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In early December 2004, President Bush signed a piece of landmark legislation reauthorizing the Individuals with Disabilities Education Improvement Act (IDEA), the special education federal law. The bill was long-awaited among educators because it held the promise of resolving major issues arising since the Act was last revised in 1997, including how special education teachers will meet the highly qualified standards under the federal No Child Left Behind (NCLB) Act, and providing more latitude for educators in disciplining special education students. The bill contains many significant changes from former law, including efforts to reduce paperwork and consolidate meetings related to special education. Additionally, the new law allows educators to be excused from some Individual Education Plan (IEP) team meetings and eliminates the requirement to use the IQ discrepancy test for learning disabled students, thus providing more latitude to serve students who might have been barred from eligibility for special education services. The U.S. Department of Education has now issued final regulations implementing the 2004 reauthorized IDEA.

"Highly qualified" special ed teachers

Probably one of the items of greatest immediate interest to educators in the IDEA reauthorization was how or if Congress resolved the issue posed by the federal NCLB, which appears to require veteran special education teachers to demonstrate competency in every subject they teach by the end of the 2005-06 school year, either via a certification exam, a High, Objective, Uniform Standard of Evaluation (HOUSE), or the extra option for secondary teachers of having an academic major or coursework equivalent to the subject taught.

TCTA gave input to Congress that no state, Texas included, certifies its special education teachers in particular subject areas, but rather, issues more global special education certificates to teachers. This is because special education teachers have traditionally taught classes that are not defined by subject area, but are inclusive of all subjects. This generalist role does not lend itself to narrow categories of certification, and requiring special education teachers to become "highly qualified" in every subject they teach would work an incredible hardship on currently certified special education teachers, particularly at a time when special education teachers are in such high demand due to shortages. Unfortunately, Congress failed to heed the warning from TCTA and others. Despite an attempt by Senate conferees to extend the time for special education teachers to become "highly qualified" from the 2005-06 school year to the 2006-07 school year, the House conferees rejected the attempt, and the final bill requires veteran special education teachers to demonstrate competency in every core subject area they teach, just like all other veteran teachers, either through HOUSE, passing the applicable certification exam, or the extra option for secondary teachers of having an academic major or coursework equivalent to the subject taught by the end of the 2005-06 school year. (For more information about meeting "highly qualified" standards under NCLB, visit the Texas Education Agency Web site to view a chart drafted by TEA that reflects changes due to the reauthorization of IDEA.)

The final bill does contain some options for certain circumstances:

  1. New elementary special education teachers of students who exclusively take an alternative assessment (typically the State Developed Alternative Assessment or SDAA) have the option of meeting HOUSE in order to be "highly qualified" (formerly available only to veteran teachers); veteran and new special education teachers teaching these students at the secondary level have the option of demonstrating competency by being determined by the state to have the subject matter knowledge appropriate to the level of instruction needed to effectively teach to those standards (We have yet to see how the state will determine this).
  2. New special education teachers who are not in the situation described immediately above must demonstrate competency in every subject taught when hired, UNLESS teaching two or more core academic subjects, in which case competency must be demonstrated in at least one core subject area when hired, leaving two years from the date of hire to demonstrate competency in the other core subjects taught. Competency can be demonstrated via HOUSE, passing the applicable exam, or the extra option for secondary teachers of having an academic major or coursework equivalent to the subject taught.

Discipline

Another area of great interest to educators is the discipline of special education students. TCTA gave input to Congress in support of measures that loosen the stringent requirements contained in current law about the placement of special education students in matters of discipline. Additionally, TCTA supported measures to require that if a teacher removes a special education student from his/her class and a change of placement is not possible, additional supports, such as instructional aides, must be provided.

Congress responded by making the following changes in the law regarding situations in which special education students can be removed to an interim alternative setting for certain behavior without regard to whether the behavior is a manifestation of the disability:

1. Increased the amount of time a special education student can be removed to an interim alternative setting in these situations (changed from up to 45 days to up to 45 school days).

2. Added another situation in which a special education student can be removed to an interim alternative setting without regard to whether the behavior is a manifestation of the disability--the child has inflicted serious bodily injury upon another person while at school, on school premises or at a school function.

Serious bodily injury is defined in U.S. Code, Title 18, Section 1365(h)(3) as a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary, that involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

The bill also requires a "manifestation determination" so that schools must consider whether a child's behavior was the result of the disability when considering disciplinary action. It clarifies that behavior is a manifestation of a child's disability only when it is caused by or has a direct and substantial relationship to the disability.

Reducing paperwork and meetings

Another chief concern among educators is the large amount of time for those involved in special education that is spent on meetings and paperwork. TCTA gave input to Congress on both of these issues. Congress addressed these concerns in the following ways: First, the bill provides for a pilot program that allows the federal government to give waivers from federal special education laws/rules to 15 states that submit approved proposals to reduce excessive paperwork and noninstructional time burdens that do not assist in improving educational and functional results for children with disabilities. The bill also requires the U. S. Department of Education (USDE) to distribute model forms for IEPs, etc.

Second, the bill allows members of the IEP team/Admission, Review and Dismissal (ARD) committee to be excused from attending meetings if the parent of the student and the school district agree that the attendance of such member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting. If the member's area of the curriculum is being discussed, the member can still be excused by submitting written input on the development of the IEP prior to the meeting.

Other measures designed to reduce the amount of time spent in meetings and on paperwork are to allow the parent and the school district to agree to make changes to an IEP after the annual IEP meeting without convening another meeting, but by merely making the changes in writing; to allow the IEP team to meet via conference call or video, and to require school districts to consolidate IEP team meetings as much as possible.

Finally, the bill allows a 15-state pilot project in which states will experiment with developing IEPs that are valid for up to 3 years.

Assistance for struggling learners/resolving the NCLB 1% rule

TCTA also provided input in support of assistance for struggling students who just miss the mark on qualifying for special education services. The bill may offer some help for such children. It allows schools to use up to 15% of the federal special education funds they receive to develop and implement coordinated, early intervention services for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment. It also changes the measures used to determine a child's eligibility for special education services due to a learning disability by eliminating the requirement to decide whether such 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.

What's next

Now that the final federal regulations have been issued, Texas will begin work on its state rules. TCTA will continue to be involved and be a voice for teachers as the new Act begins to unfold.