CHADD Comments on ID

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Comments and Regulatory Recommendations for the Notice of Proposed Rulemaking of June 21, 2005 (70 Fed. Reg. 35781) Individuals With  Disabilities Education Improvement Act, P.L. 108-446


Submitted by Children & Adults with Attention-Deficit/Hyperactivity Disorder (CHADD) - August 26, 2005

Submitted Via Email to: IDEAComments@ed.gov
Subject: Comments on IDEA–Part B

Thank you for the opportunity to comment and make recommendations on the Department of Education’s Proposed Regulations to implement the 2004 Reauthorization of the Individuals with Disabilities Education Act (IDEA).  Children and Adults with Attention-Deficit/ Hyperactivity Disorder, Inc. (CHADD), is the nation's leading organization providing support to individuals and families living with AD/HD. 

Attention-Deficit/Hyperactivity Disorder (AD/HD) is characterized by a developmentally inappropriate level of inattention, distractibility, hyperactivity or some combination of all three characteristics. In addition, executive functioning weaknesses adversely impact decision-making, planning, organizational and time management skills. These often lead to school failure, socially inappropriate actions, and high-risk behaviors. According to the December 1999 NIMH Multimodal Treatment Study on AD/HD (MTA), there is a high degree of co-morbidity of AD/HD with other learning, behavioral or emotional conditions, with research showing that AD/HD occurs alone in approximately 30% of the documented cases.  This makes diagnosis and treatment more difficult.  According to OSEP’s National Longitudinal Studies (FACTS from OSEP’s National Longitudinal Studies, November 2004), approximately 37% of students receiving special education services are also diagnosed with AD/HD as either a primary or secondary disability.  A May 2002 Center for Disease Control publication (CDC Vital and Health Statistics), cites over half of the 1.623 million children with AD/HD, ages 6 to 11, had a co-occurring learning disability.

CHADD members have presented many personal reflections of the existing and proposed regulations during the public meetings held during June and July. Others may be submitting comments directly to the Department with additional parent and professional perspectives.  These individuals, both CHADD members and others, have testified that local school districts do not always sufficiently comply with the existing regulatory requirements.  These parent and advocate reports are consistent with reports often received by CHADD and provide the Department with an important balance to testimony about regulatory compliance that has been presented by some of the educator witnesses.  CHADD urges the Department to be responsive to these experiences by our members.  In addition to our members’ individual comments, CHADD submits the following specific recommendations and comments.

General organization of the regulations.

CHADD commends the Department for reorganizing the regulations to follow that of the 2004 statute.  While the change will initially present difficulty for those professionals both within and outside school systems, ultimately the change will lead to a clearer understanding of what is required and permitted under the law and how the Federal regulation support and amplify the law.  This change could be enhanced if statutory provisions were more clearly identified as such.


Child with a disability (§ 300.8)

Recommendation: CHADD supports retention of this provision unchanged.

Rationale: CHADD is glad the provision under which a child with AD/HD has been found eligible for special education services, 300.8 (c)(9) Other health impairment has not been changed from the current regulation.  While some aspects of the current (and proposed) definition have yielded uncertainty, more harm than good would come from revising this definition at this time.

Highly qualified special education teacher (§ 300.18)

Recommendation:  Delete entire §300.18(b)(2) as undermining §300.18(b)(1)(ii).

Rationale:  The aligning of IDEA with this requirement of No Child Left Behind (NCLB) is extremely important to CHADD and parents of students with AD/HD, since without a highly trained, knowledgeable classroom teacher, none of the protections and supports provided by IDEA will enable a child to be successful. 

However, one provision of the NPRM would undermine another provision and also the clear intent of Congress.  Section 300.18 (b)(1)(ii) reflect the clear Congressional mandate that the states requirement for “special education certification or licensure” has not been waived on an emergency, temporary, or provisional basis.”  Parents should be assured that the special education teacher provided for their child (or provided to assist their child’s classroom teacher) would be fully certified.  Section 300.18(b)(2) would clearly undermine this assurance by allowing an “alternative route to certification” for up to three years, during which time a school may utilize an individual seeking certification through such an alternative method and consider him/her as “highly qualified”. This is not supported by any provision of the Statute.

Related services (§ 300.34)

Recommendation:  Amend §300.34 (a) following the words “and includes” insert the phrase “, but is not limited to,” or a similar phrase at the end of the provision.

