Legislative Notice 14

May 12, 1997

Calendar No. 46

Reported from the Committee on Labor and Human Resources, without amendment, May 7, 1997 by unanimous vote. S. Rept. 105-17.

• The Senate began consideration on Monday, May 12, 1997. At the present, there are 17 cosponsors of this bill, 10 Republicans and seven Democrats.
• The House is scheduled to consider its companion bill (H.R. 5) on Tuesday, May 13, 1997 under suspension of the rules.
• The bill requires a "maintenance of effort" on the part of states to ensure that more dollars will actually go to students in the classroom.
• The bill provides relief from IDEA funding mandates by giving schools more flexibility to actually reduce their own IDEA funding levels AFTER Federal appropriations reach $4.1 billion.
• To limit the mounting costs of IDEA litigation, States are required to offer voluntary mediation to parties involved in IDEA disputes. Further, the bill eliminates attorneys' fees for Individual Educational Plan hearings and for mediation prior to due process hearings.
• The bill allows discipline of disabled children found carrying a weapon or possessing, using or selling a controlled substance while at school or a school function for the same amount of time that a child without a disability would be, but for not more than 45 days.
• The Administration strongly supports passage of S. 717. See page 6 for Administration Position.

Title I -- Amendments to Individuals with Disabilities Education Act (IDEA)

Part A -- General Provisions

Section 603: Creates an Office of Special Education Programs within the Department of Education's Office of Special Education and Rehabilitative Services. This office will have the principal responsibility for administering and carrying out this Act.

Part B -- Assistance for the Education of Children with Disabilities

Section 611: FUNDING FORMULA

• The current funding formula is maintained until part B of the IDEA reaches $4,924,672,200. When this threshold is reached, yearly child counts based on disability will no longer determine a State's allotment. Thereafter, a State's allotment will be based on the following:

(1) the amount the State received in the year prior to the threshold amount being reached; and

(2) the State's proportional share of funds that exceed that previous year's appropriation, based on 85 percent on the State's census data for children from 3 through 21, and 15 percent on the State's poverty rate.

Section 612: STATE ELIGIBILITY

• Clarifies current law so that States, to receive part B funds, must make available a free and appropriate public education to all children with disabilities, including those children with disabilities who have been suspended or expelled from school.
• States must conduct child find activities. This includes the identification of children in private schools and a process to determine which children are in need of special education and are receiving it, all while attempting not to label children as disabled.
• To the maximum extent possible, children with disabilities are to be educated with children who are nondisabled. Special classes, separate schooling, or other removal of children with disabilities from the regular classrooms should occur only when the severity of the disability is such that education in regular classes cannot be achieved satisfactorily.
• To the extent consistent with State and Federal law, funds provided under IDEA may be used for services at private and parochial schools.
• Reimbursement for private school placement may occur if parents give notice of their intent at the most recent Individualized Educational Planning (IEP) meeting or written notice ten days before they transfer the child to the private school.
• The maximum amount of money to provide special education for children in private schools is limited to a proportional amount between Federal part B IDEA funds and the number of disabled students in private schools within a State.
• Parents may be reimbursed for the cost of a private educational placement when a due process hearing officer or judge determines that a public agency had not made a free appropriate public education available to the child, in a timely manner, prior to the parents enrolling the child in that placement without the public agency's consent. Previously, the child must have had received special education and related services under the authority of a public agency.
• Clarification is made so that health services provided to Medicaid-eligible children with disabilities are not disqualified for reimbursement by Medicaid agencies because they are provided services in a school context in accordance with the child's IEP.
• States must maintain current levels of expenditures for special education and related services for children with disabilities from one year to the next. Waivers for exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the State's financial resources are allowed. Failure to maintain previous levels of spending will result in reductions of the IDEA monies equal to the same amount by which the State reduced funding from the previous year.
• States are required to determine if there is a disproportionate number of long-term suspensions and expulsions of disabled children and if so to take appropriate action.

Section 613: LOCAL EDUCATIONAL AGENCY ELIGIBILITY

• Local Educational Agencies (LEAs) are required to submit an application only once to State Educational Agencies (SEAs), instead of once every three years as under current regulations.
• LEAs are required to maintain current efforts for the education of children with disabilities. Exceptions are provided for the following:

  (1) voluntary departure, by retirement or otherwise, or departure for just cause, of special education personnel who are paid at or near the top of the agency's salary scale;

  (2) a decrease in the enrollment of children with disabilities;

  (3) the end of an agency's responsibility to provide an exceptionally costly program to a child with a disability because the child has left the agency's jurisdiction, no longer requires such a program, or has aged-out with respect to the agency's responsibility; and

  (4) the end of unusually large expenditures for equipment or construction.

