IDEA – 2004 Signed into Law – Implications for School Psychology
Brent Duncan, Ph.D., NCSP
CASP Training and Accreditation Specialist
NASP GPR Committee Member
On December 3, 2004, President Bush signed the recently reconciled House-Senate bill to reauthorize IDEA. The low-key public ceremony finally ended nearly 3 years of discussion and often partisan debate regarding the future of federal legislation authorizing special education.
During the next 12 months, all of the stakeholders in special education have an opportunity to identify and understand those areas of change most relevant to their roles and responsibilities, and work with state and federal personnel responsible for writing the regulations that will implement the law. CASP will also begin to offer the training and cross-training to hopefully assure that this transition goes as smoothly as possible.
The goal for this brief update is to present a prediction of events that will take place during the next year, and to outline some of the critical changes that will affect the profession of school psychology. For the remainder of this article, unless otherwise referenced, text within quotation marks is taken directly from the IDEA Conference Committee Report, or IDEA-2004 itself (PL 108-446). Both the report and the Act are available as links from the House Committee on Education and the Workforce at: http://edworkforce.house.gov/issues/108th/education/idea/idea.htm
Implementation of IDEA-2004
The law is enacted as of December 3, 2004. With one exception, the law is implemented on July 1, 2005. That exception involves the definition of a Highly Qualified Special Education Teacher, which takes effect immediately. The definition of a highly qualified special education teacher takes up more than three of 94 pages of the House-Senate Conference Report, and was one of two issues that nearly derailed efforts to reconcile the House and Senate Bills. Both federal and state Departments of Education must immediately develop specific regulations to determine how secondary special education teachers will be determined to be highly qualified under the provisions of NCLB. Regulations may be released as early as March, and major organizations representing teachers (CEC, NEA, CARS+) are under an immediate need to inform their members regarding the impact of this part of the law. As of mid-December, CEC is urging members to read the conference report (pages 3 – 5), and is not yet providing an interpretation or commentary regarding language.
An implementation date of July 1, 2005 means that the law takes effect on that date, regardless of whether regulations have been published, or written into State Education Code through state sponsored legislation. IDEA-2004 has a specific clause to urge the federal government to publish the regulations implementing the law within 1 year. This provision requires the Secretary of Education to “provide for the orderly transition from the IDEA, as such Act was in effect on the day preceding the date of enactment of this Act, to the IDEA 2004. Limitation. The Secretary’s authority in paragraph (1) shall terminate 1 year after the date of enactment of this Act.” (PL 108-446).
When IDEA was last reauthorized in 1997, an extended period
of time was allowed for public comment and input regarding proposed
regulations. The Department of Education took almost 3 years to develop
regulatory language implementing the new behavioral and disciplinary sections
of the law. As we have seen in other policy areas, the Bush administration is
not known for spending an inordinate amount of time discussing or seeking input
broadly regarding new policies. The deadline for initial public comment
regarding regulations is February 28. CASP is
preparing to understand and help
Major
Changes to IDEA-2004 that
Early Intervening Services
The new bill authorizes local educational agencies to use up to 15 percent of IDEA funds for supportive services to help students not yet identified with disabilities, but who require additional academic and behavioral supports to succeed in a general education environment. Although regulations will have to be written very carefully to implement this section of the IDEA, it is clear that:
o·
Early intervention may involve screening,
which will not invoke IDEA due process requirements.
o·
Early intervention may involve progress
monitoring.
o·
Early intervention provisions do not
mandate any specific “waiting period” before a referral for special education
is initiated.
o·
IDEA-2004 may be
appropriately interpreted as attempting to create a more seamless system of
supports and services for all children - those with disabilities as well as
those at risk of manifesting a disability.
While significant regulatory language regarding the use of early intervention funds may be anticipated, school psychologists must begin to position themselves to offer early intervention services that may be funded under this provision. Who is more qualified than a well-trained school psychologist to design and implement screening, progress monitoring, and general education interventions for students needing academic and/or behavioral support? Both CASP and NASP have provided state-of-the-art professional training and information for the field regarding implementing and monitoring scientifically supported early intervention efforts for more than 10 years, and will undoubtedly increase these efforts in upcoming conferences and professional publications.