Rationale:  The proposed regulation at Section 300.34, implementing the new statutory provision at §602 (26), contains a list of both services and service providers that can be included within an IEP so that a child with a disability may benefit from special education. While the lists of both services and professionals are extensive, they are not intended to be all-inclusive.  However, experience has indicated that when the Department’s regulations contain an example of a method or a list, local school officials read these as proscriptive rather than permissive.  One area not specifically noted, but utilized regularly in individual programs to assist students with AD/HD is behavior interventions.  While positive behavioral interventions and supports are often provided by one of the listed specialties or other school personnel, other types of specialist often provides them. This can easily be clarified, without adding to the listed services or specialties identified in §300.34 (c).

Prohibition on Mandatory Medication (§ 300.174)

Recommendation: Section 300.174 should be expanded in the following way in order to eliminate any barrier to open communication between school personnel and parents regarding the need for professional evaluation. 

Section 300.174 (b) should be renamed “Statutory rule of construction”.

The following new provision should be added:
“§300.174(c) Additional clarification.  In implementing this section, school staff should neither promote nor discourage any specific medication or medical treatment options that parents and treating professionals may consider implementing.  However, when medication has been included in a treatment program to address a specific condition, nothing in this section shall be deemed as a bar to school staff reporting, to parents or their representatives, classroom observations on the impact and/or efficacy of specific treatments within a student’s treatment plan.  Best practices in medication management include the assessment and reporting of changes in a student’s classroom behavior, academic performance and functional performance in order for the treating professional to determine the most appropriate and/or required changes in medication and/or dosages.” 

Rationale:  The proposed regulation is a restatement of the wording in the Act with no additional clarification or commentary.  The Act and the regulation prohibit both state and local education personnel from requiring a child to have a prescription for a controlled substance as a condition of attending school. CHADD supports the underlying premise of this provision that no parent or child should be forced to adopt a medication or medical treatment for a disorder in order to attend a public school.

Teachers and related service providers are frequently the first to recognize learning, functioning and behavioral problems in the school setting and therefore should be able to advise parents of such observations. School personnel should be able to recommend to parents a comprehensive and complete medical assessment by persons licensed to perform such evaluations. Because students spend a significant portion of their day in the classroom, the vital role teachers’ play in providing observations to the diagnosing professionals cannot be understated. Effective communication between teachers, other professionals and parents is essential and strongly encouraged.   In addition, teachers and other school staff play a critical role in implementing programs of positive behavioral interventions and supports for student who’s AD/HD includes a behavioral component.  These programs require consistency between home and school.

Early intervening services (§ 300.226)

Recommendation 1: Redesignate §300.226 (a) as 226 (a)(1) and adding the following addition:
“(2) Except under circumstances related to disproportionality in §300.646 (a)(2), the LEA shall carry out activities under this section.”

Rationale:  The relationship between Section 300.226 and Section 300.646 must be clearly identified within the “Early intervening services” provision.  The later provision on Disproportionality, particularly §300.646 (b)(2) severely limits an LEA’s ability to serve students, other than those identified under the section, since it requires LEA’s “to reserve the maximum of funds under section 613(f) of the Act to provide comprehensive coordinated early intervening services to serve children in the LEA, particularly, but not exclusively, children in those groups that were significantly overidentified under paragraph a of this section; …” The section of the law cited is the authority for Early intervening services. This provision removes the LEA’s discretion and makes the program mandatory.

Recommendation 2: Redesignate §300.226 (c) as “Statutory construction”.  Redesignate Sections 226 (d) and (e), as “300.226 (e) and (f) respectively; and by inserting a new 300.226 (d) as follows:
“(d) Additional guidance.  Each LEA, in developing and maintaining early intervening services under this section, shall establish written policy for early intervening services, that shall include a requirement for parental notification and consent procedures, including and explanation of the relationship of early intervening services to special education and a clear statement that early intervening services are neither a prerequisite to nor necessarily a substitute for special education services.  Such written policies shall include:

  1. The time period for calculating when an evaluation to determine eligibility for special education services must be completed, which shall be triggered by a referral for evaluation and not by consent for such evaluation;
  2. A process of regular and frequent review, including parental participation, to determine the effectiveness of the early intervening services and to determine if the need for evaluation for special education services exists;
  3. A requirement that written notification shall have been provided to parent of all children receiving early intervening services that the right to request an evaluation for special education continues to exist; and
  4. A clear statement that related services personnel may be utilized in the design and implementation of early intervening services.”

Rationale:  This proposed regulations follow exactly the new statutory language of §613 (f) of IDEA 2004.  The Department has provided no additional clarification or supportive instructions.  CHADD has always been supportive that these provisions address students not identified for special education or related services, “but who need additional academic and behavioral support to succeed in a general education environment.”  Recognizing that any program of early intervention must broaden the focus on both early reading skills and behavioral skill has been a major effort of CHADD’s and organizations that we brought together into the Children’s Behavioral Alliance.  Many members of this alliance will be able to provide valuable support to local school officials as they design appropriate “professional development as envisioned by §300.226 (b)(1).

