NASW Comments on Department of Education Proposed Regulations on IDEA

Mr. Thomas Irvin
Office of Special Education and Rehabilitation Services
U.S. Department of Education
Mary E. Switzer Building, Room 3090
330 C Street, SW
Washington, DC 20202

Dear Mr. Irvin:

On behalf of the National Association of Social Workers (NASW) and our 156,000 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 comments on the proposed regulations under the Individuals with Disabilities Education Act Amendments of 1997.

NASW is a membership organization that promotes, develops and protects the practice of social work and social workers. The Association seeks to enhance the effective functioning and well being of individuals, families and communities through its work and through its advocacy.

Social workers practice in a variety of settings including schools and are the nation’s largest group of mental health services providers. School social workers are the mental health providers that link the home, school and community in providing direct as well as indirect services to students, families, and school personnel to promote and support students’ academic, social, and emotional success.

NASW commends the Department of Education for its extensive investment in the development of the proposed regulations and is most appreciative of the continual opportunity to provide comment.

First and foremost, I would like to thank the Department for acknowledging the competencies of social workers by expanding the definition of social work services in schools. We urge the Department to retain this new language - - (b)(13)(v) assisting in developing positive behavioral strategies - - in SEC. 300.22 RELATED SERVICES of the final regulations.

SEC. 300.22 RELATED SERVICES. NASW also recommends the following addition to (b)(13)(ii):

Group and individual counseling with the child and family and other mental health services. This addition more accurately reflects the comprehensive array of mental health services that are provided by social workers in schools.

SEC. 300.22 NOTE 3 The use of paraprofessionals for related services. NASW supports this note with the addition of the following text:

Trained and supervised paraprofessionals can be effective assistants for implementing selected aspects of related services using the guidelines of Section 300.136(f)(4).

SEC. 300.7 CHILD WITH A DISABILITY.

300.7(a)(2) NASW supports the inclusion of developmental delay for ages 3 through 9.

SEC. 300.7(a)(2)(i) Recommended rewrite.

Who is experiencing developmental delays in one or more of the following functions: physical, cognitive, communication, social or emotional, or adaptive development as measured by diagnostic instruments and procedures;

Add: (iv) The State definition of the term developmental delay for this age range shall, to the maximum extent possible, be consistent with the State definition of that term under Part C of this law.

NASW strongly supports the expansion of the use of the term developmental delay to children ages 3 through 9 as appropriate to address the significant developmental variance among this age group and the lack of validity in using categorical diagnoses. It is presumed that identified sensory disabilities such as hearing impairment, deafness, visual impairment including blindness, deaf-blindness, among others, would not receive the diagnosis of developmentally delay regardless of age.

SEC. 300.7(a)(4) New definition of emotional disturbance

Emotional disturbance is defined as follows:

(i) This term means a condition in which behavioral or emotional responses of an individual in school are so different from his/her generally accepted, age-appropriate, ethnic or cultural norms that they adversely affect educational performance in such areas as self-care, social relationships, personal adjustment, academic progress, classroom behavior, or work adjustment.

(A) Emotional disturbance is more than a transient, expected response to stressors in the child's or youth's environment, and would persist even with individualized interventions, such as feedback to the individual, consultation with parents or families, and/or modification of the educational environment.

(B) The eligibility decision must be based on multiple sources of data concerning the individual's behavioral or emotional functioning. Emotional disturbance must be exhibited in at least two different settings, at least one of which is school-related.  (C) Emotional disturbance can co-exist with other handicapping conditions, as defined elsewhere in this law.

(ii) This category may include children or youth with schizophrenia, affective disorders, anxiety disorders, or with other sustained disturbances of conduct, attention, or adjustment.

This definition reduces the stigma associated with the original language. NASW urges the Secretary to change the definition in the regulations and replace it with this more research-based definition for this disability. The definition as written has minimal validity. The more valid, functional and purposeful definition supported by the community, found in the Head Start Regulations and used by other agencies serving this population is recommended to replace the one in the proposed regulations.

