National Council on Disability Says Its Time to Make the Individuals with Disabilities Education Act Work Better
July 11, 2003

WASHINGTON- The National Council on Disability (NCD) today released an excerpt from its soon-to-be-released report, National Disability Policy: A Progress Report, December 2001 - December 2002, which highlights a number of issues related to education for students with disabilities, including the Individuals with Disabilities Education Act (IDEA), which is currently being reauthorized by Congress. The report also discusses the interaction between IDEA and the No Child Left Behind Act (NCLB).

The NCD report is written against the backdrop of historic change in the nation's education system. The chapter on education begins with lengthy analyses of the No Child Left Behind Act as it bears upon students with disabilities and of the report of the Presidential Commission on Excellence in Special Education. These analyses highlight areas in which NCLB and the Commission report either fail to address issues of great concern to students with disabilities, or support policies (such as restriction of parental due process rights and after-the-fact evaluation of individualized education programs) that NCD views as threatening to the ability of IDEA to continue as an effective tool for preparing students with disabilities in mainstream settings for full participation in society as adults.

School Choice: The NCLB makes clear that all students are entitled to the benefits of choice, and, where poor school performance triggers the school-choice provisions of the law, all students, including those with disabilities, should have the opportunity to benefit. NCD reports uncertainty about exactly how the new school choice provisions apply to students with disabilities, particularly in relation to compliance with IDEA requirements and federal monitoring and enforcement responsibilities. Special education funding can and should follow students, and NCD recommends clarification of the law's flexibility with respect to funds transfers, including inter-district or inter-LEA transfers. NCD also recommends that Congress incorporate into IDEA strong anti-discrimination provisions aimed at ensuring that charter and other choice schools receiving funds under NCLB or other federal programs be required to provide the identical services and accessibility to students with disabilities that would be required of public schools.

Teacher Training: The significant emphasis on testing in NCLB makes issues of training and qualifications of special education teachers all the more pressing. The NCD progress report points out that the NCLB implementation process needs to include detailed guidance on training and credentialing requirements for special education teachers and resources that will be made available to help these already highly skilled and well-trained professionals adapt to the new requirements.

Accountability: Under NCLB, students with disabilities are expected to be tested, and their test results counted along with the outcomes achieved by other students. Many key questions remain about how testing is to be done with this population. With the enactment of NCLB the Department of Education's (ED) August 2000 guidance on the applicability of testing requirements to IDEA is likely to be out-of-date or superseded by new provisions. NCD recommends that the ED update its policy guidance on the relationship between special education and performance testing.

The Presidential Commission on Excellence in Special Education Report: The Presidential Commission reports excessive bureaucracy, paperwork requirements, compliance reporting and other rigidities and technicalities that the Commissioners believe significantly interfere with the educational process, leading to Commission recommendations for reform within ED. On the other hand, NCD highlights a number of studies, including NCD's 2000 Back to School on Civil Rights report that catalogue a pattern of inadequate or absent federal monitoring and enforcement activities. NCD suggests that compliance and accountability should not be regarded as opposites or as mutually exclusive and recommends that Congress provide authority and resources for effectively monitoring all aspects of the revised IDEA over the coming years.

In responding to the Commission's move away from process complaint monitoring and toward student/school state performance data, NCD points out that special education has accomplished tremendous results for America and calls for caution to preserve what works while eliminating and replacing what does not. According to NCD, appropriate compliance monitoring remains the only way for insuring the education and related service inputs necessary to bring about the desired outcome goals and results.

The Commission recommends an outcome based approach to the individualized education program (IEP), with the evaluation of success determined upon expiration of the IEP, leaving little opportunity for the parent to challenge the plan during its development and implementation. The Commission report recognizes the need for dispute resolution with the introduction of binding arbitration and other conflict-resolution mechanisms. The NCD report expresses concern that the Commission does not clearly understand the issues from the parental perspective. Anecdotal evidence suggests the problems with the IEP process may have as much to do with the need of school districts to "cloak economic decisions in educational justifications" as it does with the desire of "unrealistic parents or avaricious lawyers" to rush into court. NCD points to the need for balance and reports that as long as schools are obliged to filter their placement, services and other special education decisions through the prism of costs, the right of parents to contest those decisions in impartial settings will be crucial to the vision of accountability and performance the Commission upholds. Accordingly, NCD recommends that Congress seek testimony from parents and students who have utilized due process to overcome low educational expectations and have benefitted from the services and outcomes resulting from the due process determination.

The NCD report points out that the Commission's recommendation for a three category classification system in IDEA may well serve to exacerbate rather than to solve the overrepresentation problem. Accordingly, NCD recommends that Congress consider the scope and availability of resources necessary to effectively impact the high-incidence diagnosis problems, bearing in mind that correction of the culturally diverse overrepresentation problem, and indeed reduction in the overall rate of increase in the number of students found eligible for special education services, will also depend on the ability of teachers and schools to provide adequate educational and related services. NCD reports that some students may be misdiagnosed because of poor educational performance which could be addressed with remedial education services.

While recommending a number of significant changes in the federal funding formula for Part B special education services, the Presidential Commission does not support a concerted effort to bring federal participation up to the so-called full-funding level of special education costs. NCD has strongly recommended increases to the 40 percent funding level that was the original intention of those who created the program.

NCD supports a number of the Commission's financial proposals, especially recommendations for extra federal support to defray costs associated with extremely high-needs, high-cost students, and the use of unspent funds to create safety nets for these students. Without attenuating the responsibility of the public school system to provide special education services to all students found eligible, NCD recommends that Congress look for means by which the relative roles of educational and budgetary considerations in school system decision making about individual children can be more clearly separated and differentiated.

Assistive Technology: Assistive technology (AT) represents one of the most important modalities for enabling students with a broad range of disabilities to participate and learn in the mainstream classroom. And yet, NCD reports that the system of accountability proposed by the Presidential Commission may actually create disincentives to the maximum use of AT, especially for students with low incidence disabilities. Even if the failure to provide and use AT results in lower test scores for some students with disabilities, the number of such students may be too small to make a material statistical difference in the overall performance of some larger schools and some school districts. If aggregate scores are not affected by AT policy, whatever the devastating impact of its denial on individual students with disabilities, the question must be asked what incentives or what mandates will the law contain to ensure its provision and use? Accordingly, NCD recommends that Congress take steps to ensure that accountability extends to the use of and the assessment of students for AT.

Electronic and Information Technology: And, finally, NCD recommends that IDEA make clear that the same requirements as apply to physical access to school facilities are also applicable to program participation, including access to electronic and information technology resources and educational media included in the mainstream curriculum. NCD recommends that ED take steps to implement regulations creating textbook accessibility standards by no later than the end of 2003.

NCD is an independent federal agency making recommendations to the President and Congress on disability policy. NCD first proposed and then drafted the original Americans with Disabilities Act.

For more information, contact
Mark Quigley or Martin Gould
202-272-2004
202-272-2074 TTY.

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