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by Suzy Rosen, NAD Legal Counsel for Government Affairs
(This article was originally posted by
the National Association of the Deaf at http://www.nad.org)
This month's column shares the specific new changes in the Individuals with Disabilities Education Act (IDEA), Public Law 105-17, that affect deaf and hard of hearing individuals. Because of the magnitude of the law, I have selected a few key provisions to discuss in detail. (My comments are shown normally; the law's language is shown in blue; and the law's new language is indicated in bold.) This article cannot be considered a comprehensive explanation of the changes. As always, we welcome any further questions or comments you may have.
The main intent of IDEA is to encourage full inclusion: children with disabilities have historically been segregated, and inappropriately excluded from the regular education setting. The LRE provision now includes a "placement-neutral funding formula" to try to remove any financial incentives to segregate children with disabilities.
Part B, Section 612(a)(5)
(A) In General -- To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
(B) Additional Requirement --
(ii) In General -- If the State uses a funding mechanism by which the State distributes State funds on the basis of the type of setting in which a child is served, the funding mechanism does not result in placements that violate the requirements of subparagraph (A).
(iii) Assurance -- If the State does not have policies and procedures to ensure compliance with clause (i), the State shall provide the Secretary an assurance that it will revise the funding mechanism as soon as feasible to ensure that such mechanism does not result in such placements.
However, in response to the concerns of the NAD and other advocates about the need to maintain the continuum of alternative educational placements to meet the individual needs of the child, there is clarification about the legislative intent for this provision. Congress stated in its report language that the: "Committee supports the longstanding policy of a continuum of alternative placements designed to meet the unique needs of each child with a disability. Placement options available include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions..." (This is also codified in the regulations under 34 C.F.R. 330.551.)
The new law finally recognizes the widespread failure of educators to consider the unique individual needs of certain groups of children with disabilities, such as the blind, the deaf or hard of hearing, and those requiring assistive technology. The new section is a major achievement, and the section for deaf and hard of hearing children reads:
Part B, Section 614(d)(3)(B)(iv)
The Individualized Education Program (IEP) Team shall --
"consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communication with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode".
Congress further clarified the intent of this provision by its Report language, Report 105-95, p. 104-5:
"The Team also is to consider the communication needs of the child in order to ensure that local educational agencies better understand the unique needs of children who are deaf or hard of hearing; section 614(d)(3)(B)(iv) includes special factors that must be considered in developing IEPs for these children. The policy included in the bill proves that, in the case of the child who is deaf or hard of hearing, the IEP Team must consider the language and communication needs of the child; opportunities for direct communication with peers and professional personnel in the child's language and communication mode; the child's academic level; and the child's full range of needs, including the child's social, emotional, and cultural needs and opportunities for direct instruction in the child's language and communication mode. The Committee also intends that this provision will be implemented in a manner consistent with the policy guidance entitled "Deaf Students Education Services," published in the Federal Register (57 Fed. Reg. 49274, October 30, 1992) by the U.S. Department of Education."
The NAD, CEASD, and CAID have asked that the Department:
* include in the new regulations the above-mentioned 1992 policy guidance in its entirety,
* require that the deaf or hard of hearing child's IEP includes a statement of how such special factors will be addressed, and
* adopt our proposed definitions to clarify the terminology in the Special Factors section.
Despite the widespread support for maintaining federal funding of captioned media, the new law reflects the wrath wrought by some taxpayers who questioned the appropriateness of captioning some televised shows such as Baywatch. The new language reads:
Part D, Subpart 2, Chapter 2, Sec. 687(c)
The Secretary shall support -- . . .
(2) providing video description, open captioning, or closed captioning of television programs, videos, or educational materials through September 30, 2001; and after fiscal year 2001, providing video description, open captioning, or closed captioning of educational, news, and informational television, videos or materials;
(3) distributing captioned and described videos or educational materials through such mechanisms as a loan service;
The new law however does imply that "educational, news, and informational" video programming may be defined in broad terms. The new language reads:
Part D, Subpart 2, Chapter 2, Sec. 681(b)(5)
[T]he general welfare of deaf and hard of hearing individuals is promoted by
(A) bringing to such individuals understanding and appreciation of the films and television programs that play an important part in the general and cultural advancement of hearing individuals;
(B) providing, through those films and television programs, enriched educational and cultural experiences through which deaf and hard of hearing individuals can better understand the realities of their environment; and
(C) providing wholesome and rewarding experiences that deaf and hard of hearing individuals may share.
The NAD has asked the appropriate federal agencies, the Federal Communications Commission and the U.S. Department of Education, to promote regulations which recognize that all video programming should be captioned, pursuant to the Telecommunications Act of 1996 and the IDEA, and that the loan service be retained.
Below are selections of other new and key IDEA provisions.
* Parent Participation. Parents are now required to be a part of any group that makes decisions on the educational placement of their child. (Part B, Sec. 614(f).) The NAD has asked the Department to mandate that parents be informed that the public agency is required to have a full continuum of placement options, as well as about the placement options that were actually considered and the reasons why those options were rejected, and the actions proposed or refused by the agency, and explanations of why the agency proposed or refused to take the actions.
* Providing Accommodations on Premises of Private Schools. The State or local educational agency is no longer legally obligated to provide on-site at private schools any special education and related services, such as sign language interpreters, if the student is offered a free and appropriate public education at a public school before the parents voluntarily transfer the student to a private school. (Part B, Sec. 612(a)(10)(C)(i).) The NAD Government Affairs has asked in its regulatory recommendations that the resulting problems be addressed by the Department, and the NAD Law Center plans to file an amicus brief to support the provision of special education and related services to a deaf student onsite at a private school.
* Regional Postsecondary Centers. Four million dollars is appropriated "to address the postsecondary, vocational, technical, continuing, and adult education needs of individuals with deafness," but nothing mandates the maintenance of the existing four centers. The NAD has asked for specific regulations to maintain these centers, in order to ensure that the funding is not dispersed to such a degree that the impact of such funded activities is minimal.
Each agency or individual is limited to one free copy of the IDEA. You may get your copy by providing your address and request, for H.R. 5 and the accompanying report 105-95, to the U.S. House of Representatives Document Room, 202-226-4362 FAX, 202-225-1904 TTY, or hdocs@hr.house.gov email.
In September, the Department plans to publish in the Federal Register specific proposed regulations that are based on the public input which were submitted by July 28, 1997. The NAD plans to respond accordingly.
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