The Council for Exceptional Children (CEC) wishes to make it clear that we do not support any recommendation asking the U.S. Department of Education to promulgate a new set of proposed regulations for the IDEA Amendments of 1997. Professionals, parents, and other advocates are all anxious that final regulations be published as soon as possible, so that any additionally required policies and practices can be put in place by the states and local school districts by the July 1, 1998 effective date for key IDEA provisions.
At the same time, CEC will continue to urge the Department to make important changes in the final regulations as compared to the proposed regulations. After receiving wide input from the federations, divisions, and other units of the organization, CEC presented those needed changes in its formal written comments dated January 20, 1998. Those changes were further developed and reinforced in later communications to the Department. (See the CEC-NEA letter to Secretary Richard Riley, dated April 2, regarding the Department's interpretation of the effective date for implementation of the new IEP requirements, which can be found on CEC's web site: www.cec.sped.org.)
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Division for Learning Disabilities (DLD)
The Executive Board of the Division for Learning Disabilities (DLD), the largest division of the Council for Exceptional Children (CEC), has voted on and approved a Position Statement on the IDEA Regulations.
In announcing the results of the vote, the DLD President, Dr. Donald Deshler, stated, "This document now becomes an official DLD position."
We believe the U.S. Department of Education should issue revised regulations based on the comments received, and have a short period for further public comment (perhaps 30 days).
The Department's announcement that schools do NOT have to change IEP's by July 1, 1998, means almost no IEPs will be rewritten until school opens in the Fall, and the vast majority will not be rewritten until Spring, 1999, so there is a window of opportunity for a more thoughtful IDEA regulatory process.
DLD plans to submit comments in any new public comment period.
Following is the Statement as approve by the DLD Executive Board:
IDEA Regulations
(A Position Statement of the DLD Executive Board)
We would strongly urge Congress to take appropriate action to encourage the U.S. Department of Education to revise the Proposed IDEA Regulations, and to again issue Proposed IDEA Regulations for comment before issuing Final IDEA Regulations. It would be most helpful if the Department did this as soon as possible so implementation can take place during the 1998-99 school year.
It is critical to all students in all schools that the Final IDEA Regulations be properly written. Of course the education of students with disabilities absolutely depends on appropriate IDEA Regulations. Students with learning disabilities need intensive instruction from well-trained teachers capable of individualizing the curriculum to meet a student's unique needs. The Final IDEA Regulations need to more fully recognize these needs, as well as strike the appropriate balance with the educational needs of all children.
We would strongly urge Congress NOT to now amend the IDEA law passed just last year. While we have significant concerns with some provisions of that law, to reopen IDEA now would mean months of turmoil for Congress, schools, and students.
The Division for Learning Disabilities is concerned that the need for individually designed, very intensive instruction in very small groups, or one-on-one with a highly trained teacher is not receiving proper emphasis. Learning disabilities are often poorly understood by many educators, sometimes leading to identifying students as having learning disabilities when they do not, and at other times ignoring those with very significant but seemingly mild learning disabilities.
Intensive instruction is the only way to dramatically change the lives of students with learning disabilities. We would hope the Congress would join us in making that happen.
With over 13,000 members, the Division for Learning disabilities is the largest division of the Council for Exceptional Children. Its members are classroom teachers, college faculty, administrators, and others interested in the education of students with learning disabilities.
If you need further clarification, please contact Dr. Harold McGrady, Executive Director of DLD at (703) 671-4586 or e-mail at: hmcgrady@aol.com
CCBD in the second largest division of the Council for Exceptional Children. Its members are direct service classroom teachers, college and university faculty, local and state administrators, and others who share a common interest in the education of students with emotional/behavioral disorders."
"We would urge the Congress to take action now to ensure that the U.S. Department of Education revises the Proposed IDEA Regulations, again seeks public comments on the revised Proposed IDEA Regulations, and then issues Final IDEA Regulations. On an issue this important, this is the only way Congress, parents and educators can be sure our voices are being heard.
The Department has acted with commendable speed so far, and we would urge that the Department continue to do so. There is time available before the start of school in September, and even if Final IDEA Regulations are not in place until during the 1998-99 school year, that is preferable to having Final IDEA Regulations that are not crystal clear and in conformance with the spirit of the revised IDEA law.
Because the education of students with disabilities absolutely depends on appropriate IDEA Regulations, it is critical that the Regulations be properly written. Students with emotional/ behavioral disorders must have available in every school district a continuum of alternative placements where well-trained teachers can provide intensive individualized instruction.
