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TITLE:The National Disability Policy: A Progress Report, December 2001 - December 2002-Education
Author: National Council on Disability, http://www.ncd.gov (KACW 9/4/03)
Kathy’s Note: The National Council on Disability’s progress report is a 125 page document, covering a variety of issues, such as Civil Rights, Education, Health Care, Long-Term Services and Supports, Youth, Employment, Welfare Reform, Housing, Assistive Technology and Telecommunications, Transportation, and International Issues and Homeland Security. After much thought, I have decided to prepare a report on the broad issues and prepare a report on each of the above issues.
The Relationship Between the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind (NCLB): In 1975 IDEA was passed to consistently produce quality outcomes for students with disabilities. Special education is statutorily defined as "specially designed instruction" that meets the "unique needs" of these students; each student’s individualized education program (IEP) is to set forth his or her unique needs and individually designed instruction; and each student’s placement is to be based on the IEP and be no more restrictive than necessary. IDEA’s basic premise is that all children with disabilities have a federally protected civil right to have free appropriate public education that meets their schooling and related service needs in the least restrictive environment, in regular classes, in the school the student would attend if not disabled. The President, recognizing the role that IDEA plays in ensuring that no child gets left behind, provided immediate and firm support of IDEA in his New Freedom Initiative and in his No Child Left Behind education proposal, which was passed by Congress in 2001. NCLB does not address the issues and concerns unique to students with disabilities, nor does it address practical details about how provisions are theoretically applicable to all students or all schools. The union of NCLB, this year’s report of the National Commission on Excellence in Special Education and the imminent reauthorization in 2003 of IDEA creates both grave risks and unprecedented opportunities.
School Choice: NCLB makes clear that all students are entitled to the benefits of choice. Where poor school performance triggers the school-choice provisions of the law, all students will have the opportunity to benefit. But the regulations also seem to indicate that the precise range of choices that a local district or local education agency (LEA) offers to students with disabilities receiving services under IEPs or under Section 504 plans need not necessarily be identical to the choices offered to other students. Many factors determine what transfer options must be made available when school choice is invoked. If distance or overcrowding result in the lack of a suitable alternative school, then no student, with or without a disability, will have transfer options within the public. For example, what if appropriate schools are available but inaccessible? Similarly, what other restrictions can school districts or LEAs impose on the transfer rights of students with disabilities that would not be applicable to their classmates? A complicating factor here relates to funding. The new regulations make clear that special education funding can and should by and large follow students, so that when schools receive new special education students as enrollees their funding will increase commensurately.
Testing: Universal testing is at the center of NCLB’s emphasis on accountability. Through testing, the relative performance of every school is to be judged, and their year-to-year changes in performance trigger funding, technical assistance, school choice and other statutory provisions. While in principle students with disabilities are expected to be tested, and their tests results counted along, NCLB gives states considerable authority in choosing tests, the problems of test validation (norming) for use with students with various disabilities are likely to increase with the number of tests in use. If testing is to be fair and produce reliable comparisons among all schools using the same tests, issues of reasonable accommodation such as extra time and use of assistive technology (AT) must be systematically addressed and uniformly resolved. To measure the services and the effectiveness of NCLB by student performance or comparative state performance is to make it too simple because it does measure key provisions of IDEA such as parental involvement and educating in the least restrictive environment.
Parental Involvement and IEP: The President’s Commission on Excellence in Special Education proposes to replace the current IEP with a document that will be judged by student outcomes. This means an IEP cannot be challenged or evaluated until it expires, since it only can be judged by its final results. The Commission also rejects the use of short-term "benchmarks." The proposal would make the IEP harder to change if it was inadequate or requires modification because of changed circumstances. It would also eliminate any legal grounds for parental objection to the terms of their child’s plan and the parental empowerment. The Commission calls for mediators and arbitrators to be drawn from outside of education or disability advocacy.
Eligibility Determination And Assessment: Rejecting the 13 categories of disability currently used to determine eligibility for special education services under IDEA, the Commission chooses a three-category classification system; 90 percent of currently covered students would be in the Category 3 group, which includes a variety of disabilities now assessed by psychometric, behavioral and emotional tests. With respect to several of the more controversial disability categories comprising Category 3, namely, mental retardation and emotional disturbance, the report devotes attention to the over-representation of students from culturally diverse backgrounds in these groups. The report plainly suggests that teacher referrals are the source of a high proportion of the referrals in these and other "high-incidence" disability categories.
Federal Funding: The Presidential Commission does not support a concerted effort to bring federal participation up to the so-called full-funding level of 40 percent of special education costs.
Charter Schools: The Commission endorses maximum flexibility in school choice for students with disabilities, recommending amendment of IDEA to allow special education funds to move with students and recommending amendment of other laws to further this flexibility. It also urges states to ensure an equitable flow of various types of funding to charter schools, but there is no requirement for charter schools to accommodate children with disabilities who exercise their choice.
Assistive Technology (AT): From the powered mobility device to the augmentative communication device to the assistive listening system or the synthetic speech output computer, technology has revolutionized the lives of students with disabilities. The system of accountability proposed by the national commission may create disincentives to the maximum use of AT. This is because the failure to use AT will result in lower test scores for some students with disabilities but the number of such students may be too small to make a material statistical difference in the overall performance. If aggregate scores are not affected by AT policy, the following question must be asked: What incentives or what mandates will the law contain to ensure its provision and use? Ironically, too, the smaller schools and districts, with presumably the least resources to provide AT, will face the greatest statistical need to do so, because for them the consequences of poor performance by even a few students may prove statistically and competitively more significant.
Access To Mainstream School Technology, Instructional Materials And Media: As electronic media become an ever more central part of the curriculum, it is important to make such media and school computers accessible. A key challenge in making mainstream school technology accessible is integrating general and special education technology funding. Education officials recognize the obligation to make school buildings physically accessible as a need that must be met out of mainstream construction funds, they do not always realize the need to make school computers, tech labs and other communications technology accessible as well. Like adding a ramp to a building after it has been constructed, the costs of retrofitting communications technology and infrastructure are typically far higher than the costs of incorporating such capabilities into the basic procurement and design strategy. Textbooks represent one area where technical and administrative issues surrounding accessibility have been widely discussed. ED commenced an effort with various stakeholders to develop voluntary textbook accessibility standards, responding to the varying and sometimes inconsistent textbook accessibility laws enacted in approximately half the states.
Accountability for Results and Transition: One of the best ways to measure accountability is to look at how students transition out of the school system. But policymakers have not developed a way to ability to define, measure and report accountability. The Presidential National Commission on Excellence in Special Education contemplates the collection of such data but offers no guidance on how to evaluated or factor into availability of technical assistance or of alternatives for students not being well served. Evaluation of transition outcomes is inevitably complicated by the involvement of two separate service systems, Special Education and Vocational Rehabilitation. These two systems will have to be equally and jointly responsible for the success or failure of transition before accountability can be achieved. New mechanisms must reward, assist and sanction both service systems. Although VR and special education are both overseen by Department of Education, the goals and procedures are very different. The legal and administrative infrastructure must be designed to enhance the new awareness and commitment. Among the structural features that would contribute to success are provisions facilitating transfer of ownership of AT between service systems or providing for joint ownership; provisions clarifying the role of school funds in out-of-school components of transitional plans and of VR funds in in-school components; provisions allowing parents to bring disputes between transitional service providers before appropriate officials for quick and binding arbitration; and provisions clearly delineating the outcome measures that will be used to determine the effectiveness of transition services and the timeframes within which they will be assessed.

