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Action Alert!
Proposed Federal Regulations Endanger Students with Disabilities
Comments on Draft IDEA Rules Needed by September 6
August 30, 2005 – The Department of Education invites public comment
on draft regulations for implementing the Individuals with Disabilities Education
Improvement Act, signed into law by the President at the end of last year.
The Act (P.L. 108-446) reauthorized the federal special education law (IDEA)
that gives children with disabilities the right to a free and appropriate
public education. Comments on the regulations must be submitted by 5 pm on
September 6.
Prime objectives of the IDEA are to improve identification of children with
mental disabilities who are in need of special education services and to
ensure that they receive appropriate services and supports in a timely
and consistent
manner. Suspension and expulsion should not be the first response to behavior
problems among children with disabilities.
The proposed rules would, among
other things, ease the way for schools to suspend or expel students for
problem behavior even when it’s based on their disabilities, discourage the use
of tools that address behavior problems constructively and exclude many children
with mental or emotional disorders from eligibility for special education.
Your comments are important.
Comments on proposed rules clarify the law’s provisions and help ensure
that the final regulations are consistent with the goals of the law. Because
the new statute has weakened the IDEA in some core areas and includes changes
that could have a devastating effect on the way it is interpreted, comments
are especially critical now. It is imperative that the final rules not further
weaken IDEA or jeopardize the educational rights of children with disabilities.
The Department of Education takes into consideration the number of
comments on a particular provision. Please review the regulations
through
and send in your
comments before the September 6 deadline. You’ll find some of the main recommendations
in the comments being developed by the Bazelon Center at
While comments can be mailed to the address shown below, they will
be more reliably delivered on time through the internet, to
http://www.regulations.gov or by email to IDEAComments@ed.gov. When sending
comments by
email make
sure to include the term “IDEA-Part B” in the subject line of your message.
Far too many schools are using zero-tolerance and other disciplinary policies
that make it easier to remove students who exhibit problem behaviors
from school, ignoring the ideals codified in IDEA when it was reauthorized
in
1997. The draft regulations would further these problems by muddling
the definition of a “change in placement” for a child who is suspended
from school because of disciplinary problems and the process of determining
whether the incident was a manifestation of the child’s disability.
The proposed changes are unsupported by statutory authority. If retained
in final rules, they would greatly reduce many children’s ability to
continue receiving educational services.
The regulations must specifically include both the definition of a “change
in placement” and a “manifestation determination,” and
schools should move to implement them consistently.
Furthermore, the prior law specifically mentioned two important tools for
addressing problematic behaviors that occur at school: Functional Behavioral
Assessments (FBA) and Positive Behavioral Interventions and Supports (PBIS).
Research has demonstrated that FBAs and PBIS, used correctly, reduce the
need for traditional school discipline such as suspension and expulsion—procedures
unsupported by research. When challenging or problematic behaviors arise,
it is crucial that the team reviewing the individualized education program
(IEP)—the cornerstone of the IDEA— use these tools to address
the behavior.
The reference to “socially maladjusted” should be eliminated.
A further problem is the federal definition of emotional disturbance,
which currently imposes barriers to the identification of many children
with mental disabilities by excluding them as “socially maladjusted.” These
children need special education and related services under
the IDEA, but are left without access because of inaccurate identification.
This is disturbing,
given that students with mental and emotional disorders have
been cited as among the most under-identified and under-served
of
all students
with disabilities.
Studies document the harm of bad policies.
These problems are particularly alarming in light of a study finding that
73 percent of youth identified with serious emotional disorders who have
dropped out of school are arrested within five years. Additional studies
have suggested a strong relationship between school dropout and subsequent
involvement with the juvenile justice system, homelessness and other
adverse outcomes for youth. When children do not receive the educational
and supportive
services they need and school policies are not in their best interest,
these problems will continue.
For these and many other reasons it is important for consumers, families,
advocates, providers and others who are concerned about the educational
success of students with mental disabilities take a moment to forward
your concerns
with or support for particular provisions in the draft regulations implementing
the new IDEA.
Send comments to:
Troy R. Justensen
U.S. Department of Education
400 Maryland Avenue, SW
Potomac Center Plaza, room 5126
Washington, DC 20202-2641
IDEAComments@ed.gov
http://www.regulations.gov
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the Bazelon Center with a link to our website: http://www.bazelon.org
Fair Use Policy
Please feel free to forward our alerts as long as you credit the Bazelon Center with a link to our website: http://www.bazelon.org
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite
1212
Washington, DC 20005
