable workloads and burdensome paperwork as the two main reasons they leave their positions – and sometimes the teaching profession altogether.  NEA believes that all states should be required to develop, at a minimum, a policy that addresses this harmful phenomenon.  We do not suggest that the Committee dictate a federal standard, but rather, that states be afforded the opportunity to craft their own standards by getting input from all education stakeholders, especially from the teachers and paraprofessionals on the front lines delivering services to children every day.

 

·         Clarify paraprofessionals’ duties.  Many special education paraprofessionals are currently asked to perform health-related or medical services for which they are not licensed or trained.  We, therefore, urge the Committee to include language that prohibits schools or school districts from requiring paraprofessionals to perform medical procedures or health-related services for which they have had no training and have no authority under state or local law to perform.

 

·         Expand professional development.  We urge you to consider turning the State Improvement Grant (SIG) program into a formula grant to states, including a hold-harmless provision so that no previous recipient receives less funding than under the competitive grant structure.  We also encourage you to establish another formula grant similar to Title II of NCLB, which drives professional development dollars down to the local level, to not only offer expanded training to all educators, but to significantly expand personnel recruitment and retention efforts.

 

·         Supplemental services.  We are concerned about the inclusion of provisions governing supplemental services.  Supplemental services are designed to be compensatory in nature, giving extra help to low-income students who are in schools labeled “in need of improvement.”  If Congress were to fully fund Title I, there would be no need to dip into already-scarce IDEA funds. 

 

·         Discipline.  We applaud your recognition that education services should continue for students who are disciplined for wrongful conduct.  We urge you to include additional language that emphasizes that alternate education settings must be of high quality.  NEA does, however, have concerns that the rights of disabled students and their parents are not clear enough.  We urge you to maintain the requirement to conduct a functional behavior assessment and create a behavior intervention plan for students with disabilities who are to be removed from the classroom and educated in an alternative setting.

 

We offer these comments with the hope that you will continue to encourage discussion about how to improve IDEA for the benefit of special needs children and their families.  We have provided additional detail on these issues as well as some additional suggestions in the attached document.  We thank you for your efforts to improve services and results for children with disabilities and look forward to continuing to work with you.

 

Sincerely,

 

 

Diane Shust                                                                              Randall Moody

Director of Government Relations                                             Manager of Federal Policy and Politics

 

 


National Education Association Comments on H.R. 1350

 

 

I.                   Personnel Standards

 

NEA supports ensuring that all personnel who deliver services to special needs students are highly qualified.  We note, however, that H.R 1350 incorporates the “highly qualified” definition contained in the No Child Left Behind Act (NCLB).  This definition, as it is currently written, does not “fit” well within the context of special education teachers – some of the nation’s most highly trained educators. 

 

We believe that a special educator who is fully licensed or certified under state law should be deemed “highly qualified” for purposes of IDEA and NCLB.  Absent this clarification, thousands of special education teachers would not only have to be licensed or certified under state law – an already challenging standard – but might also need to have multiple undergraduate majors in different content areas.  This is unrealistic and could require special educators to return to school to take dozens of additional courses merely to keep their jobs.  Such additional coursework is not paid for by any provision of this bill, nor does H.R. 1350 require that states or localities pay. 

 

We do understand and agree with the desire to ensure that students are taught academic content by those who know the subject matter best and are qualified to do so.  In the real-world operation of our schools, however, special education teachers regularly consult with content teachers as they deliver specialized instruction to their students.  We, therefore, urge you to define a “highly qualified” special educator as one who is certified or licensed under state law as a special education teacher.

 

We are also concerned about the lack of clarity regarding personnel standards for paraprofessionals as well as related service providers.  We hope that further consideration will be given to these issues and that we might be able to offer specific language suggestions before this bill proceeds to consideration by the full House.

 

II.                Funding

 

A.  Full Funding.  NEA supports mandatory full funding of IDEA.  Despite the bill’s recognition of the need to set IDEA on a path toward full funding, in reality, the proposed authorization levels represent a cut from current law.  The current IDEA authorization level is set at 40 percent of the average per pupil expenditure.  At a minimum, we would recommend retaining the authorization level in current law.