Other agencies, such as Medicaid as a source of funding for AT and SSA may be involved with transition. All too many youth with disabilities are consigned to the benefit rolls because of inadequate systems for transitioning into higher education or self-supporting adult activities, the SSA sponsored a nationwide series of Youth Preparing for Tomorrow conferences in late 2001. From the findings of these conferences and from other outreach it has become clear that more than just the services and resources of the special education and vocational rehabilitation (VR) systems are implicated in successfully negotiating the passage from school to adult life. Adequacy of health services, reasonable predictability of income supports and access to AT, transportation and mainstream educational and labor market resources are all implicated in individual outcomes.

NCD Recommendations:

Congress seek testimony from parents and students who have been obliged to utilize due process in order to overcome low educational expectations, and who have benefited from the services and outcomes their determination brought about.
Congress develop a statute that meshes IDEA smoothly and seamlessly with NCLB. IDEA reauthorization should:
Be designed with input from students and former students with disabilities who have benefited from due process and other controversial procedures surrounding the individualized education plan process.
Adopt mandatory funding in keeping with the original commitment to fund 40 percent of the per pupil cost of special education and tie full funding of IDEA to full enforcement of it.
Provide authority and resources for effectively monitoring all aspects of the revised IDEA.
Mandate reporting for all students with disabilities in the state accountability reports and that the IEP be required to address the need for alternate assessments and individualized accommodations.
Incorporate strong antidiscrimination provisions aimed at ensuring that charter and other choice schools receiving funds, whether directly or indirectly, under NCLB or other federal programs be reciprocally required to provide the identical services and be accessible.
Make sure that the same requirements for physical access to facilities apply to program participation including access educational media included in the mainstream curriculum.
Mandate the Department of Education to review state regulations and provide instructions and technical assistance to ensure implementation requirements that follows the law without creating unnecessary paperwork.
Authorize and fund DOJ to independently investigate and litigate IDEA cases and administer a federal system for handling pattern and practice complaints filed by individuals.
Examine and simplify discipline requirements wherever possible, without eliminating any protections.
Over-representation issues be tackled head on with early intervention and prevention services in the early years and into general education, funded through Title I and other so designated funds.
Take steps to ensure that accountability extends to the use of and the assessment of students for AT.
ED take steps to implement regulations making mandatory such textbook accessibility standards.
ED update its policy guidance on the relationship between special education and performance testing.
Discretionary grants be made on a trial basis to education-rehabilitation agency partnerships for transitional services.
The Office of Disability Employment Policy should inquire into the operation, integration and impact of the youth advisory councils, and make suggestions for their continuance and improvement in the WIA reauthorization this year.
Congress seek testimony from young workers to determine how their input into the operation of programs affecting them can be most usefully provided, and how such programs can be most effective.

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