Action Requested: Change the definition of "qualified" in the regulations to read:

As used in this part, the term "qualified" means that a person has met the SEA standards that are consistent with any State approved or recognized certification, licensing, registration, or other comparable requirements based on the highest requirements in the State applicable to the profession or discipline in which a person is providing special education or related services.

Rationale: Addition of the phrase "the highest requirements in the State applicable to the profession or discipline in which a person is providing special education and related services..." makes the definition of qualified in this section identical to the language in the Act at Section 612(15)(A) and (B). The new phrase also reflects the regulatory language contained in the proposed regulations in Section 136(a). As currently written, the definition of "qualified" in the regulations is not adequate and could be construed as inconsistent with Section 300.136 Personnel Standards, which repeatedly refers to the highest requirements in the state. The interrelationship between qualified providers and personnel standards, particularly as applicable to professional disciplines, should be highlighted.

Having a more detailed definition of qualified in Section 300.21 is important as the term "qualified" becomes an important component in Section 300.232 Exception to Maintenance of Effort, in which it indicates that an LEA may reduce its maintenance of effort expenditures, if upon the departure of higher-salaried personnel, they are "replaced by qualified lower-salaried staff." Adding the recommended phrase to Section 300.21 clarifies that qualified refers to individuals who have met the highest requirements in the State, as indicated in Section 300.136.

The definition proposed above is consistent with and encompasses the definition of qualified providers of mental health services recommended to the Department by NASW on 7/25/97:

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. 300.24 DEFINITION OF SPECIAL EDUCATION.

NASW supports the note following definition that describes the integral role of related services in providing special education instruction.

NASW supports the Department’s recognition of the importance of related services in the provision of transition services. The inclusion of related services as a component of transition services should be maintained in the final regulations.

SEC. 300.121 FREE APPROPRIATE PUBLIC EDUCATION.

NASW supports (c)(2) and (c)(3) that provide for the addition of a free appropriate public education (FAPE) for children suspended or expelled.

SEC. 300.125 CHILD FIND and Impact of changes in 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. 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. It is critical that child find be carefully monitored to ensure that all children with disabilities are identified and appropriately served prior to any waiver from the State maintenance of effort requirement.

NASW supports the numerous references to "highest requirements in the state" that recognizes the highest entry level academic degree in addition to any State approved or recognized certification, licensure, registration or other comparable requirements that apply to that profession or degree.

Action Requested: In Section 300.136(f), change the following as indicated:

Recommendation: Change existing (f) to read as follows and renumber (f)(1)

Add the following new sections under 300.136 (f) and number as (f)(2), (f)(3), (f)(4), and (f)(5):

(f)(2):An appropriately trained and supervised paraprofessional is an individual who:

(i) performs specific routine tasks to assist qualified personnel who provide special education and related services to children with disabilities;

(ii) has training as necessary to perform such tasks; and

(iii) performs specific routine tasks delegated by and under the supervision of a qualified provider of special education or related services, who meets the highest requirements in the State for the profession or discipline in which services are being provided, consistent with paragraphs a-e of this section.

(f)(3):An appropriately trained and supervised assistant is an individual who:

(i) performs specific activities that assist qualified personnel in the provision of special education and related services to children with disabilities;

(ii) obtains formal, post-secondary training in the area in which they will be providing special education and related services at a degree granting institution accredited by an agency recognized by the U.S. Department of Education;

(iii) is appropriately qualified under the definition at Section 300.21; and

(iv) performs specific tasks while working under the direction and supervision of a qualified provider of special education or related services, who meets the highest requirements in the State for the profession or discipline in which services are being provided, consistent with paragraphs a-e of this section.

