06/28/05 -- Proposed regulations issued by the U.S. Education Department earlier this month to implement the Individuals with Disabilities Education Improvement Act of 2004 do not diverge significantly from or add to the statutory language approved by Congress, according to a preliminary review by NSBA.
That legislation, signed into law Dec. 3, made significant changes to the federal law, incorporating many of the recommendations offered by NSBA.
“Local school boards gained significant authority in the implementation of this critical federal program, enabling parents, teachers, and administrators to focus on improved education outcomes for students with disabilities,” says NSBA Director of Federal Relations Reggie Felton.
The U.S. Education Department will consider the public comments it receives on the proposed rules, which were published in the Federal Register June 21, when it develops final regulations on the new IDEA. NSBA will submit formal comments to the department before the Sept. 6 deadline.
Meanwhile, NSBA has prepared a preliminary response to some of the issues in the rules of most concern to local school boards. The following response by NSBA is based on how the proposed rules address some of the issues NSBA raised in February, when the department sought recommendations on how the new IDEA law should be implemented:
• Highly qualified teachers -- The 2004 law added a definition of “highly qualified teacher” to IDEA.
The proposed regulations identify specific requirements to be met by teachers participating in an alternative certification program; teachers who do not teach core academic subjects; teachers teaching to alternate achievement standards; and special education teachers teaching multiple subjects.
“NSBA supports the need for highly qualified teachers for all students,” Felton says. “Yet, local schools boards continue to be concerned with the current shortage of special education teachers and the less than optimistic projections concerning the availability of new teachers.”
• Risk pools -- The new law allows states to reserve up to 10 percent of their allocation of federal funds to create a risk pool to help school districts provide services to high-need children with disabilities.
NSBA believes there is a great need for risk pools and urged the department to allow states that have already established such pools under different criteria to comingle those funds with newly created risk pools.
While the regulations do not provide for comingling of state and local funds, Felton says, they do recognize that there might be existing programs that should not be in jeopardy because of the new law.
• Overidentification and disproportionality -- The new law creates some confusion by referring to “children with disabilities with a particular impairment.”
The regulations clarify that this term means having limited strength, vitality, or alertness that adversely affects a child’s educational performance. This condition could be caused by chronic or acute health problems, such as asthma, attention deficit d³sorder, attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, or sickle cell anemia.
• Early intervention -- The new law permits a school district to use up to 15 percent of its IDEA funds for early intervention services.
This could include interagency financing structures for K-12 students who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment.
NSBA believes districts should also be able to use these funds for children from birth to age 5. Felton says, “There is ample research to suggest that earlier intervening services would reduce the need to refer students for special education programs.” The rules clarify that the emphasis for these funds should be on students in grades K-3, but do not limit use of the funds to those grade levels.
• Individualized education programs -- NSBA asked the department to clarify whether states may extend the 60-day timeframe for evaluating students to determine whether they should be served under IDEA.
The regulations clarify that the state must conduct an initial evaluation within 60 days of receiving parent consent, with the exception that the time may be extended if a child transfers to another school district. In that case, the new district must make sufficient progress, and the district and parent must agree on a new deadline for completing the evaluation.
The new law says a district may pursue an initial evaluation of a child if the parent fails to provide consent.
NSBA asked the department to clarify that a district’s authority to pursue an evaluation under these circumstances is purely discretionary. The regulations spell out various conditions under which districts can carry out evaluations without parent consent.
Felton urges local school board members to request a briefing on the proposed rules from their district’s special education administrators and let NSBA’s advocacy staff know if they have any concerns with the regulations.