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NCD WANTS STATE IDEA OVERSIGHT SHIFTED FROM PARENTS TO DOJ

January 27, 2000

WASHINGTON -- Nothing in the current Individuals with Disabilities Education Act assigns oversight duties to the parents of children with disabilities, but they have nevertheless become the default enforcers of state compliance, the National Council of Disabilities says. Under the Department of Education's current system of monitoring state compliance with IDEA, states have widely disregarded the law's key provisions, leaving parents to sue their school districts and, in some cases, the states to get appropriate services for their children, the council said in a report released Monday. The NCD is now calling for an independent enforcement role for the Department of Justice that will relieve the parents of that costly litigation burden.

"Federal efforts over several administrations to enforce IDEA in states where noncompliance exists have been inconsistent, ineffective and without any real teeth," NCD Chairwoman Marca Bristo said. In particular, the council found that the Department of Education has rarely tapped its own power to impose sanctions on states that fail to comply or to refer those states to the Department of Justice for further action. The department has also failed to make it clear to the states or to the public its criteria for enforcing IDEA, giving no weight to the monitoring process the state conducts and compliance reports it issues.

"Notwithstanding federal monitoring reports documenting widespread noncompliance, enforcement of the law is the burden of parents who too often must invoke formal complaint procedures and due process hearings, including expensive and time-consuming litigation, to obtain the appropriate services and supports to which their children are entitled under the law," the NCD wrote in its report, "Back to School on Civil Rights."

Multi-part Reform Plan

The NCD put together a list of recommendations for reforming the current processes of supporting IDEA and enforcing it at the state and local level. Many of the recommendations would have to be legislated if they are to have the teeth the council wants them to have. Among them, the NCD wants Congress to amend IDEA to create a federal complaint-handling process to address systemic violations of the law by either state or local education agencies. The NCD's proposed amendment would also give the Department of Justice the power to implement the complaint-handling process, taking those power away from the Department of Education, where they lie in a less specific form now.

Putting enforcement in the hands of a separate agency is not a new concept on Capitol Hill. Sen. Ted Kennedy (D-Mass.) fought for precisely such a separation of IDEA enforcement powers before the 1997 amendments were enacted, Kennedy staffer Connie Garner said, but failed to build enough support to keep that provision in the reauthorization bill that eventually passed. The way the law is currently written, using compromise language Kennedy agreed to in order to move the bill off the hill, essentially asks one agency to defer to another and admit it cannot handle a particular responsibility, Garner argued.

"This is the same situation we're in again," she said. "We know from the NCD's report, as well as from reports all over the country, that at the end of the food chain kids with disabilities and their families are not getting what they need for children to be successful."

Garner issued a challenge to the advocacy groups gathered Monday for the NCD's unveiling of the final report: "If you want to see change with regard to enforcement of these laws, where are you and where are you going to be when the going gets tough and the rubber hits the road to get this thing moving?" Noting Kennedy and Sen. Tom Harkin (D-Iowa) are again lined up to support the special ed. community's campaign, Garner said, "I ask you to think long and hard, because you have two Senators here willing to go out on a limb, in a Congress where they are a minority, to try to do something different around this law."

Though it would remove the Department of Education from the process, the NCD said such an amendment should "complement, not supplant, complaint procedures and the due process hearing at the state level." Similarly, the NCD urges Congress to amend IDEA to give Justice independent authority to investigate and litigate cases brought under IDEA, based on specific criteria Justice would set to warrant federal cases.

Along with such an amendment, Congress would have to commit to "adequate funding" for such a process. Specifically, the NCD suggests that, every time IDEA programs get a federal funding increase in the budget, additional funds amounting to 10 percent of that increase should be allocated to Justice and Education efforts to enforce the law.

This presents a daunting task for the NCD and other lobbying organizations, considering Congress' failure to fully fund IDEA as it is currently written. In comments to disability education advocates Thursday, Congressman John Porter (R-Ill.) estimated the federal budget currently includes about 13 percent of the money needed to implement and enforce IDEA, despite promises by numerous Congresses and administrations to provide 40 percent funding.