(f)(4): The State must have information on file with the Secretary that demonstrates that the State has laws, regulations, or written policies related to the training, use, and supervision of paraprofessionals and assistants. State laws, regulations, or written policies related to the training, use, and supervision of paraprofessionals and assistants must include:

(i) a scope of responsibilities for paraprofessionals and a scope of responsibilities for assistants, including tasks or activities both permitted and prohibited;

(ii) recommended ratios of the number of paraprofessionals and the number of assistants who may be supervised per qualified professional;

(iii) the amount of direct, onsite supervision that must be provided to paraprofessionals and to assistants;                         

(iv) selected use of paraprofessionals and assistants that precludes any independent, professional-level decisions (e.g., conducting evaluations, providing counseling, making IEP recommendations),or other activities that require the expertise of qualified personnel;

(v) provisions indicating that qualified personnel who supervise paraprofessionals and assistants have responsibility for actions taken and tasks or activities performed by these personnel; and

(vi) provisions indicating that parents of children with disabilities be notified when services are provided by a paraprofessional or assistant, and be notified that qualified personnel supervising paraprofessionals or assistants are responsible for those tasks or activities carried out by such paraprofessionals or assistants.

(f)(5): The use of paraprofessionals and assistants in many areas of special education service provision, such as mental health services, is inappropriate. Thus, the use of such personnel is not applicable to the professions of social work, psychology or psychiatry.

Rationale: Regulatory guidance to states and LEAs on the appropriate scope of responsibilities, range of activities, and the training and supervision needs of paraprofessionals and assistants would enhance services provided by these personnel, minimize the risk of harm to children, limit ineffective uses of funds, minimize costs of administrative challenges, and decrease the school’s potential of legal liability.

SECTION 300.136(g) PERSONNEL STANDARDS.

Action Requested: Include specific regulations to define terms used in (g) and requirements for implementing (g).

Rationale: The underlying statutory language for this section is new, lacks clarity, and could be subject to varying interpretations across and within States. Greater explanation in the regulations could help to prevent the provision of substandard services to children with disabilities and their families or the continual provision of services by persons who do not meet the requirements at Section 300.136(a) and (b); and to avert the establishment of differently designed, permanent systems of unqualified personnel.

Recommendation: Change paragraph (g) to (g)(1) and add the following as (g)(2) and (g)(3):

(g)(2) If a State chooses to adopt a policy for waiving the requirements for employment of personnel who meet the highest requirements in the State for a profession or discipline, this policy must be on file with the Secretary, and ensure that:

(i) A "geographic area of the State" is defined as a local education agency.

(ii) As a "good faith effort," the LEA has established, implemented, and maintained outreach and recruitment measures to broaden candidate pools from which hiring decisions are made to include fully qualified personnel who meet the personnel standards at 34 CFR 300.136, and has documented the recruitment methods used;

(iii) For an LEA to be eligible as a "geographic area where there is a shortage", the LEA must be able to document the existence of vacant, funded positions in a specific profession or discipline, despite engaging in good faith efforts to recruit, hire, or contract with qualified personnel, as indicated in (ii) above. Eligibility as a "geographic area where there is a shortage" must be made on a position-by-position basis, renewed annually, and reported to the Secretary on an annual basis.

(iv) A State and an LEA petitioning under this part take into consideration the cumulative effects of such action on children with disabilities and their families to assure that, on the whole, children with disabilities are served by qualified personnel, as defined in Section 300.21.

(v) For persons to be considered the "most qualified individuals available," they must, at a minimum, hold an academic degree from a post-secondary degree- granting institution, be enrolled in an academic program leading to an entry-level degree in the profession or discipline in which they are providing services, and be making satisfactory progress toward completing applicable course work necessary to meet the standards described in paragraph (b)(1)

(vi) Use of the "most qualified individuals available" is consistent with State law governing the specific profession or discipline;

(vii) Such individuals described in (v) above are eligible for employment under this part for one three-year time frame. The three-year limit cannot be exceeded through renewal, extension, or reapplication.

