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 29, 2003

U.S. House of Representatives

Washington, DC 20515

Dear Representative:

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 begins to recognize the real-world problems many educators face, including too much paperwork and too few opportunities for professional development.  However, in its current form, we believe the bill gets an “I” for incomplete.

Funding:  We are profoundly disappointed that H.R. 1350 does not provide for mandatory full funding of IDEA.  While we 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 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.  We strongly support the full funding amendments offered by Representatives Bass, Ferguson, and Simmons, and by Representatives Woolsey, McCollum, and Van Hollen.  If these amendments are not made in order, we urge you to vote NO on the Rule.  Votes associated with this issue may be included in the NEA Legislative Report Card for the 108^th Congress.

Vouchers: We also urge you to oppose the Rule should any voucher amendment be ruled in order, and to vote NO on final passage of the bill should any voucher amendment be adopted.  We are aware that Representative DeMint intends to offer his voucher bill, H.R. 1373, as an amendment.  Not only would this voucher plan undermine parents’ existing rights under IDEA, it would drain already scarce dollars from public schools.  The DeMint 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 sincerely hope that Congress does not sacrifice improvements in special education services by including overly partisan, divisive voucher provisions.  Votes associated with this issue may be included in the NEA Legislative Report Card for the 108^th Congress. 

Other Issues:  We urge Congress to take H.R. 1350 from an “Incomplete” to an “A” by making the changes suggested in the attached documents.  While incomplete in its current form, we believe the bill begins to address several important concerns: improving achievement for students with disabilities, improving services offered under IDEA, and improving the working conditions of our nation’s educators.  We hope that further changes can be made to refocus IDEA on improved achievement and services for children, rather than on paperwork and process.  We look forward to working with you in this regard.

Diane Shust                                                                              Randall Moody

Director of Government Relations                                              Manager of Federal Policy and Politics

How to take H.R. 1350 from an “Incomplete” to an “A”

·         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.   Furthermore, the personnel standards relating to paraprofessionals are unclear, and the standards for related service providers should be maintained as in current law. 

·         Eliminate the cap on Part B funds.  H.R 1350 contains a cap on the maximum amount a state can receive under IDEA Part B (the lion’s share of IDEA funds distributed by the federal government to states).   If a state’s percentage of students identified as disabled under IDEA exceeds 13.5 percent, the state cannot receive any additional funding to serve the additional students with disabilities.  As a result, two states (RI and WV) stand to lose some IDEA funding immediately because of this cap, and another three states (ME, MA, and SC) may soon be affected.  We recognize that the 13.5 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.

·          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 House 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. 

·         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 House 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 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 Congress 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 Congress 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.  Furthermore, under the Department of Education’s No Child Left Behind regulations, supplemental service providers are not required to abide by federal anti-discrimination laws when hiring personnel.  Therefore, federal funds from ESEA and potentially IDEA (if this provision of H.R. 1350 is not amended) could be used by providers who discriminate in hiring on the basis of race and religion.

·         Discipline.  We applaud the bill’s 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 students with disabilities 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.

·         Reduction of Litigation.  Again, we applaud H.R. 1350’s recognition of the need to place some reasonable limits on IDEA-related litigation.  However, we believe the statute of limitations on claims should be two years, rather than one year as proposed in the bill.

National Education Association analysis of the DeMint 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.