As of the beginning of July, the prospects of a conference on the House and Senate versions of IDEA seem very dim. Nor has anything further been heard about the possibility of the House bill’s being attached to another bill. Although the Senate IDEA passed by a vote of 95-3, the House could claim that their bill, too, is bipartisan because 34 Democrats voted for it. In fact, the amendment allowing the governor of the state to set attorney’s fees was introduced by a Democrat, Ed Case of Hawaii.

Unless the members of the National Parent Coalition to Protect IDEA succeed in changing minds and hearts, it is unlikely that members of the 109^th Congress will be any more responsive to parent concerns than were members of the 108^th Congress. It is more likely that both the new House Education and the Workforce and Senate Health Education, Labor and Pensions Committees will reintroduce the current bills with little or no change. Aside from the full funding issue, the changes of concern to parents and advocates are in Sections 614: EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS and 615: PROCEDURAL SAFEGUARDS of current law. Using the NASDSE side by side comparison of current law, the House Bill and the Senate Bill, and the Reports which accompany each bill, the following issues were identified. For ease of tracking, they are listed in the order in which they appear.

614: EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS

614 (a)(1) INITIAL EVALUATIONS

Initial evaluation will take place within 60 days of parental consent or State timeline Senate (C) (i)

Discussion: The Senate language might prevent unnecessary delay in evaluating a child.

There are no timelines in the House bill or in current law.

Failure of parent to respond to or give consent for an initial evaluation relieves education agency from responsibility for providing FAPE. House (D)(iii) and Senate (D)(ii)(III)

Discussion: Which has priority: parental control over the education of the child or the rights of the child to FAPE?

Rule of construction: the screening of a student to determine appropriate instructional strategies shall not be considered to be an evaluation for eligibility for special education and related services. House (E)

Discussion: Is this to ensure that regular education takes responsibility for the education of children?

614 (a)(2) REEVALUATIONS

Reevaluations are limited to once a year unless parent and LEA agree otherwise House and Senate (B)

Discussion: Reevaluations should be based on the needs of the child. Current law is silent on this issue.

614 (b) EVALUATION PROCEDURES

In determining eligibility for specific learning disability, both House and Senate no longer require a that a local education agency take into consideration a severe discrepancy between achievement and intellectual ability…", The House adds that "in determining whether a child has a specific learning disability, a local education agency may use a process which determines if a child responds to scientific, research-based intervention. The Senate adds to that sentence, "as part of the evaluation procedures described in paragraphs 2 and 3. House and Senate (6)

Discussion: The Senate language ensures that the child has the same evaluation procedures as children suspected of having other disabilities.

614 (c ) ADDITONAL REQUIREMENTS FOR EVALUATION AND REEVALUATIONS

The House waives an evaluation before a child to exit special education, including graduation. The Senate waives an evaluation before graduation. House (5); Senate (5)(B) (NOTE Although current law is silent on the issue, the regulations eliminate the requirement for an evaluation before graduation.)

Discussion: Without a recent evaluation, there is no documentation that the child continues to be a child with a disability for eligibility under Section 504 and other protections. The Senate language does require a local education agency to provide a summary of the child’s academic achievement and functional performance, which shall include recommendations on how to assist the child’s postsecondary goals.

614 (d) (1)(A) INDIVIDUAL EDUCATION PROGRAMS

Benchmarks or short term objectives in current law are eliminated except for the House provision for the continuation of benchmarks or short-term objectives for children with disabilities who take alternate assessments aligned to alternate achievement standards. House (i)(I)(cc).

Discussion: Many children with disabilities may need to have short term objectives for non academic areas.

A description of how the child’s progress toward meeting the annual goals will be measured and when periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other and periodic reports, concurrent with the issuance of report cards) will be provided. Senate (i)(III) The Report notes that "IEPs would also include other goals that the IEP Team deemed appropriate for the student, such as life skills, self advocacy, social skills, and desired post school activities."

Discussion: Details of how progress is to be reported are essential to ensure parents are adequately informed.

The term "appropriate accommodations" are substituted for "individual modifications’ in current law (House (i)(V)(aa) and Senate (i)(V)(aa)

Discussion: Both modifications, which may change the content of the standard material and accommodations, which change access to standard material, should be included.

The age for transition services is lowered to 14. Senate (i)(VIII)

Discussion: Both current law and the House delay provision of services until age 16. Needed services, such as self advocacy and job performance skills should be provided earlier.

614(d)(1)(B) IEP TEAM

Only one regular education teacher required to attend the IEP meeting House (B)(ii).

Discussion: The child’s opportunity for FAPE may be limited if all his/her teachers are not involved in the development of the IEP.

Member of the IEP team not required to attend if changes in his/her area of expertise are not being considered. House (3)(D) Senate (C)

Discussion: The House language merely says that parents and the LEA may excuse an IEP Team member if that member’s attendance is not "necessary. Senate language sets out standards under which teachers shall be excused, including requiring parent consent. The Senate requires the IEP Team to obtain the excused member’s input prior to the IEP meeting.

614(d)(3) (DEVELOPMENT OF THE IEP

IEP team shall consider academic, developmental and functional needs of the child Senate 3(A)(iv)

Discussion: The Senate language covers all aspects of the child. The House refers to academic and developmental needs. Current law refers to the strengths of the child only.

Behavioral support for the child whose behavior impedes his/her learning Section Senate (B)(i)

Discussion: The Senate "provide for" is stronger than the House "consider the use of’ positive behavioral interventions. If possible, add based on the results of a current functional behavioral assessment.