CCBD would in the strongest possible terms urge Congress NOT to change the IDEA law passed last year. To reopen IDEA would mean that Congress (and all the rest of us) would face debate on almost every contentious issue in IDEA. That would not be productive for students, parents or educators.
It is critical that all children have the right to a free appropriate public education, and that the discipline provisions, as delineated in the new law, assure that no child is excluded from receiving an education. We know that suspension and expulsion are ineffective educational measures for changing inappropriate behavior. Rather research and our collective experience have shown the importance of positive behavioral interventions that both keep students in school and change their behavior.
In order to deal with the many challenges that face our educational communties in meeting the needs of students with emotional/ behavioral disorders, we strongly believe there is a need to increase in-school placement options. Separate classes and separate schools must be available for students whose needs cannot be met in a less restrictive environment.
CCBD believes that the continuum of alternative placements must be a reality in every school district.
We ask that education professionals, in concert with families, community agencies, and other collaborating institutions, be granted the legal means and opportunity to meet the mandates of PL 105-17 as written and passed by Congress.
CCBD asks the Department of Education to work cooperatively with Congress in the writing of the Final IDEA Regulations in the spirit of the cooperative effort of 1997."
January 20, 1998
Thomas Irvin
Office of Special Education and Rehabilitative Services
U.S. Department of Education, Rm. 3090
Mary E. Switzer Building
330 C St., SW
Washington DC 20202
Dear Dr. Irvin:
Thank you for this opportunity to comment on the NPRM for IDEA as published in the Federal Register on October 22, 1997. These comments are on behalf of the over 6,800 members of the Division for Early Childhood (DEC) of the Council for Exceptional Children (CEC).
First, we would like to take this opportunity to express our appreciation to the Department of Education for the extensive involvement Department staff had in the negotiations and development of the IDEA amendments enacted last year. The extensive time, effort and expertise of the executive branch was a valuable contribution to this difficult and unusual, but successful process.
In these comments, DEC has four purposes.
First, DEC requests in the strongest possible terms that the Department issue a complete NPRM for the Part H Program. As we noted in our July 28, 1997 letter to you, there continue to be serious regulatory issues that impact on the implementation of Part C (Part H) in states and communities. These include areas such as due process, the definition of nursing, the use of parents’ insurance proceeds, referral and evaluation. Ten years of implementation experience with these policies gives us opportunity for clarification or adjustment as needed. In addition, the new statutory language in areas such as natural environments, CHAMPUS reimbursement, personnel standards, and mediation requires regulatory clarification. Finally, numerous policy letters have been issued by the Department without any opportunity for public comment. Public input from parents and service providers on policies in these areas is very important. Without a compete NPRM, this input is not possible. We discuss this in more detail later in these comments.
Second, DEC requests clarification on the legal weight of the “notes” and the information contained in Appendix C- Notice of Interpretation of IEP Requirements of IDEA as included in the NPRM.
Third, DEC recommends that the Department pursue its original 1995 proposal to have a national expert panel prepare guidance for states on the eligibility criteria for developmental delay. The proposed model definition and guidance would be available for use at a state's discretion. The availability of this recommended practice is important for the Part C (Part H) (birth to 3) population, the preschool (3-5) population and the new age 6 through 9 option. DEC is very pleased that states and local districts will have the option to extend the use of developmental delay through age 9. It is essential that decision-makers have access to the findings of research and effective practice about the use of this category for young children. A DEC position paper on this topic will be forwarded to OSEP.
Finally, DEC offers the following comments on the NPRM of October 22, 1997.
Comments on Part B Regulations at Part 300 as these relate to Preschool Children with Disabilities
300.7(a)(2) - Child with a Disability. DEC supports the language in the NPRM including Notes 2 and 3, all of which relates to the expansion of the developmental delay option through age nine.
300.12 - General Curriculum. DEC notes that in some places in the NPRM, the term “general curriculum” applies to preschoolers (see 347(a)(2)(3)). In these cases, we suggest a note be added which indicates that for preschool children, the general curriculum is “the curriculum that is in use in early care and education settings”.
Further, DEC recommends that a “new” note be added to this regulation (300.12) to clarify the term “appropriate activities” as the term relates to preschoolers. Instead of the language in Question 1 in Appendix C of the NPRM, DEC suggests the following language- “appropriate activities refers to activities, materials and environments, that are chronologically age relevant and developmentally and individually appropriate”.