 

B.  Eliminate the 12 percent cap on maximum state grant amounts.  In addition to the harmful effects of failing to provide full funding, H.R. 1350 contains a cap on the maximum amount a state can receive under Part B.  The legislation states that the maximum amount of federal funding under Part B is tied to the percentage of students with disabilities in the states’ population aged 3-17.  If the percentage of students with disabilities aged 3-17 exceeds 12 percent of a state’s overall population in that age range, the state receives no additional funding to help serve these students. 

 

This cap will negatively impact some states immediately.  In its 23rd Annual Report to Congress, the Office of Special Education Programs at the United States Department of Education documents that, as of the 1999-2000 school year, seven states (MA, ME, NJ, NM, RI, SC, WV) had special education student populations in the 3-17 age range that exceeded 12 percent of their 3-17 overall student population. Another seven states (FL, IN, IO, NY, VT, VA, WY) were just under 12 percent, which, given record and ever-increasing student enrollments, places them at risk for cuts in funding as well. 

 

We recognize that the 12 percent cap reflects an attempt to reduce inappropriate identification of students as disabled.  However, with the increased emphasis on early intervention and professional development for all education personnel, we believe this cap is unnecessary.  Instead, states and localities should have an opportunity to employ enhanced early intervention efforts – funded with new monies -- and professional development programs to address the issue of disproportionate representation.

 

            C.  Funding for Early Intervention activities.  According to National Conference of State Legislatures, states are currently facing budget deficits of approximately $80 billion.  The federal government currently provides only 18 percent of the cost of educating special education students, forcing states and localities to make up a federal shortfall of $10.5 billion.  In addition to meeting the federal commitment to provide 40 percent of the costs of educating students with special needs, we also urge the Committee to fund early intervention efforts with new money.

 

D.  Funding for Freely Associated States and Small-State Administration funding.  We believe that funding for the Freely Associated States should continue and that the state administration set-aside ($550,000) for small states is too small.  Given the increased demands on states – the requirements of NCLB, the state budget crises, and the increased requirements contained in H.R. 1350 – we believe states need increased resources to successfully implement IDEA and NCLB.

 

III.             Reduction of Attendance at IEP Meetings

 

NEA applauds of H.R. 1350’s recognition that IEP meetings are often scheduled at times that make participation of some teachers impossible.  We thank you for allowing IEP team members to use teleconferencing, and where possible, videoconferencing to participate in IEP meetings. 

 

We are concerned, however, about provisions that allow a parent and school district to excuse from participation any IEP member.  Since this provision was written with teachers in mind, we believe that the teacher should also have to consent.  Furthermore, we strongly urge you to consider including language that prohibits a school district (or school) from preventing a teacher from attending an IEP meeting if he or she so chooses.  NEA believes that for IDEA to work well for students with disabilities, the law ought to encourage and support the maximum amount of participation possible by all members of an IEP team.

 

IV.            Paperwork Reduction.  NEA is pleased that H.R. 1350 recognizes that paperwork burdens are frustrating educators and getting in the way of providing effective instruction.  We, therefore, applaud your efforts to remedy this problem and refocus IDEA on student achievement. 

 

H.R. 1350 allows a parent to consent to having a three-year IEP written for his/her child.  We are uncertain as to whether this will actually reduce paperwork.  Such a change may help alleviate paperwork burdens in some states.  Yet, in others, particularly those that have voluminous content standards for each grade level, a three-year IEP might actually increase paperwork burdens for educators.

 

We also have concerns regarding the proposal to allow 10 states to waive certain paperwork requirements.  Paperwork burdens are a problem in every state; therefore, we urge you to include a requirement that all states design and implement paperwork reduction plans over the next three years.  In addition, NEA believes that not all paperwork requirements should be waived, as some are designed to protect the rights of students and their families as well as foster better communication between teachers and parents.

