Changes to Special Education Law Give States More Leeway


State officials are praising Congress' changes to special education law for giving states new flexibility and authority in schooling the nation's disabled children, but they remain skeptical of the promise of more federal money.

President George W. Bush is expected to sign the updates approved by Congress Nov. 19 to the nearly 30-year-old law, which details how states and schools must identify and serve children with mental and physical disabilities. The legislation includes harsher penalties for states that do not comply with federal rules and a pilot program in 15 states to reduce the mountains of paperwork that teachers and administrators must complete.

"This bill is largely responsive to governors' concerns. It reduces costly adversarial litigation, lessens the bureaucratic burden of paperwork on teachers and states, and most importantly, helps states and localities embrace innovation to improve academic achievement and services for students with disabilities," said Raymond C. Scheppach, executive director of the National Governors Association.

Linda Van Kuren, a spokeswoman for an association of special education teachers, the Council for Exceptional Children, said her organization was disappointed that Congress did not guarantee to pay for a larger share of the federal mandates.

Under the bill, the federal government pledges to ramp up funding over six years to pay for 40 percent of states' added costs for special education, as promised by the original 1975 Individuals with Disabilities Education Act. Federal money for special education has increased $3.6 billion over the past four years to $11.1 billion annually, but still covers just 19 percent of states' costs. Congress still will have to approve spending increases annually. A proposed amendment to require the full 40 percent funding was defeated on the floor of the Senate.

The National Conference of State Legislatures has estimated that the federal government underfunded special education by more than $10 billion last year.

"It's nice to say we finally need to do it, but it's not an appropriation level," said Reginald Felton, a lobbyist for the National School Boards Association.

In addition to being promised more money, school systems will have more flexibility for spending those dollars, with the ability to use up to 15 percent for children who are having difficulty in the early grades but have not yet been diagnosed with a learning disability.

Special education teachers, however, still will be required to be highly qualified under the federal No Child Left Behind Act for all of the academic courses they teach.

Under No Child Left Behind, all teachers must have a bachelor's degree and pass a state academic test by spring 2006.

Educators say this will be an extra burden, especially for middle- and high-school teachers in small and rural schools where special education teachers often must teach several subjects every day. In those cases, teachers will need to be certified in each subject area in addition to the highly specialized degrees required to teach mentally and physically disabled children.

"Special education is already one of the most difficult teaching disciplines, and it is difficult to attract and retain teachers. Ninety-eight percent of the nation's school districts report shortages of special education teachers," said David Griffith, a spokesman for the National Association of State Boards of Education. "If we add substantial new requirements on top of their special education degrees, many teachers are likely to leave the field of special education," he said.

Parents and their advocates also got at least some of what they wanted from the legislation, including an expedited process for changing what kind of special services disabled children receive and more job training for disabled teens who will be graduating or leaving school. Disabled children can no longer be required to take medication as a condition for attending school or receiving special services.

But contrary to many parent advocates' wishes, the bill also allows school systems to expel disabled children from the classroom for disruptive or violent actions. The law would require schools to continue special education services if a child is suspended for more than 10 days, and parents now will bear the burden of proving that the misbehavior is due to a child's disability.

The changes to the law took 18 months to clear Congress and are meant to spur improved academic performance of disabled children. The legislation also is designed to diffuse the emotional and litigious battles over special education that often pit states and school systems against parents who charge that administrators would rather fight in court than provide costly services.

"Far too often, issues between parents and schools quickly wind up in court," said U.S. Sen. Ted Kennedy (D-Mass.). "This bill tries to resolve them first through a complaint process before resorting to litigation," he said.

While congressional leaders patted themselves on the back for passing the bill in the waning hours of their 2004 session, some parents and education experts did not see the proposed changes as anything more than tweaking the current law.

"It's unclear to me how much of a dramatic overhaul this will be," said Kathleen Porter-Magee, a researcher at the Thomas B. Fordham Foundation, an education think-tank. 


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