300.22 - Related Services. DEC appreciates and supports the reference to service coordination as a related service under question 31 in Appendix C of the NPRM. DEC asks that, to ensure consistency with Note 1 under 300.22 and Appendix C, service coordination be included with nutrition as examples of related services in the body of the regulation at Note 1. DEC has always supported the concept that regulations clarify that service coordination can and should be included as a related service in a preschool child's IEP/IFSP, as appropriate. Service coordination, as defined in Part C (Part H), is similar to and compatible with Part B definitions for related services such as counseling services, parent counseling and training, and social work services.
300.24 - Special Education. DEC recommends that a note be added that clarifies the settings in which preschoolers may receive special education services including but not limited to natural settings such as home and family, play groups, child care, preschools, Head Start programs, other pre- kindergarten neighborhood school classrooms and kindergartens or other settings that children participate in that do not have a disability. In addition, the “new” note should clarify that in the case of a preschooler under (b)(3) to ensure access to “general curriculum” refers to “the curriculum that is in use in early care and education settings.
300.121 - FAPE. DEC supports the language in this section including Note 1 which clarifies the obligation to provide FAPE no later than an eligible child’s third birthday. DEC does recommend that Note 2 be deleted as it confuses the IEP team with the team that determines eligibility.
300.125 - Child Find. DEC supports Note 3 related to responsibilities for child find for children from birth to age three years. However, we ask that clarification on the requirements related to evaluation in the case of children birth to age three years be provided. Part B and Part C (Part H) rules for evaluation are different and it is not clear which must be followed. For example, if school districts are evaluating infants or toddlers, must they use Part B or Part C (Part H) rules?
300.130 - LRE. DEC recommends that an additional note about settings for preschoolers be included. Possible language is “For preschool children, these settings include but are not limited to home and family, play groups, child care, preschools, Head Start programs, other pre-kindergarten neighborhood school classrooms and kindergartens as well as settings relevant for older children”. Settings should be, appropriate to the child’s needs, settings in which the child would participate if he or she did not have a disability. In addition, this note should include existing OSEP clarification on the payment for child care and the provision of services in child care settings and the use of Part B funds.
300.132 - Transition of Children From Part C (Part H)to Preschool Programs. DEC supports the language in the NPRM.
300.138 - Participation in Assessments. DEC recommends that a “new” note be added that states that “Assessment practices for young children should not necessarily be based upon practices appropriate for older children (grades 4 and above). Given the lack of validity and reliability of standardized group tests for young children, if such tests are given, caution should be taken in interpretation and use of the results.
300.142(e) - Private Insurance Use. DEC suggests that the language at(e)(1) be replaced with the following “Parental private insurance proceeds can be accessed only with informed parental consent. This consent can be revoked at any time and must be renewed annually.”
In addition, (2) should be amended to read “Informed consent must include providing the parent with a written description of any potential financial costs to the family. For purposes of this section, the term financial costs includes but is not limited to…“
Sections (2)(i)-(iii) should remain the same and a new (iv) should be added to read “a risk of losing eligibility for home and community-based waiver services based upon aggregate health-related expenditures.” A note also should be added to indicate that any other financial losses such as losses associated with Medicaid buy-ins also are included under (2).
300.142(f) - Proceeds from Public or Private Insurance. DEC recommends that this section of the NPRM and Note 4 be deleted.
300.244 - Coordinated Services System. DEC recommends that the phrase “birth through age 21 years” be included in (a) to clarify the appropriate use of these funds for younger children and their families. DEC supports the inclusion of the language in (b)(2) related to payment for service coordination for preschoolers. This can greatly assist states and localities in ensuring seamless systems of services for children birth through five years.
300.245 - 250 School-Based Improvement Plan. DEC is concerned that the language does not appear to include efforts related to preschool. DEC asks that clarification be included that these funds are intended for all children (birth through 21) with disabilities.
300.300 - Provision of FAPE. DEC supports the inclusion of the language in section (b).
300.309 - Extended School Year. DEC recommends adding a note to include language DEC prepared for reauthorization in January 1995 indicating that “the process for determining the length of a preschool child’s school year must be individualized and described in the child’s IEP/IFSP. It should be stressed that this decision is not necessarily based on school-age ESY practices or formulas which may be inappropriate for younger children”.