 

Given the uncertain results of phasing out short-term objectives for some students, allowing voluntary three-year IEPs, and waiving an unspecified number of paperwork requirements, NEA would urge you to consider another alternative to paperwork reduction:  a transition period to allow states to develop a comprehensive approach to paperwork reduction.  States could be given until the end of the 2005-2006 school year (the year in which annual assessments are required under NCLB) to convene all stakeholders and:

 

§               Design paperwork reduction plans, using the U.S. Department of Education’s guidance to develop a model state IEP form;

§               Develop ways to better incorporate technology into the IEP process as well as maintenance of records;

§               Develop an alternative to short-term objectives that are both aligned with state content standards;

§               Develop an alternative to short-term objectives that allow teachers and parents to monitor the progress of students who are so cognitively impaired that they do not participate in the general curriculum;

§               Develop strategies that allow state and local data collection systems employed for NCLB purposes to be integrated or compatible with IEP databases or IDEA-related data collection systems; and

§               Develop and implement a technical assistance plan to disseminate the state-developed paperwork reduction plan and provide training to administrators, teachers, paraprofessionals, and related service providers.

 

Again, because paperwork is a problem in every state, we urge the Committee to require every state to address this issue.

 

V.                 Educator Working Conditions and Professional Development

 

A.  Maximum Caseload Policies for Special Educators.  Most states do not have policies that establish maximum caseloads for special educators.  While many states have passed laws relating to class sizes in general education classes, particularly in the early grades of K-3, no such commitment to low student-to-teacher ratios exists for special educators.  Therefore, while a general education teacher may only have 18 students in her 1st grade class, it is not unusual for a special educator to be responsible for providing services to twice that many students.  Along with paperwork burdens, special educators most often cite unmanageable caseloads as the reason they leave their positions, and sometimes the teaching profession.  NEA strongly urges you to require all states to establish policies regarding caseloads for special educators.

 

B.  Clarification of paraprofessionals’ duties.  Many special education paraprofessionals are asked to perform health-related or medical services for which they are not licensed or trained.  This not only puts students at risk, but it places the paraprofessionals – and potentially the school districts – at risk of legal liability.  We, therefore, urge the Committee to include language that explicitly prohibits schools and school districts from asking or requiring paraprofessionals to perform such tasks.

 

            C.  Expanding Professional Development.   NEA believes that providing students with disabilities a world-class education requires the expansion and enhancement of professional development and training of educators, as well as improving educators’ working conditions.

 

NEA appreciates the focus of the State Improvement Grant (SIG) program on professional development alone.  We are concerned, however, that since not all states receive SIG money (as it is a competitive program), some states will not get the benefit of this essential funding stream.  Therefore, we would urge you to consider turning the SIG program into a formula grant to states, including a hold-harmless provision, so that no previous SIG recipient receives less funding than it would have under the competitive grant structure.  If you maintain the current competitive grant structure, we would encourage you to include general educators, professionals with expertise in early intervention strategies, and professionals with expertise in positive behavior supports on the peer-review panels examining applications.

 

We would also encourage you to establish another formula grant similar to Title II of NCLB, which drives professional development dollars down to the local level.  This would allow local education agencies greater access to professional development in collaboration skills, effective IEP writing (particularly in the area of integrating state content and performance standards into an IEP), classroom-based techniques in identifying students for early intervention supports, classroom-based techniques in assessing students for their potential need for special education services, training on positive behavior supports and strategies, and enhanced training in how to accommodate instructional methods for students with disabilities.  This professional development can and should be available to all educators – administrators, special and general education teachers, paraprofessionals, and related service providers.  Furthermore, it would allow local education agencies to expand personnel recruitment and retention programs so that our nation’s public school children not only learn from the best and brightest, but get the individualized instruction they deserve.

 

VI.            Supplemental Services.  NEA is very concerned about the inclusion of and lack of clarity surrounding supplemental services provisions.  Supplemental services are designed under NCLB to be compensatory in nature, giving extra help to low-income students who are in schools labeled “in need of improvement.”  If Congress were to fully fund Title I, there would be no need to dip into already-scarce IDEA funds. 

 

Furthermore, the language in H.R. 1350 indicates that any student with disabilities in a school needing improvement should be afforded access to supplemental services on an “equitable basis.”  However, students with disabilities are already entitled to a much wider array of supplemental aids and services as a function of their IEPs.  

