NASW Response to the Department of Education on Regulatory Issues under 1997 IDEA Amendments

Thomas Irvin
Office of Special Education and Rehabilitative Services
U.S. Department of Education, Room 4607
Mary E. Switzer Building
330 C Street, S.W.
Washington, D.C. 20202

Dear Mr. Irvin:

On behalf of the National Association of Social Workers (NASW) and our 155,000 members, I want to thank you and the other staff of the Office of Special Education and Rehabilitative Services of the Department of Education for the opportunity to provide recommendations on regulatory issues under the IDEA Amendments of 1997.

There are numerous references to qualified professionals as well as a team of qualified professionals throughout the legislation (e.g., Sec. 612 (a)(14); Sec. 614 (b)(4)(A); Sec. 614 (c)(1), etc.). Therefore, in order to assure quality, cost-effective related services to children with disabilities, NASW believes a definition of Qualified Professionals should be provided in the regulations. Within the broader definition, qualified mental health professionals should be articulated. Suggested language that accommodates this recommendation is as follows:

Qualified providers of mental health services shall include, but not be limited to, state-licensed and/or certified psychologists, school psychologists, social workers, school social workers, psychiatrists, and child and adolescent psychiatrists.

SEC. 602 (22) - - RELATED SERVICES

NASW is most pleased that social work services are identified in the definition of Related Services and references to related services throughout the statute demonstrate the vital role of these services in addressing the barriers to learning confronted by students with disabilities. NASW requests that the language from the Senate Labor and Human Resources Committee Report on the Individuals With Disabilities Education Act Amendments of 1996 that describes social work services be retained:

These [social work] services include the following as they relate to the child’s disability: preparing social or developmental histories on children with disabilities; providing group and individual counseling to children and their families; working with problems in children’s living situations (home,

school, and community) that affect their adjustment in school; and mobilizing school and community resources to optimize the student’s potential to learn in educational programs. As appropriate, school social workers may also design and implement behavior management plans, consult with regular education and special education teachers, and provide case management for students and families requiring multiple services. Report 104-275, page 32

SEC. 611 (d)-(e) - - ALLOCATIONS TO STATES; PERMANENT FORMULAS

While the change in funding formula is intended to address the problem of overidentification of children with disabilities, the new funding formula may deleteriously affect the provision of services for children who would have been deemed eligible under the child count formula but are denied special education and support services under the new funding formula. The interplay between child find activities and the implementation of the new funding formula needs to monitored in order to assure that services are not denied to eligible children once states have depleted their grant monies.

SEC. 612 (a)(12)(A) - - OBLIGATIONS RELATED TO AND METHODS OF ENSURING SERVICES

Because issues regarding payment and provision of services are oftentimes politically laden and can cause protracted delays in addressing the needs of a child with disabilities, regulations should provide guidance regarding a specific hierarchy of payors as they relate to the provision of services. Illustrative guidance in this area can serve as a template for those states that have the inclination and ability to emulate such guidance and, at the same time, clarify the Congressional intent of a shared responsibility in serving children with disabilities.

SEC. 612 (A)(12)(B)(i) - - OBLIGATION OF PUBLIC AGENCY

Regulations should clarify that, where available, school-employed personnel must be the first resource in fulfilling the obligation of related services. The use of contract personnel or other arrangements to satisfy the legislative requirement of ensuring services should not supersede nor supplant the use of school-based personnel. In other words, contractual and/or other arrangements are additive resources to be used to increase the capacity of existing related services personnel to meet the needs of students who require special education services. Only in those instances in which there are no existing support services nor providers based in the school (i.e., school social workers) should contractual or other arrangements be made as a first resource to meet the legislative requirements.

SEC. 612 (a)(15)(iii) - - PERSONNEL STANDARDS; State’s Standards for Paraprofessionals/Assistants

Regulations should acknowledge that the use of paraprofessionals and assistants in many areas of special education service provision, such as mental health services, is inappropriate. Therefore, the regulations should clarify that the use of such personnel is not applicable to the professions of social work, psychology or psychiatry.

SEC. 612 (a)(15)(C) - - POLICY

Unnecessary exceptions to highest qualified personnel standards in IDEA may erode professional services to children in both urban and rural areas having the greatest impact on children in poverty who have disabilities. Thus it is imperative that states be required to demonstrate a shortfall prior to hiring individuals who are making progress toward meeting the state’s standards. The method by which such a shortfall is demonstrated must be reliable and valid. Regulations should articulate what constitutes a "good-faith effort" to assure that compliance is objectively and consistently evaluated, and thus, states’ circumvention of this requirement is precluded.

For those states that do hire individuals who do not meet the state standard, regulations should specify that exceptions are limited to one three-year period per position. In addition, supervision for such individuals should be performed by professionally trained individuals within the discipline for which there is a shortfall. In other words, individuals who do not meet the state’s standards MUST be supervised, at a minimum, by individuals who do meet the standard. Optimally, however, the state standard should by exceeded by supervisors of these personnel.

SEC. 614 (a)(1)(C) - - EVALUATIONS; Parental Consent

Partnerships between parents, educators and other related service providers are central to children’s educational success. Most parent’s know what their children need to become effective learners. Obtaining parental consent for a child’s initial evaluation is the first step in developing a relationship based on mutual trust and respect. Therefore, the regulations should require that local schools or other agencies obtain written informed consent from a parent before his/her child can be evaluated. Informed consent requires the provision of understandable information concerning the parameters of the evaluation including the "tools and strategies" and procedures the agency proposes to use, the purposes of these procedures, and the qualifications of the professionals carrying out the evaluation for eligibility. Otherwise, parents cannot ascertain whether or not they are protected from inappropriate assessments, unqualified utilization of assessment techniques or other safeguards prescribed under (b) and (c) of this section and (c) of Section 615.