300.342 - When IEPs Must Be In Effect. DEC supports current regulatory language in this area at 300.343(a) and recommends that the language in c.2 related to the use of IFSPs for preschoolers and the reference to it in Note 3 be deleted. Existing regulatory language is adequate. Further, the language in Note 3 is very misleading as it states that if a child has an IFSP after age three, he/she is not receiving FAPE. This is not consistent with current OSEP letters or with the statute.
300.344 - IEP Team. DEC supports the inclusion of a Q and A in Appendix C (question 3) related to the regular education teacher for a preschooler’s IEP team. Guidance is needed in this area. DEC supports the response given for the regular education teacher in the case of both children in kindergarten and children with disabilities receiving FAPE in public preschool programs. However, DEC recommends a change in the language for the final situation referenced (the case of public agencies who do not provide regular preschool services). The language proposed may be too restrictive and it is not clear what the phrase “is qualified to serve nondisabled children” means. What does “serve” refer to? Does it refer to the provision of child care, education, preschool, special education…? Instead DEC suggests that the response include a requirement that states develop a policy in this area and determine who, given the state’s service delivery system for preschool special education, is the appropriate person to serve in this capacity.
300.347 - Content of IEP. DEC recommends that a “new” note be added to the body of the regulations to clarify the term “appropriate activities for preschoolers”. DEC recommends the language of the note clarifies the term “appropriate activities” as it relates to preschoolers. Instead of the language in Question 1 in Appendix C of the NPRM, DEC suggests the following language- “appropriate activities refers to activities, materials and environments, that are chronologically age relevant, and developmentally and individually appropriate”.
300.520-529 Discipline. DEC recommends that a “new” note be added which describes these provisions as they relate to young children (aged 3-9 years). The language should read:
“Disciplinary practices for young children should not necessarily be based upon practices appropriate for older children (grades 4 and above). Many young children engage in challenging behavior in the course of early development. Typically, this behavior is short-term and decreases with age or minimum intervention. The majority of these children respond to developmentally appropriate management techniques.
Every parent, including parents of young children with disabilities, wants his or her child to attend schools, child-care centers or community-based programs that are nurturing and safe. Many types of services are available to address challenging behaviors. Given the developmental nature of most challenging behaviors, there is a vast area of supplemental services that can be added to the home and education environment to decrease the likelihood of challenging behavior. These include but are not limited to: designing environments and activities to prevent challenging behavior and to help all children develop appropriate behavior; utilizing effective behavioral interventions that are positive and address both form and function of a young child’s challenging behavior; adopting curricular modifications and accommodation strategies designed to help young children control challenging behavior; and providing external consultation and technical assistance or additional staffing.
Families play a critical role in designing and carrying out effective interventions for challenging behavior. Coordination of efforts between family members and professionals is needed to ensure that interventions are effective and efficient and address both child and family needs and strengths.”
DEC will submit to OSEP a copy of the DEC position related to this topic.
300.550-554 Placement and LRE. The Note at 300.551 should be clarified to state that the provision of services in the home may be appropriate for young children if the IEP/IFSP team determines the home is the appropriate setting to address a particular child’s needs.
In addition, DEC recommends that the language at 300.552 “Placements” be amended, particularly Note 2 which has caused some confusion implying that the full continuum of education settings may not be necessary for the LEA to meet the LRE requirements for preschool children. Some school districts have inappropriately concluded that selecting one of the options, such as locating classes in regular elementary schools and providing that option for all preschool children with disabilities, meets the Part B requirement. In some instances, a continuum as called for in Part B does not exist, as all preschool children are receiving services in one setting.
This language has caused confusion which has resulted in many young children being placed in segregated placements despite the availability of community- based natural environments such as child care, preschools, etc. This language should be clarified and strengthened that integrated placement options must be available to three through five year old eligible children. Community-based natural environments must be utilized when appropriate to the needs of the child.
Comments on Part 301 - The Preschool Grants Program
DEC believes that the guidance provided in proposed Part 301 is clear and helpful. Nevertheless, the change from a child count based formula to a new, untested formula for distribution of Preschool Grant funds both to state education agencies (SEAs), as well as subgrants to local educational agencies (LEAs) is significant. DEC requests that the Department track implementation of these changes particularly the changes that impact on the level of funding and the proportion distribution of Preschool funds that will be allocated to states and local school districts.