 

Finally, the lack of specificity regarding the funding of these services raises the question of whether an unlimited amount of IDEA funds could be used for supplemental services.  Is there a cap on the amount of IDEA funds that can be drained out of a local school’s IDEA funds?  What if a child is both a Title I student and an IDEA student?  Does that mean that the student is entitled to twice as much funding for supplemental services?  If so, we believe this may create inherently unfair results and an unnecessary drain of IDEA funds away from public schools.

 

VII.         Discipline.  Many NEA members have expressed frustration about the complexity of IDEA’s discipline provisions.  They have also expressed a strong desire to eliminate the dual standards of discipline in our schools.  All students should be held accountable for actions that threaten the safety of students and staff, as well as behavior that continually interferes with the learning process and environment. 

 

We applaud your recognition that education services should continue for students who are disciplined for wrongful conduct.  We urge you to include additional language that emphasizes that alternate education settings must be high quality. 

 

NEA does, however, have concerns that the rights of disabled students and their parents are not clear enough in the discipline section of H.R. 1350.  We urge you to maintain the requirement to conduct a functional behavior assessment and create a behavior intervention plan for students with disabilities who are to be removed from the classroom and educated in an alternative setting.  Such assessments will create more of a likelihood that positive behavior supports will be employed and that ultimately, the student’s behavior problem will be solved.  We also urge you to strengthen parents’ ability to advocate on behalf of their children, making it clear that they have the right to raise any and all mitigating factors that might affect the appropriate disciplining of students with disabilities.  For example, the law should clearly state that parents can raise – and schools and educators must listen to – the fact that their children’s conduct was the result of their disability.

 

VIII.      Reduction of Litigation.  We support requiring states to set up voluntary binding arbitration systems.  We also agree that a statute of limitations should be placed upon IDEA-related claims.  However, NEA is concerned that one year may be insufficient for some claims to become apparent to parents or for any deficiencies in IDEA-related services to manifest themselves in a student’s progress.  We would recommend a two-year statute of limitations from the date of the “incident.”

 

We also support the inclusion of an “opportunity to cure” provision to allow parents and school districts  to resolve any potential complaints before they rise to the more adversarial level of a full due process hearing.  We do, however, have concerns that the timeframe proposed in H.R. 1350 may be too short to allow the intent of this provision to be fulfilled.  Under H.R. 1350, a school district, upon receiving a specific complaint from a parent, must reconvene the IEP within 15 calendar days and must cure the problem or deficiency in services within 30 days of receipt of the complaint.  Scheduling issues might make this difficult to accomplish, particularly in areas affected by inclement weather for extended periods.  Therefore, NEA would recommend defining the 15 and 30-day requirements in terms of business days instead of calendar days.  This change would be consistent with IDEA regulations in other areas, such as discipline procedures, which are framed in terms of business days.

 

 

IX.            Research.  We have some concern about shifting the entire responsibility to conduct research in areas related to special education over to the Institute for Education Sciences with no involvement of the Office of Special Education Programs, an office that has demonstrated over time its keen familiarity with the unique and complex issues involved in the provision of special education services.  At a minimum, NEA urges the committee to require that all research relating to special education programs be jointly conducted by OSEP and IES.

 

Furthermore, we have strong reservations about shifting to IES OSEP’s responsibility to annually report to Congress on the status of the programs it administers.  This annual reporting is as much an accountability mechanism placed upon OSEP as it is an informational service to Congress and the public.  NEA believes, therefore, that the annual reporting requirement should remain within OSEP’s responsibilities.

 

X.               Transition.  We are unclear as to why H.R. 1350 includes are two different starting points – one at age 14 and one at age 16 – for the start of transition services and planning.  We support starting planning of all transition services when a student is 14.

National Education Association analysis of the Parental Choice Act of 2003 (H.R.1373)

 

H.R 1373, introduced by Representative DeMint (R-SC) would essentially make the Florida McKay voucher program a model for the nation.  In addition to draining public dollars out of public schools, this bill lacks accountability, completely undermines parental and students’ rights, threatens long-standing civil rights laws (IDEA and the Rehabilitation Act of 1973), and will do nothing to raise the achievement of students with disabilities.