(viii) Such individuals described in (v) above are supervised by personnel who meet appropriate professional requirements in the State as defined in Section 300.136(a)

(g)(3) Parents of children with disabilities have the right to know and be notified when services are provided to their children by personnel who do not meet the highest requirements in the State. Parents have the right to question such service provision practices as part of the IEP.

SEC. 300.136 PERSONNEL STANDARDS. Delete Note 2.

By explicitly providing states with the option to engage in multiple three-year cycles of good faith efforts to recruit and hire appropriately and adequately trained personnel, Note 2 inadvertently encourages protracted delays in attaining the highest requirement in the state applicable to specific professions or disciplines. This proposed regulatory language undermines the importance of staff training in competently addressing the educational, behavioral and developmental needs of children. Rather than an aberration to the legislative expectation, written acknowledgment of multiple cycles of "good faith efforts" legitimates and enhances the viability of this course of action. Requests for more than one three-year period of sub-optimal personnel standards should be requested, evaluated, and granted on a case by case basis without the formal sanction of this option in the regulations.

SEC. 300.136 PERSONNEL STANDARDS. Delete Note 3.

This note allow States to modify their personnel standards in order to ensure provision of a free appropriate public education to children with disabilities. Thus, it nullifies the requirements explicated in Section 300.136 Personnel Standards. Like Note 2, it undermines the importance of qualified personnel in competently addressing the educational, behavioral and developmental needs of children. The note permits states to deviate from the "highest requirement" expectation and appears to violate the intent of the law.

SEC. 300.142 METHODS OF ENSURING SERVICES. All services under this act must be "free" from direct or indirect cost to parents.

Medicaid has been an effective funding source for some children's IEP services that have been provided by school-employed related service providers. Some children with disabilities whose needs require multiple agency services should have access to those services needed to ensure educational progress and the Act addresses this issue. Coordination of services and its regulation is a highly complex process. It is critical that IEP services not be delayed or rationed based on the rules or standards of other agencies or contractors. Services must be educationally meaningful and integrated. Parents must not have any financial responsibility for such services (through direct or indirect costs).

The Secretary believes that the basic principle, that services be available at no cost to parents, would be equally applicable to parents whose children are eligible for public insurance as those who are privately insured, but that there is no current need to regulate on the public insurance issue because there is no risk of financial loss to parents under current public insurance programs such as Medicaid.

There is a need to monitor this situation on a regular basis to insure the integrity of this regulatory provision. Indirect costs associated with increased service utilization and prospective changes in the Medicaid program, such as block grants and managed care arrangements, are likely to impact the ability to provide services at no cost to a child's parent(s).

SEC. 300.142 METHODS OF ENSURING SERVICES

(a)(4) Coordination of Services Procedures.

Add the following new language at the end of this section.

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 school-based support services nor providers that meet the child’s individual needs (i.e, rural areas) should contractual or other arrangements be made as a first resource to meet the legislative requirements. Coordinated services should supplement rather than supplant services provided by the LEA.

SEC. 300.232 EXCEPTION TO MAINTENANCE OF EFFORT. Add (a)(i) to regulations:

Persons replacing higher-salaried staff departing must be qualified to the highest standard as defined in Section 300.136 to carry out those responsibilities as prescribed by that standard. Staff replacing the departing higher-salaried staff must be at least entry-level qualified to replace that category of professional.

The present regulation is ambiguous and implies that any category of staff could replace a different higher qualified staff.

SEC. 300.311 FAPE IN PRISONS.

A higher proportion of children with disabilities are arrested and imprisoned from special education than from the general education population. It is imperative that these offenders with disabilities be educated and receive FAPE to reduce the reoccurrence of crime.

SEC. 300.343 IEP MEETING.

NASW supports the 30 day maximum time-line for developing an IEP following determination of eligibility.

Sec 300.344 IEP TEAM - Inclusion of related service personnel

Regulations should require that if a related service is to be provided to a child with a disability, a qualified professional 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 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. Persons providing related or other services associated with IEP goals must have the opportunity to participate in IEP meetings to report on those IEP goals when appropriate.

