October 28, 2004
The Honorable John Boehner
Chair, House Education and the Workforce Committee
U.S. House of Representatives
1011 Longworth House Office Building
Washington, D.C. 20515
Dear Chair Boehner:
The Texas Classroom Teachers Association, representing 50,000 classroom teachers and instructional personnel statewide, would like to provide the following input regarding the Individuals with Disabilities Act (IDEA) reauthorization.
Qualifications of special education teachers. Although we appreciate the goal under the No Child Left Behind Act (NCLB) to ensure that teachers assigned to particular classes are competent to teach a particular subject at a particular grade level, we have grave concerns about requiring special education teachers to meet the definition of "highly qualified" under the NCLB. It is our understanding that this particular issue is supposed to be remedied in the reauthorization of IDEA, and so we are taking this opportunity to express our concerns in our input regarding the reauthorization of IDEA. We firmly believe that there are some categories of teachers that don't lend themselves to the "one size fits all" definition of "highly qualified" under the NCLB, special education teachers being one of them. It is our understanding that no state, Texas included, certifies its special education teachers in particular subject areas, but rather, issue more global special education certificates to its teachers. Special education teachers have traditionally taught classes that are not defined by subject area, but are inclusive of all subjects. Additionally, the role of special education teachers is changing due to the emphasis on inclusion of special education students in regular education classes, in which many special education teachers have become co-instructors with regular education teachers and may frequently move from class to class to assist the regular education teacher. Again, this generalist role does not lend itself to narrow categories of certification. Finally, requiring special education teachers to become "highly qualified" in every subject that 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 of certified special education teachers. Accordingly, we would strongly oppose any measure requiring special education teachers to be "highly qualified" in every subject that they teach.
Ability of IEP Team to choose appropriate assessment for each special education student. Another chief concern we have stemming from the requirements of the NCLB is the requirement that only 1% of special education students taking an off-grade level assessment can be counted as proficient for purposes of Adequate Yearly Progress (AYP). We strongly believe that this requirement of the federal accountability system serves to undermine the core principle of IDEA, which is to ensure individualized educational planning for each special education student. IDEA requires the IEP Team, a group of educators and parents most familiar with a particular special education student, to develop an individualized educational plan which is appropriate for that particular student, including any assessments that the student might take. To have an overlying federal accountability system which punishes schools for having a certain percentage of special education students taking particular assessments (off-grade level) may well have the effect of tempering the true individualized nature of the planning done by the IEP Team in deciding the best instructional plan for the student. Although it might be instructionally sound and appropriate for the IEP Team to designate an off-grade level test for a student, most commonly because the student is not able to participate in grade-level instruction for that particular subject, the NCLB punishes schools for doing so if they exceed a very small percentage (1%). Accordingly, we would urge Congress to take this opportunity in the reauthorization of IDEA to include language in the Act which prohibits any other law from imposing sanctions on a school for the decisions of the IEP Team regarding in which assessment(s) a particular student shall participate.
Supervision of paraprofessionals. Regarding paraprofessionals, we would oppose any measure that retreats from current language pertaining to training and supervision of paraprofessionals. It is imperative that the law makes clear that paraprofessionals may not be used to provide direct instruction to students and must be closely supervised by a certified teacher. We have seen too many instances of school districts trying to use paraprofessionals instead of teachers in instructing students, in order to try to save money on professional salaries.
Professional Development. In the area of professional development, we would support a proposal that expands authorization for the use of funds to activities that improve the knowledge of, not just special education teachers, but regular education teachers, principals and, in appropriate cases, paraprofessionals, concerning effective instructional practices. However, we would not support a diversion of funds allocated for the training of special education teachers in order to accomplish this. We strongly advocate for sufficient funding to accomplish both purposes. Although educator preparation programs appear to be improving in preparing regular education teacher candidates to educate children with disabilities, there is still a great need to give regular education teachers the skills and support they need in order to effectively educate a very diverse group of students in this day and age of inclusion of special education students into regular education classes.
Personnel. We would strongly oppose any measure that would constitute a retreat from current law regarding retraining or hiring of personnel who meet the highest requirements in the state or a retreat from the Comprehensive System of Personnel Development.
Parental consent for services. We would oppose any measures that impose further restrictions, other than those already contained in current law, upon the ability of LEAs to proceed with the provision of special education services.
Referral. We would support measures that expand the list of persons who can refer students for special education services. Similarly, we would oppose any measures which have a "chilling effect" on teachers' ability to refer students for special education services.