• In any year in which amounts authorized under part B exceed $4.1 billion, an LEA may treat, as local funds, up to 20 percent of the funds it receives under part B that exceed the amount it received in the previous fiscal year, effectively permitting local schools to reduce the level of local expenditures for special education and related services.
• Where charter schools are within an LEA, the bill directs LEAs to serve children with disabilities attending charter schools in the same manner as it serves children with disabilities in its other schools and directs LEAs to provide part B funds to charter schools in the same manner they provide such funds to other schools.

Section 614: EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS and EDUCATIONAL PLACEMENTS

• Parents must provide informed consent before the initial evaluation of a child, but that such consent shall not be construed as consent for placement for the receipt of special education and related services. If a child's parents refuse consent for evaluation, an LEA may continue to pursue an evaluation by using the mediation and due process procedures also provided in the bill, except to the extent that it is inconsistent with State law relating to parental consent.
• Reevaluations are to be conducted if conditions warrant a reevaluation or if the child's parents or teacher requests a reevaluation, but at least once every three years. Informed parental consent also must be obtained for reevaluations, except that such informed consent need not be obtained if the LEA can demonstrate that it has taken reasonable steps to obtain consent and the child's parents have failed to respond.
• The bill requires that if the determinant factor for such a child's eligibility under IDEA is lack of proper instruction in reading or math or limited English proficiency, they should not be eligible. The intention is to avoid improperly including children in special education programs where their actual educational difficulties stem from another cause.
• An IEP must include an explanation of the extent, if any, to which a child with a disability will not participate with nondisabled children in the regular class and in the general education curriculum including extra-curricular and non-academic activities.
• Beginning at age 14, a child's IEP must include a "transition service needs" statement that focuses on how the child's educational program can best create a successful transition to life after secondary school. This is to augment, and not replace, the current "transition services" requirement where children receive instruction, community experiences, the development of employment and other post-school objectives and, when appropriate, independent living skills and a functional vocational evaluation.
• LEAs are required to review a child's IEP at least once per year to determine whether the annual goals of the child are being achieved.

Section 615: PROCEDURAL SAFEGUARDS

• The bill simplifies the content and process of delivering notices to parents about their child's rights.
• The bill specifically excludes the payment of attorneys' fees for attorney participation in IEP meetings, unless such meetings are convened as a result of an administrative proceeding or judicial action.
• To encourage early resolution of problems, the bill requires States to offer mediation as a voluntary option to parents and LEAs as an initial process for resolving disputes. However, the bill requires that a State's mediation system may not be used to delay or deny a parents right to due process.
• The bill allows for a disciplinary change of placement or suspension for any child with a disability for not more than 10 school days. If found carrying a weapon or possessing, using or selling a controlled substance while at school or a school function, the bill also allows for a child with a disability to be disciplined for the same amount of time that a child without a disability would be, but for not more than 45 days.
• If a child's actions are not a manifestation of his or her disability, then the bill allows the same disciplinary procedures that apply to children without disabilities.
• If parents disagree with a determination that the child's behavior was not a manifestation of the child's disability, the parents may request an expedited hearing.

Section 619: PRESCHOOL PROGRAM

• Under a new formula, no State will receive less than it received in fiscal year 1997. Beginning in fiscal year 1998, all new appropriations above the FY 97 level will be 85 percent based on the general population of children aged 3 through 5, and 15 percent on the poverty rate in the State. The formula also includes the same minimum and maximum allocation provisions that apply to the new formula under the Grants to States program.

Part C -- Infants and Toddlers Early Intervention Program

• The bill permits a State to use its part C funds for initiating, expanding, or improving collaborative efforts related to at-risk infants and toddlers, including: establishing linkages with public and private organizations, services and personnel for identifying and evaluating at-risk infants and toddlers; referring those children to other (nonpart C) services; and conducting periodic follow-ups on each referral to determine if the child's eligibility under part C has changed.
• Part C of the IDEA is authorized for $400,000,000.

Part D -- National Activities for the Education of Children with Disabilities

Current law authorizes nineteen funded and unfunded discretionary programs. This legislation consolidates these programs into four broad areas.

Subpart 1: STATE PROGRAM IMPROVEMENT GRANTS

• The bill establishes new State Program Improvement Grants to assist in personnel training.

Subpart 2: COORDINATED RESEARCH, PERSONNEL PREPARATION, TECHNICAL ASSISTANCE AND SUPPORT AND DISSEMINATION OF INFORMATION

• The bill retains the authority, substantially unchanged from current law, to fund the Parent Training and Information Centers. However, the bill does add authority to fund local parent organizations, referred to in the bill as "community parent resource centers."

"The Administration strongly supports Senate passage of S. 717 as a major step towards ensuring high-quality educational opportunity for all students. Reauthorization of the Individuals with Disabilities Education Act (IDEA) reaffirms and strengthens this commitment to children with disabilities and their parents. This legislation is the product of comprehensive bipartisan negotiations involving both chambers of the Congress and the Administration, with broad public input from many individuals and organizations. It places a strong emphasis on teaching and learning, and will do much to help improve education results for the 5.8 million children with disabilities who are served under the IDEA."