Comments on Part 303 - Infants and Toddlers
DEC has reviewed the draft regulatory language provided in the NPRM under this part. We have three areas of comment to provide. 1. Areas addressed in the NPRM. It is not clear why areas such as parents’ insurance proceeds, the definition of parent, and the complaint system are selected for regulatory comment. There were no statutory changes in these areas and there are numerous other areas that do need regulatory attention that are not addressed including those in the recent reauthorization and areas from past OSEP policy letters.
DEC strongly recommends that final promulgation of regulations for the areas identified in the NPRM for Part C (Part H) be postponed until completion of the entire regulations process for Part C (Part H). This should in no way delay the Part B regulations. DEC requests that additional language related to the use of parents’ insurance proceeds be developed in order to address requirements in those instances when a state has established a system of payments. The concept of “no financial cost” is not consistent when the system provides for parents to pay for services.
Further DEC recommends that language in 303.520(e) and Note 3 be deleted.
2. Areas that OSEP has issued clarification in policy letters. There are numerous policy letters that have been issued in critical areas of Part C (Part H) implementation such as Medicaid, IFSPs, payor of last resort, child find, transition, child care, etc.
DEC requests clarification on the status of interpretations provided in these letters given the language in Section 607 c that “the Secretary may not, through policy letters or other statements, establish a rule that is required for compliance with, and eligibility under, this part…” “This part” is Part A which is the general provisions of the Act which covers Part C (Part H) - Infants and Toddlers with Disabilities Program.
Areas in current Part C (Part H) regulations that need review and public comment include but are not limited to:
a. Referral and Evaluation Of particular importance are the current requirements for timelines (2 days and 45 days), parent role in the process, and the parent override provision for evaluation. DEC feels strongly that children should only be referred with the full knowledge and consent of their parents.
DEC believes there are some regulatory revisions that will not only meet the needs of individual children and families but will ensure IDEA's newly expanded focus on the role of parents in all decisions related to their child. For example, consideration should be given to a requirement that the "45 day timeline" only begins after the parent approves the request for evaluation.
In addition, this change could be accompanied by a requirement that referral sources notify parents in writing shortly (perhaps within 2-5 days) after their determination that a referral is appropriate. The notice would inform families of their right to be referred to Part C (Part H), what the program offers and how they can refer their child. With the parent's consent, the referral source should be required to refer the child within the current "2 day timeline".
In many instances, the current 45 day timeline results in a burden on families instead of a requirement on the system to expedite the process.
b. Due Process The current regulations related to due process for Part C (Part H) have caused considerable confusion and would benefit from additional input and possible revision. Of particular importance, is clarification on the state option currently included at 34 CFR 303.420 that allows states to use either the Part C (Part H) regulations or the Part B regulations for due process.
These procedures are significantly different and it is not clear which apply for use in Part C (Part H). For example, Part B allows an agency to bring an issue about the provision of services to due process to attempt to override a parent's decision. Part C (Part H) only allows parents to bring such issues to due process. Part B provides for continuances and for an appeal. Part C (Part H) doesn't. Further, Part C (Part H) gives only parents rights during the hearing process with no rights afforded to the other party (303.422). This is particularly confusing in States that elect to use the state's Part B hearing officers but use Part C (Part H) requirements.
The Office of Special Education Programs has informed lead agencies for Part C (Part H) that when electing Part B due process, there are a number of Part B provisions that do not apply. However, these exceptions are not addressed in the current federal regulations or in the current federal application checklist for Part C (Part H). Public input to determine necessary revisions in this area is critical.
3. Areas in Part C (Part H) Changed By Reauthorization But Not Addressed In the NPRM
There are a number of areas that have been addressed in reauthorization that require regulatory clarification with public comment. The most significant is the area of Natural Environments. Clarification regarding the implementation of the "new" language related to natural environments is requested. Of particular importance is how parent preference for environment can be accommodated within the definition of "to the maximum extent appropriate" to the needs of the child. In addition, it would be helpful to clarify the phrase "when early intervention cannot be achieved satisfactorily for the infant or toddler in a natural environment".
Further, guidance is needed on the relationship between "natural environments" in a group setting and the delivery of direct one-on-one services.
Other areas needing regulatory guidance include but are not limited to the new CHAMPUS language, changes in personnel standards, and the changes to the at- risk language.
Again, thank you for this opportunity to comment. At your request, DEC is ready to assist with these important activities that the Department is undertaking. For additional information or to request our assistance, please contact us.
Barbara Smith
DEC Executive Director
Mary McLean
DEC President
Mary McEvoy
Chairperson, DEC Governmental Relations Committee
Sharon Walsh
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