Optional Multiyear IEP for all ages House (5). IEP must be revised at least every three years and at natural transition points.

Discussion: Although the language requires a "statement of measurable annual goals" and a "streamlined annual review process", it is not clear how this differs from current practice.

Optional Three year IEP starting at age 18. Senate (5)

Discussion: The intent is to plan for postsecondary options

614 (B) FINDINGS; SENSE OF CONGRESS

Medical diagnosis of disability is required for eligibility for services House (2)(A)

Discussion: The intent is to eliminate students with learning disabilities and emotional disorders from services under IDEA. This was an amendment that failed on the floor of the House.

Students with behavioral problems who have not been diagnosed by a physician or other person certified by the State health board as having a disability should be subject to the regular school disciplinary code. House (2)(B)

Discussion: This was the Shadegg amendment which also failed on the floor of the House.

SECTION 615 PROCEDURAL SAFEGUARDS

615 (b) TYPES OF PROCEDURES

An opportunity for voluntary binding arbitration House (b) (5); (e)(2)

Discussion: Binding arbitration eliminates the opportunity for further legal action. Current law and the Senate bill are silent on the issue.

Statute of limitations on due process complaints. House one year (6); Senate 2 years (f)(D)

Discussion: There is no statute of limitations in current law. The parent may not recognize the significance of the violation immediately.

A description of specific issues are required in a complaint. House (7)(A)(ii)

Discussion: The House language is very restrictive. The Senate retains current law which calls for a description of the nature of the problem.

615 (c ) CONTENT OF PRIOR WRITTEN NOTICE

Current law, and the House and the Senate bills require 1) a description of the action proposed or refused by the agency; 2) an explanation of the agency’s proposal or refusal, and 3) a description on evaluation procedures, tests, etc. on which the decision was made. However, the House bill eliminates a description of other options or factors that are relevant to the decision which is in both current law and the Senate bill.

Discussion: All factors relevant to the child’s rights should be included in the notice.

The Senate bill gives timelines for responding, reviewing and if necessary amending a due process request. Senate (2)

Discussion: These requirements prevent unecessary delay in responding to a due process complaint.

615 (d) PROCEDURAL SAFEGUARDS NOTICE

Requirement for notice to be sent upon registration of a complaint are omitted and written request by a parent required. House (1)(B)(C)

Discussion: Both current law and the Senate bill require copy of procedural safeguards to be sent upon registration of a complaint. Current law is silent on request of a parent; Senate language does not require written request.

The notice requires ‘a description’ of procedural safeguards. House (2)

Discussion: Both current law and the Senate require a "full explanation" The House requirement is much weaker.

Contents of the prior notice shall include the time period in which to make complaints, the opportunity for the agency to resolve the complaint, and the availability of mediation. Senate (2)(E)

Discussion: The Senate language aims to ensure all relevant information is presented. Current law and the House are silent on this issue.

615 (e) MEDIATION

Voluntary binding arbitration, including ensuring that parents understand that the decision made by the arbitrator is final is described. House (B)(2)

Discussion: Parents still may not realize that there is no possibility of challenging the decision of the arbitrator. There is no such provision in either current law or the Senate bill.

615 (f) IMPARTIAL DUE PROCESS HEARING

A meeting with the local education agency to resolve the complaint is to be held within 15 days of receiving notice of a complaint. House (B)(i); Senate (B)(i)(I)

Discussion: Initial efforts to resolve problem may be delayed at least 15 days

Time for resolution of the complaint before due process; 30 days House (B)(ii), 15 days Senate (B)(ii)

Discussion: If the meeting does not occur until the 15 day deadline, resolution of a complaint may further be delayed at least 30 days.

Qualifications for a hearing officer. Senate (3)

Discussion: Current law and the House are silent on the issue.

615 (i) ADMINISTRATIVE PROCEDURES

Only 90 days from date of decision or State’s time limits to appeal decision of hearing officer Senate (2)(B)

Discussion: Parents have very little time to decide to appeal. Current law and the House are silent on this issue.

Amount of Attorneys fees set by the Governor in the House (C)

and

Attorneys fees to prevailing party 1) who is a parent 2) who is a local education agency from an attorney who files a complaint that is frivolous unreasonable or without foundation or 3) who is a local education agency from an attorney or a parent whose action was presented for any improper purpose, such are to harass or cause unnecessary delay. Senate

Discussion: Either House or Senate bill will have a negative impact on the parent’s ability to file a complaint.

Parents can represent their child in court . The Senate (4)

Discussion: Current law and the House are silent on this issue.

615 (j)(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING

School personnel can order a change of placement of a child with a disability who violates a code of student conduct. House (j)(1) Senate (k)(1)(A)

Discussion: Current law allows change in placement for weapons, drugs, or danger to self or others. This change can be used to move undesirable children from the regular classroom.

Change of placement may last more than 45 days House (j)(B)

Discussion: This provision is open ended. Under current law, if the IEP team determines it appropriate, the child may remain in the alternate interim placement longer than 45 days.

Functional behavioral Assessment and Manifestation determination eliminated in House bill Senate maintains manifestation determination. (k)(C). If behavior is not a manifestation of the disability, disciplinary procedures applicable to children without disabilities may be applied. Senate (k)(1)(B)

Discussion: It will be easier to remove a child with a disability from the regular education setting.

(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES

A local education agency shall not be deemed to have knowledge that the child has a disability if the parent of the child has not agreed to allow an evaluation Senate (C)