More Cooperative Training, More Powerful Advocacy

Beyond enforcement, the NCD calls for better training and advocacy programs for regular and special ed. teachers and families, generated by more cooperative efforts among federal, state and local agencies. "School administrators, special education directors, school principals, and agents of federal, state, and local governments must stop working at cross purposes and commit to working together to resolve, not conceal or ignore, these very real problems," the report says. "If the federal government continues to refrain from taking enforcement action in the face of widespread failures to ensure Part B compliance, this atmosphere of questionable commitment to the civil rights of students with disabilities will continue."

Similar to the enforcement plan, the NCD's training and advocacy programs would require more money from the federal budget. The council recommends another 10 percent of any IDEA funding increase to go to training and advocacy. In addition, the NCD wants the Department of Education to form a "comprehensive and coordinated" advocacy and technical assistance system in every state. As part of this effort, the department's Office of Special Education Programs should allocate some of its budget to bolster public and private advocacy groups that could teach parents how to be their own advocates. The advocacy and technical assistance system should make a lawyer available at every Parent Training and Information Center, establish a national information clearinghouse with legal materials and training resources, and train all parties at the local level in culturally sensitive and multi-lingual dispute resolution strategies.

According to NCD staffers, the detailed and aggressive reform plan is designed to be as comprehensive as possible, even though the lobbying process will likely require compromises that could water down or weaken the changes the council wants to see. The strategy is "Shoot for the moon and the stars, and maybe you'll get the stars," the staffers said. Which of the NCD's recommendations take priority in the lobbying effort will be determined partly by the climate on Capitol Hill during this election year and partly by how receptive the Department of Education and the Department of Justice are to making changes on their own, Bristo said.

States Miss the Mark, By a Mile

The NCD's recommendations stem from findings of widespread non-compliance with the current law across all 50 states, which it summarized last fall. The comprehensive report itemizes seven areas of compliance states must fulfill, as well as specific provisions within each of those areas. As reported, none of the states are in compliance in all seven areas, and only one, Nevada, is compliant in five of the seven. The state failed to meet requirements for transition services, and not enough information was available for most of the study's "general supervision" category, including services for incarcerated students and timely complaint management and resolution. The only other shining stars in the report were Hawaii, which met compliance criteria in four categories and failed two, Arkansas, which passed three categories and failed two, Oregon, which passed three and failed three, and South Dakota, which passed three and failed four.

Thirty-one states failed to show compliance in even one of the seven study areas, and six - Connecticut, Michigan, New Jersey, New York, Rhode Island and Wisconsin -- failed every single compliance test.

Though the report does not identify areas of noncompliance below the state level, the NCD is recommending that Congress commission the General Accounting Office, its non-partisan research arm, to gauge the extent to which individual state and local education agencies are complying with the law. The council also wants the Department of Education's Office of the Inspector General to conduct independent audits to determine whether the states are spending their federal IDEA grants appropriately. In light of the Republican Congress' recent push for more flexibility in how the states spend their federal funds, some argue the legislators should be willing to accept greater oversight of that spending as a caveat.

Political Battle Ahead

Despite these stark results of state monitoring programs conducted throughout the mid-1990s, the NCD gives the Department of Education under Richard Riley credit for accomplishing more in this decade than all of the past administrations have combined. This recent track record, plus the Department of Justice's strong stance on civil rights issues, gives special ed. advocacy groups reason to believe they may make some headway persuading the departments to improve current IDEA enforcement, NCD staffers said.

Special ed. advocacy groups may have a longer road to travel in their effort to bring the Department of Justice into the picture, NCD staffers said. Largely because the Department of Education has declined to involve Justice, and despite its active stance on the Americans with Disabilities Act, Justice has very little understanding of IDEA and special ed. issues, they said. In discussions there, the NCD will rely heavily on its argument that special education rights are civil rights that the department has an obligation to protect, Bristo said.

The challenge of educating the Justice Department, motivating the Education Department and driving legislation through Congress on an election-shortened calendar will be monumental, Bristo acknowledged. "It's going to take an enormous effort on the part of everyone in the room, the likes of which we haven't seen since ADA."8