SEC. 300.502 INDEPENDENT EVALUATION Add Note: Such an evaluation must conform to the requirements of the full and individual evaluation required under Sections 300.530-36 as long as it does not violate the parent's rights.

SEC. 300.505 PARENTAL CONSENT.

DELETE/REPLACE (iii) requiring parental consent for "any new test" and replace with: (iii). Except as provided in paragraph (c) of this section, conducting any reevaluation of an eligible child under Part B of the Act.

The public agency must retain responsibility for securing informed parental consent for reevaluations which do not require additional new testing. Lack of such responsibility could become a significant area of abuse, cause adverse problems regarding the protections of reevaluations and reduce parental participation in such decisions. There is no Congressional justification to remove this parental protection. This protection should include information regarding the parental right to request that specific evaluation questions be addressed to answer their concerns.

The reevaluation process should not be implemented when the parent refuses verbally or in writing to allow a reevaluation.

SEC. 300.520 AUTHORITY OF SCHOOL PERSONNEL

The authority of school personnel to remove a child and place him/her in a 45 day alternative setting is not a mandate, but rather an option to exercise such authority. Thus the regulations should portray it as such. All interventions should be evaluated for their efficacy. With some children, this course of action will increase and escalate negative behaviors. Alternative remedies should be considered before exercising such authority. The optional nature of this authority needs to be made explicit.

SEC. 300.520 (b)(2) and ADD (b)(3)

(b)(2) If the child already has a behavioral intervention plan, the IEP team and other qualified personnel shall review the plan and modify it, as necessary, to address the behavior.

(b)(3) Qualified personnel knowledgeable about functional behavioral assessments and behavioral intervention plans are to be involved in implementing this section (i.e., discipline provisions).

SEC. 300.520 AUTHORITY OF SCHOOL PERSONNEL. Note 2. For suspension of not more than 10 school days.

Add to Note 2. The IEP team should seek behavioral consultation for any pattern of short suspensions or for any suspension that, in the judgment of the parent or other IEP team member, requires the development of or reconsideration of behavioral strategies, interventions or other IEP revisions which are believed to address the suspendable behavior.

Add Note 3. The child's "behavioral intervention plan" should be a component of the child's IEP designed to address the behavior, including measurable goals and benchmarks.

Positive behavioral interventions should include IEP strategies and services designed to assist the child in reaching measurable behavioral goals which will enhance that child's learning and, as appropriate, the learning of others. The interrelationship and integration between and among initial evaluation, development and implementation of IEP, behavioral intervention plan, positive behavioral interventions, strategies and supports, reevaluation, and discipline provisions needs to be explicated. The regulations should further clarify that the child should have one record and a separate document is not generated in the development of a behavioral intervention plan.

SEC. 300.523 MANIFESTATION DETERMINATION

(c) Individuals to Carry Out Review. Language should be added that is comparable to existing language in the note following Section 300.44 IEP Team that states in the case of a child whose behavior impedes the learning of the child and/or others, the LEA is advised to have a person knowledgeable about positive behavioral strategies and supports at the manifestation determination reviews.

Subsection (d) should state that: "...the IEP team and other qualified personnel..." Similar corrections are needed for other sections including (e) and (f). Both must also be so amended to include other qualified personnel.

It would be appropriate for a note to connect the manifestation determination with qualified professional personnel identified in the related services section to guide LEAs in having the appropriate professionals address the behavioral issues.

Congress determined, in such cases, that the IEP team is a team that must include qualified professionals (qualified to observe behavior of the child in a variety of settings, and independently review the IEP, including the educational/behavioral strategies, services and placement). Such qualified personnel will also be needed to evaluate the effectiveness and integrity of behavioral interventions tried and to design the remedies necessary when the behavior is a manifestation of the disability as determined in (d)(2)(ii)(iii) or, as noted in (e), if the service standards in (d)(2) were not met.