Behavior Impeding Learning and Manifestation Determination
The revisions in the protections afforded to students whose behavior impedes the learning of self or others, and the revised manifestation determination, were among the most heated and partisan issues in the entire reauthorization process. Despite active lobbying of NASP, CASP, CEC, LDA and many other advocacy groups, the conferees rejected the Senate's carefully worded and stronger behavioral language requiring that the IEP Team “shall – (i) in the case of a child whose behavior impedes the child’s learning or that of others, provide for positive behavioral interventions and supports…” (S. 1248). Instead, conferees chose to adopt language consistent with current law that states that the IEP team "in the case of a child whose behavior impedes the child's learning or that of others, shall consider the use of positive behavioral interventions and supports”. IEP teams will not be required by new federal regulations to conduct functional behavioral assessments, and implement positive behavior support plans for students with significant behavior problems.
While we must wait to read the actual federal regulations
school psychologists must continue to advocate for best professional practice,
and regulatory language to include behavioral assessment and intervention for
all children whose behavior interferes with their own learning, or the learning
of others. While it will probably be impossible to develop regulations in
California that exceed the federal mandate, school psychologists must continue,
as active members of SST and IEP teams, to help schools address troubled and
troubling behavior at the earliest opportunity. There are several references to
behavioral support and interventions throughout the new law. Also, remember
that
In terms of the manifestation determination required when student misbehavior results in a school decision to seek a change in placement, the House-Senate conference committee wrote 4 pages of language that restricts and carefully defines the process. The new language states that in order to be considered a manifestation of a disability, the conduct in question “was caused by, or had a direct and substantial relationship to, the child's disability; or if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.” In addition, a school shall not be required to conduct a manifestation determination in cases where a student: “(i) carries or possesses a weapon, (ii) knowingly possesses or uses illegal drugs, or (iii) has inflicted serious bodily injury upon another person.” Finally, language is clarified that states that IDEA behavioral protections for students not already identified as eligible for special education may be invoked only if an LEA has prior knowledge that the child may be a child with a disability. Prior knowledge is defined more simply than in IDEA-1997 as “if, before the behavior occurred; (i) the parent of the child has expressed concern in writing, (ii) the parent of the child has requested an evaluation of the child, or (iii) the teacher of the child, or other personnel of the local educational agency, has expressed specific concerns about a pattern of behavior…” This wording increases the obligation of parents to request assistance or assessment prior to student misbehavior leading to disciplinary action.
Once again, regulations will add even greater specificity to these revisions in the manifestation determination. School psychologists should be encouraged by the detailed language in the conference report that urges IEP teams to conduct such determinations with the utmost care, considering behavior across time and across settings, and considering unique circumstances on a case-by-case basis. Language also states that if the team determines that the conduct was a manifestation of the child’s disability, the IEP Team shall conduct a functional behavioral assessment, and implement a behavioral intervention plan for the child. Finally, it must be asserted that it is the school psychologist, not the school principal or school secretary, who is the best person to evaluate when “the conduct in question was caused by, or has a direct and substantial relationship to, the child's disability, and is not an attenuated association, such as low self-esteem, to the child's disability.” Clearly, the school psychologist will continue to be the critical member of the team when helping schools to make legally and psychologically defensible manifestation determinations, and when appropriate, develop behavioral intervention plans.
Definition of Specific Learning Disability
IDEA-2004 does not change the definition of a specific learning disability. The definition remains one we are all intimately familiar with:
o·
“The term
‘specific learning disability’ means a disorder in 1 or more of the basic
psychological processes involved in understanding or in using language, spoken
or written, which disorder may manifest itself in the imperfect ability to
listen, think, speak, read, write, spell, or do mathematical calculations (PL 108-446).”