IEP Teams. Given that regular education teachers are increasingly responsible for educating students with disabilities, we would only support a measure that would potentially exclude their participation as a member of the IEP Team in the development, review and revision of IEPs, if that teacher gives written consent to be excluded from any of these requirements.
Additionally, teachers are in the awkward position of being the conduit through which many special education services are administered but without the corresponding protections and rights that parents and school districts have under the Act. Accordingly, if they want to advocate for the needs of one of their students, they must often choose between being a "team player" as a district employee, and speaking out or informing parents of the unmet needs that they see. Teachers are often in the best position to know what services a child might need. As members of the IEP Team, they should feel free to express their true opinions, even if it means disagreeing with the district or the parents.
Accordingly, we would recommend that the Act include language that makes it clear that teachers can express disagreement in IEP Team meetings. For example, Texas Commissioner of Education rules require that all members of the IEP Team (ARD committee) shall have the opportunity to participate in a collaborative manner in developing the IEP and that a decision of the committee concerning required elements of the IEP shall be made by mutual agreement of the required members if possible (see 19 Tex. Admin. Code section 89.1050(h)). Additionally, the Texas rules require that when mutual agreement is not reached, a written statement of the basis for the disagreement shall be included in the IEP. The members who disagree shall be offered the opportunity to write their own statements (Section 89.1050(h)(5)).
We would further recommend that the Act add language, similar to that found in the Americans with Disabilities Act regulations, that retaliation against school employees for advocating for special education students is illegal. Here is the language from the Americans with Disabilities Act:
Sec. 12203. Prohibition against retaliation and coercion
(a) Retaliation
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.(b) Interference, coercion, or intimidation
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.(c) Remedies and procedures
The remedies and procedures available under sections 12117 , 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively.
Another issue regarding IEP Teams is that, although teachers are required members of the IEP Team, they do not have the power to convene an IEP Team meeting even though they are responsible for implementing a major portion of the services provided under IDEA.
In this role, many teachers experience problems in the following areas:
- Getting timely services and support for students who are not yet being provided services under IDEA;
- Getting the IEP in a timely manner; and
- Getting prompt revisions to an existing IEP if the current one is not working.
Problem area #1 occurs when a teacher is discouraged from referring students for evaluation. In fact, due to the limited amount of federal funding for IDEA, there are actually disincentives for a district to identify a student as disabled.
Recommendation:
One way that Texas has addressed the first problem area is to adopt a rule that provides "Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial, remedial, compensatory, and other services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must (emphasis added) refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student." (19 Tex. Admin. Code §89.1011. Referral for Full and Individual Initial Evaluation).
We believe that this language should be added to the Act to clarify that a student should not be allowed to languish in class without proper services/support and that teachers are actually charged with the responsibility to refer students for evaluation. Additionally, former Texas law provided that an evaluation must be completed "not later than the 60th calendar day following the date on which the referral for assessment was initiated by school personnel, the student's parent or legal guardian, or another appropriate person." We believe that this language should be added to the Act to ensure timely completion of the evaluation.
Problem area #2: Although Section 300.342(b)(3) of the current IDEA regulations provides that each teacher be informed of his/her specific responsibilities related to implementing the child's IEP and the specific accommodations, modifications, and supports that must be provided, it does not specify WHEN this is to occur. Very often, teachers will receive special education students in their classes, but not receive their IEPs for weeks, or even months afterwards. In the meantime, they are supposed to teach these children and help them progress.
Recommendation:
It would be helpful if the Act specified that the teacher is to be informed of responsibilities, etc., upon the special education child's enrollment in the teacher's class. Or if they were already enrolled in the teacher's class before being classified under special education, the teacher should be informed of such upon development of that student's IEP.
Problem area #3: Once a teacher has worked with a special education child in his/her class and finds that the IEP is not working, he/she has no power to convene an IEP Team meeting to re-evaluate the IEP and/or the child's placement. One of the major complaints that we hear from our members is that they are thrown into a situation with a child and a piece of paper (the IEP) and precious little else to help them help the child succeed academically.
Recommendation:
We appreciate the comments contained in the current IDEA regulations, Appendix A to Part 300 related to Section 300.550 (Least Restrictive Environment) that state that if the child's behavior in the regular classroom would significantly impair the learning of others, that placement would not meet his or her needs and would not be appropriate for that child. Accordingly, we would request a change in the language of the Act to allow a teacher to convene an IEP Team meeting in order to review whether a change of placement might be appropriate when the teacher is unable to instruct the student appropriately and/or unable to properly address the needs of their other students due to the included student.