Note 2. Support.

NASW supports the Department in directing the LEA to expedite a return to the current placement when a child has been removed and placed in a 45-day alternative setting. The modifications in the IEP to ensure appropriate education must be addressed as a critical component of the return.

SEC. 300.529 REFERRAL TO AND ACTION BY LAW ENFORCEMENT AND JUDICIAL AUTHORITIES. This section requires a note to reference the Family Educational Rights and Privacy Act (FERPA) and to ensure confidentiality of records (see 300.571). Parents should be informed that the records are being transmitted. The authority who receives the records should also ensure confidentiality of these records as an authority of the court to prevent such records from public disclosure.

SEC. 300.531 INITIAL EVALUATION. The Act made it clear that the initial evaluation for eligibility must be comprehensive (Senate report) and requires a complete full and individual evaluation in all areas of suspected disability. The regulations should clarify that the initial evaluation is distinct from the reevaluation.

SEC. 300.532 EVALUATION PROCEDURES

Note 1 of this section addresses one of the two determinant factors identified in 300.534(b) - Limited English Proficiency - for which a child may not be determined to be a child with a disability. Regulations need to clarify that evaluation procedures, assessment tools, and strategies need to address both determinant factors in 300.534(b) - limited English proficiency and lack of instruction in reading and math.

SEC. 300.532 EVALUATION PROCEDURES - Delete Note 3

Note 3 addresses assessments not conducted under standard conditions. This is inappropriate and should be removed from this section. Such a note implies the permissibility of suboptimal conditions and has the potential to adversely affect children.

SEC. 300.541 CRITERIA FOR DETERMINING EXISTENCE OF A SPECIFIC LEARNING DISABILITY (b)(4) Delete term "cultural" from "disadvantages"

NASW recommends that the term "cultural" be removed from the section listing "disadvantages" as it suggests a negative connotation to cultural differences that is unfounded in research and may result in ethnic or cultural biases.

SEC. 300.543 WRITTEN REPORT

Add Note following Section 300.543 stating:

Subsection (6) "severe discrepancy" should not be used as the sole criteria for determining disability or its absence. A documented, classroom-observed discrepancy between functioning and ability meets this requirement of 300.543(6).

In closing, I would like to provide the Department with an overall observation regarding the proposed regulations and a final recommendation. In reviewing the Notice of Proposed Rulemaking, it is apparent that there is an abundance of salient information contained in the "notes sections" throughout the text. The essence of the proposed regulations is oftentimes contained in these notes. Therefore, NASW recommends that the Department reexamine the placement of critical content, that is, the regulatory sections per se should provide the most significant information to interested parties. The ability to clearly communicate guidance as to the manner in which the law is to be implemented will be enhanced by such an effort.

Regarding the Association’s final recommendation, NASW supports the importance of evaluating the changes in the Act to determine the impact of these changes on anticipated positive results for children with disabilities. The protections the law ensures are dependent upon the provision of appropriate services and instruction within the least restrictive environment. This necessitates an examination of the results of statutory changes including, but not limited to, ecological reevaluations; utilization of developmental delay for children under age 9; results based IEP goals connected to general curriculum; greater parental participation in evaluation and placement; specification of services and goals to be considered such as positive behavioral interventions; discipline regulations, including the use of the 45-day interim alternative educational placement; school-wide projects; and greater interagency collaboration. The Department, in collaboration with the States, is encouraged to establish mechanisms to monitor and evaluate the impact of these changes. This type of analysis will be critical to assess the relative value of statutory modifications in approximating the goals of reauthorization.

We respectfully submit these recommendations with the intention and hope that the final regulations on the Individuals with Disabilities Education Act Amendments of 1997 will guide school decision-makers towards services and decisions that will best protect, serve and advance the well-being of students with disabilities and their families.

Thank you for your consideration.

Sincerely,

Josephine Nieves, MSW, PhD
Executive Director

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