As we have known for at least 18 months, the reauthorized IDEA may eliminate the need to calculate a severe discrepancy between ability and achievement in making an SLD eligibility decision:
o·
“When
determining whether a child has a specific learning disability, an LEA shall
not be required to take into consideration whether a child has a severe
discrepancy between achievement and intellectual ability in oral expression,
listening comprehension, written expression, basic reading skill, reading comprehension,
mathematical calculation, or mathematical reasoning (PL 108-446).”
In place of a severe discrepancy, the law inserts the following new language, present in both the House and Senate bills, and not a subject of conference committee debate:
o·
“In determining
whether a child has a specific learning disability, a local educational agency
may use a process that determines if the child responds to scientific,
research-based intervention as a part of the evaluation procedures described in
paragraphs (2) and (3) (PL 108-446).”
Obviously, this is a section of law that will require significant and careful regulatory language at both the federal and state level. House and Senate Committee reports do provide additional commentary regarding SLD determinations (see House Report 108-77 and Senate Report 108-185). While the appropriate use of IQ tests is acknowledged, the misuse of IQ tests is also noted. States are encouraged to develop research-based models for assessment and eligibility determinations, including those based on an RTI approach. The federal Department of Education is urged to provide guidance and technical assistance to states. More will be known within the next 6 months. Despite the current ambiguity, it is widely believed in the profession of school psychology that:
o·
NASP, at the
federal level, and CASP, in
o·
Significant work has already been accomplished
in developing language to interpret this section of the law, and school
psychologists have been actively involved - providing leadership, expertise and
direction. NASP has been a key player in the LD Roundtable and the National
Joint Committee on Learning Disabilities, and has facilitated discussion and
input from our field.
o·
School psychologists
will still be required to assess “a disorder in 1 or more of the basic psychological
processes” required by the definition of SLD. (A revised and more
scientifically defensible list of the psychological processes involved in
learning will be written into regulations.)
o·
Both CASP and NASP
are on record embracing a change in the way learning disabilities are
identified.
o·
The sky is not falling. As noted above,
this change in law is a tremendous opportunity, not only for school psychology
organizations, but also for the profession, and for each of us as
professionals. Each school psychologist must become prepared to be a leader –
whether at a school, district, SELPA, state or national level, to utilize our
knowledge and expertise to identify and intervene with children manifesting
significant learning difficulties and disabilities.
Other Changes to IDEA-2004
Many other significant changes are contained in IDEA-2004. A few examples include:
o·
Two competitive state level pilot
programs will be allowed. The first will pilot a 3-year IEP, designed to
coincide with natural transition points in schooling. The second will pilot
paperwork reduction proposals. (If
o·
IDEA-2004
deletes benchmarks and short-term objectives for children with disabilities, except
for those children who take alternate assessments aligned to alternate
achievement standards.
o·
IDEA-2004
prohibits school personnel from “requiring a child to obtain a prescription for
substances covered by the Controlled Substances Act as a condition of attending
school, receiving an evaluation under section 614 (a) and (c) or receiving
services” (PL 108-446). NASP was able to
include important new language in the conference report to prevent the
possibility that this so-called House “child medication safety provision”
would result in a gag order to prohibit school personnel from even discussing
or consulting with parents or physicians regarding a child’s behavior, or
possible need for medication. This is a very significant accomplishment, which
would not have occurred without the attention and diligence of NASP leadership
and staff.
Next Steps
The California Department of Education will host a 2-day
training as early as March to begin to disseminate a consistent message
regarding changes in law and regulation. Jim Russell, as Chair of CASP’s Legislative Committee and IDEA taskforce, has
already begun communicating with policy makers regarding the assistance. Along
with Executive Director Suzanne Fisher, CASP state and affiliate leaders will
be able to assist state and LEA personnel in understanding and implementing
these and many other changes. During the next year, there will be frequent
opportunities to receive training and information regarding impending changes
in law and regulation. There are at least 20 workshops, invited addresses and
paper presentations at this year’s CASP convention in
NASP’s Convention in
The
author would like to express appreciation to Stephen Brock, Ph.D., CASP
President-Elect and