In addition, regulations should specify a time limit on completing the evaluation of a child. Without timelines, school systems can delay completion of a child’s evaluation for months, those depriving the child of his/her need for special education and support services.

SEC. 614 (c)(4) - - REQUIREMENTS IF ADDITIONAL DATA ARE NOT NEEDED

Regulations should specify that parents have the right to request additional evaluations to answer questions regarding any IEP issues, including the disability category. Schools should be responsible to make this parental right clear both verbally and in writing as a component of consent and notice in (b) (1).

SEC. 614 (d)(1)(A) - - INDIVIDUALIZED EDUCATION PROGRAMS

Section 300.350 of the current regulations should be retained. This regulation provides that each public agency must provide special education and related services in accordance with the IEP. New regulations should consider that particular service needs are frequently omitted from the IEP when such services are not available within that school system. Such omissions prevent school districts from acknowledging and responding to the educational system’s service deficits and perform a grave injustice to the child.

SEC. 614 (d)(1)(A)(ii) - - STATEMENT OF MEASURABLE ANNUAL GOALS

Regulations should require that "benchmarks" must be objective and measurable. If benchmarks are to be used to amend the IEP during the school year, they can be no less rigorous than short-term objectives.

SEC. 614 (d)(1)(B)(vi) - - INDIVIDUALIZED EDUCATION PROGRAM TEAM; Related Services Personnel

Regulations should require that if a related service is to be provided to a child with a disability, a qualified professional (see recommended definition above) in the area of the specific related service must be at the IEP meeting. Regulations should further urge that related service providers who participate in the provision of related services that are reflected in the IEP goals should attend review meetings to ensure the integration of services and accurate presentation of results for those goals. Parents should not be required to make such a determination as this course of action is in the best interests of all children with disabilities. The intent of having an IEP team include the regular and special education teacher is germane to others who need to present information to the parent about the child’s progress related to IEP goals, objectives and benchmarks. The parent should not be expected to anticipate the importance of such service providers and the information they need to convey.

SEC. 614 (d)(3)(B) - - DEVELOPMENT OF THE IEP; Consideration of Special Factors

Regulations should provide clear instruction that considerations are noted to assist the team in developing meaningful IEP goals and objectives when these considerations impede learning. When appropriate, they must be reflected in IEP goals, services and provider responsibilities. Such regulations should provide guidance regarding these IEP components and ensure that considerations are based upon valid evaluation data and the observed needs of the child eligible for services. Regulations should ensure that, for example, "positive behavioral interventions, strategies and supports" are exemplified and integrated into the IEP and that a separate document addressing "considerations" is not generated.

SEC. 614 (d)(3)(B)(i) - - POSITIVE BEHAVIORAL INTERVENTIONS

Regulations should provide definitions and clarification between and among a number of terms cited in the legislation. They include "positive behavioral interventions, strategies, and supports", "functional behavioral assessment" and "behavioral intervention plan". Guidance should also be provided as to who is qualified to provide such services.

SEC. 614 (f) -- EDUCATIONAL PLACEMENT

LEAs must be accountable to parents and provide a justification of non-inclusive placements. They need to inform parents about the full range of placement options available. Placement options that were considered should be documented as well as the reasons for the selected and rejected options. Often parents are not told about the full range of placement options. Therefore, parents are not able to effectively participate in placement decisions as choices have not been fully disclosed. Likewise, one placement option is presented as most favorable without consideration of the appropriateness of other alternatives. Regulations should attempt to remedy this situation.

SEC. 615 (k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING

The regulations should be responsive to a comprehensive, integrated approach to serving all students with disabilities, including those with behavioral and emotional disorders. This requires linkages and consistencies in legislative and regulatory terminology as well as service delivery expectations. The interrelationship between and among the initial evaluation, the development and implementation of the IEP, the behavioral intervention plan, positive behavioral interventions, strategies, and support, reevaluation, and the discipline provisions needs to be explicated. This means clarifying the relationship between the assessment, the IEP and the behavior plan, and mandating coordinated procedures in the assessment process rather than separately defined and fragmented methods. This also means mandating that every school team includes a professional who has expertise in linking mental health, behavioral, and instructional needs of the student as well as making the necessary connections between the child’s home, school and community environment from the point of initial evaluation through IEP development and implementation and evaluation of the intervention’s effectiveness and the child’s progress in reaching his/her IEP goals. Social workers are the mental health professionals who possess this expertise.

Sec. 615 (k)(8)(B)(iv) - - BASIS OF KNOWLEDGE

Legislative language in this section seems to suggest that if a teacher or other LEA personnel express concern about a child’s behavior or performance than this child is deemed "a child with a disability". Surely this cannot be the intent of the language and the regulations need to provide guidance on this issue.

Sec. 615 (k)(10)

Definitions of ‘controlled substance’, ‘illegal drug’, and ‘weapon’ must allow for objective determinations of the need for and the appropriateness of disciplinary action. All individuals who are involved in the implementation of the discipline provisions will benefit from guidance that illustrates how potential disciplinary situations can be assessed when objects such as pencils, letter openers, rulers, etc. are inappropriately used or prescription drugs are involved.

Thank you for your consideration.

Sincerely,

Josephine Nieves, MSW, PhD
Executive Director

For further information, contact Caren Kaplan at ckaplan@naswdc.org