Discipline. Regarding discipline of special education students, many of our members have expressed frustration regarding what they view as a "double standard" when it comes to disciplining special education students. Under Texas law, a teacher can remove a student from class for who has been documented by the teacher to repeatedly interfere with the teacher's ability to communicate effectively with the students in the class or with the ability of the student's classmates to learn; or whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher's ability to communicate effectively with the students in the class or with the ability of the student's classmates to learn.
Additionally, under Texas law, a teacher must remove a student from class for other statutorily specified prohibited conduct.
The teacher can refuse the return of the student to his/her class unless a specially formed committee determines it is the best or only placement available for the student.
With special education students, the likelihood of return to the teacher's class is much greater due to change in placement restrictions contained in federal law. The result is that all the students in the class, including special education students, suffer, and the issue is not resolved.
Accordingly, we would support measures that loosen the stringent requirements contained in current law about the placement of special education students in matters of discipline. Additionally, we would support measures in the law 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 be provided to the teacher in order to effectively instruct the students in the class, such as adding instructional aides and/or other means of support.
Another area of concern is that although the IEP Team is charged with the responsibility of deciding what discipline will be appropriate for a special education student, IDEA does not make it clear that the full range of options regarding discipline must always be available to the IEP Team, including restraint and time out. As a result, state law could preclude these discipline options from being considered by the IEP Team, thereby impeding their responsibility to identify the correct disciplinary plan based on the evidence that they have of foreseeable needs. Accordingly we would recommend that Congress clarify in IDEA that the IEP Team must be able to avail itself of the full range of disciplinary options in deciding the appropriate discipline plan for a special education student.
Although we understand the need to make sure that certain types of students are not overidentified for discipline, we would oppose any measures that would have a "chilling effect" on the ability of teachers to refer students for appropriate disciplinary action, including requirements that would add additional paperwork for teachers or requirements that would make an LEA resistant to changing the placement of a student when necessary.
Reducing paperwork for teachers. We are strongly supportive of any measures that will reduce paperwork for teachers. Overburdensome paperwork is one of the top complaints we receive from our members, particularly in the area of special education. We would support measures such as requiring regular reviews by federal, state, and local government (LEAs) of the paperwork requirements for teachers associated with special education, development of strategies for reducing these burdens on teachers, and language similar to that contained in North Carolina law which prohibits districts from requiring teachers to complete forms regarding compliance with IDEA that are not required by the U.S. Dept. of Education.
Duties associated with special education. Classroom teachers are being asked to perform various ancillary procedures on special education students, such as catheterization, changing diapers, assisting with bathroom needs, etc. Not only are many of them not trained in these procedures, but performing them takes them away from their main duty of teaching. Accordingly, we would support measures that prohibit classroom teachers from being required to perform these procedures, and that, rather, require that individuals other than classroom teachers be designated and trained to perform them.
Eligibility for special education services. Classroom teachers are struggling with students whose IQ's are barely above the cut-off needed to qualify for special education services. These students are expected to pass grade-level state assessments and yet fail to do so, time and time again. They also do not have the benefit of the targeted special resources available under programs such as special education. Accordingly, we would support measures such as allowing children who's IQs fall within a certain range above the cut-off, to be eligible to participate in, and receive the benefits of special education services and funding.
Additionally, we would be wary of measures that serve to impose more restrictive eligibility requirements than those contained in current law. Although we are aware that there is a belief that certain categories of students are overidentified for special education services, we believe that current law and the historical levels of funding for this law ensure the proper checks and balances against egregious overidentification.
Class size limits. Particularly with the emphasis we currently have under IDEA to place special education students in regular education classes to the maximum extent possible, it becomes increasingly important for regular education teachers, who are often not given special training regarding educating special education students, to have sufficient and necessary support to properly educate the different levels of learners in their classrooms. One of the most effective of these supports is a system which requires that the higher the number of special education students in any given class, the lower the class size for that class. Without this system in place, teachers are often forced to make a more amorphous argument that they are unable to successfully implement a student's IEP when they have too many other obligations to meet in successfully educating all the students in their classroom. Accordingly, we would urge that language be included in the Act to reduce by two the number of regular education students in each class for each included special education student placed in the class.
Thank your for this opportunity for input. We realize that the status of the reauthorization is quite fluid at this time, and we are hopeful that our comments are timely enough for your consideration.
Submitted by the Texas Classroom Teachers Association