 

·         HR 1373 drains already scarce IDEA dollars out of public schools and diverts them to private and/or religious schools.

 

►  States and localities are experiencing the worst financial crisis since WWII.  Compounding the widespread state budget shortfalls (which the National Conference of State Legislatures estimates to be approximately $80 billion nationally), the federal government has yet to achieve full funding for IDEA.  Despite the pledge to provide 40 percent of the cost of educating special needs students, federal funding is only at 18 percent.  As a consequence, states and localities in 2003 alone will be shortchanged approximately $10.5 billion.  The federal shortfall forces states and localities to dip into general education funds – money that serves all students -- to attempt to fund special education services.  At a time when funding at all levels – federal, state, and local – is tight, HR 1373 diverts already scarce funds away from public schools, which serve 90 percent of the nation’s school-aged population.

 

►  HR 1373 allows an unspecified amount of IDEA Part D and Part B funds to be used to create and implement (or expand) voucher programs for students with special needs.  Such an allowance drains potentially unlimited amounts of IDEA funds – funds designed to serve disabled students in the public schools – away from public schools.  This would hinder a school’s ability to provide adequate services to those students with disabilities who remain in the public school.

 

·         HR 1373 lacks accountability.

 

►    Under HR 1373, private schools accepting voucher money would not be required to meet any of the accountability standards contained in No Child Left Behind.  These schools, for example, would not be required to administer annual assessments, publicly report on student achievement, give parents individual reports on their children’s yearly progress, or employ highly qualified teachers.

 

►   Public schools do all of the above and more when it comes to providing services to disabled students.

 

·        HR 1373 completely undermines parental and students rights.

 

►    HR 1373 states that once a private and/or religious school accepts a voucher, it is “deemed, for both the programs and services delivered to the child, to be providing a free appropriate public education and to be in compliance with . . . the Rehabilitation Act of 1973.”  In other words, mere acceptance of voucher money would allow private schools to be deemed legally in compliance with IDEA and the Rehabilitation Act of 1973, although they would not be required to fulfill the requirements of either law.  Even worse, HR 1373 would not give parents the legal right to challenge a denial of services or failure to accommodate a student with disabilities.

 

►    Under HR 1373, private and/or religious schools accepting voucher funds would not be required to recognize any of the parental rights contained within IDEA.  Under current law, local school districts can place a student with disabilities in private school if the district is unable to meet the student’s individualized education program (IEP).  This placement decision is arrived at by a collective decision of the student’s IEP team, which includes the child’s parents, educators, and related service providers (where applicable).  The local district still maintains the responsibility of ensuring that the student receives the needed services, in whatever venue is decided upon by the IEP team.  As a result, public accountability is retained and parental rights are preserved.  The student and parents, therefore, retain all the rights they would have if the student were served by a public school.  HR 1373, however, provides no such parental rights nor any public accountability of private schools.

 

·        HR 1373 threatens long-standing civil rights laws.

 

►    HR 1373 is silent on whether private schools accepting federal dollars must comply with other civil rights laws.  While the bill does state that such schools cannot discriminate against students on the basis of race, color, or national origin, it fails to prohibit discrimination against students on the basis of disability status.  Furthermore, the bill is completely silent on whether private and/or religious schools accepting federal dollars would be able to discriminate in hiring on the basis of race, color, national origin, religion, gender, or disability.

 

·        HR 1373 does nothing to ensure improved achievement levels for students with disabilities.

 

►   There is no scientific or research-based evidence that voucher programs raise student achievement.  Given No Child Left Behind’s focus on utilizing evidence-based practices to teach reading, deliver professional development, utilize technology, and more, it would be totally inconsistent with federal law to allow federal dollars to be used in a manner that lacks a solid evidentiary basis.

 

 

For more information about the flaws of the Florida McKay voucher program, read:

 

“Jeopardizing A Legacy:  A Closer Look at IDEA and Florida’s Disability Vouchers,” a special report by People for the American Way and Disability Rights Education and Defense Fund (March 2003), www.pfaw.org.

  

National Education Association                                                                                                                     March 2003