However, in merely repeating the statutory provision the proposed regulations fail to provide local and state officials with guidance on the movement of students identified for such services into special education and related services.  Section 300.226 (d)(2) clearly recognizes that some students identified under this provision will eventually need special education and related services.  CHADD has concerns that students will remain in these services beyond when they should have been referred for assessment for more comprehensive services and supports under IDEA Part B. 

The regulations must require systems establishing such programs, especially for students exhibiting behavioral challenges, to provide parents with notice of the relationship between Early intervening services and Special Education services.   This can be accomplished by identifying the “Construction” as “Statutory construction”, and by following it with “Additional guidance”.  

Parental consent (§ 300.300) and Consent (§ 300.9)

Recommendation: Rather than use the term “agree”, the defined term “Consent”, with a reference back to the definition at §300.9 should be used throughout the regulation.

Rationale:  These two proposed regulatory provisions implement § 614 (a)(1)(D) of the statute.  They provide a clear indication of the obligation that the local school official have in providing sufficient information to parents so that they can make an informed decision at various stages of the process.  However, there are places that utilize the words “agreement” and “agree” that are not defined terms in the proposed regulation. One example is in §300.321(e) regarding who will attend an IEP Team meeting.  It should be clear throughout that the LEA has a continuing obligation to insure that parents are fully informed and are given the opportunity to approve in writing.

Evaluation procedures. (§300.304(b)(1) and (2))

Recommendation:  Insert in §300.304 (b) after the word “must”, the word “always”.  Insert in §300.304 (b)(2) after the word “with” the words “or without”.

Rationale:  The proposed regulation makes clear that the school system must “…gather relevant functional, developmental, and academic information about the child, including information provided by the parents.” CHADD supports this provision, but is concerned that the all too-often, existing practice of looking only at academic information will be continued if this provision is not stressed.  This should also be supported by making item 2 apply to both “whether a child is a child with [or without] a disability….”

Specific learning disabilities (§300.307)

Recommendation:  CHADD supports to statutory change that eliminated the requirement of the severe discrepancy in determining eligibility for special education services for a child with a learning disability.

Rationale:  CHADD recognizes the high co-morbidity of AD/HD and specific learning disabilities (LD) and notes the conflict over the relationship of the newly authorized assessment method, “response to intervention (RTI)” and the existing method, “severe discrepancy between intellectual ability and achievement (discrepancy formula)”.  CHADD defers to the LD organizations to work with the Department to resolve this conflict. However, we urge the Department to recognize the extreme disparity of recourses that LEA’s will have in initially implementing the RTI model and hope that this will be taken into account in the Final Rule.  CHADD also notes that the presence of AD/HD and its adverse impact of educational performance would under the existing and proposed regulations qualify a student for services to address the adverse impact of the AD/HD and all other co-existing learning impediments.

Individualized Education Program (§ 300.320-324)

Recommendation:  CHADD supports the majority of the IEP provisions of the proposed rule.  These provisions are both consistent with the current regulation, while also supporting the Department’s desire to support evidenced based practices.  The provision would be strengthened with a specific linkage to the results of assessments of the child’s functional behavior in order to eliminate the need to infer this from the proposed provision.

Rationale:  The proposed regulation is a merger of changes made by the revised statute and continuation of existing regulatory guidance for provisions that could be retained as compatible with the new law.  CHADD wishes to complement the Department for the continued strong regulatory support of positive behavioral interventions and supports.  This is evident in several provisions in these sections, but in particular in §300.324 (a)(2)(i) Consideration of special factors and this would be enhanced if the words “based on functional behavioral assessments,” were added.  Numerous studies have demonstrated that use of these assessments leads to the development of successful behavioral interventions for students. 

Statement of measurable annual goals (§300.320 (a)(2)(i))

Recommendation:  The regulations should be modified at either §§300.320 (a)(2)(i) or (ii) to clearly indicate that while not required, benchmarks or short-term objectives may be utilized by IEP teams to address those educational needs that would best be measured through their use.

Rationale:  CHADD notes that both academic and functional goals are to be included in the annual statement in order to meet each child’s educational needs.  While the existing requirement for benchmarks or short-term objectives would only be required for those who take alternate assessments aligned to alternate achievement standards, they are not prohibited and may be utilized by IEP teams to enable measurement of progress in addressing certain functional areas, not easily measurable through other means.

Transition services (§300.320 (b))

Recommendation:  CHADD strongly supports this provision as proposed.

Rationale:  CHADD supports the availability of transition services for students with disabilities younger than age 16.  The proposed regulation wisely defers to the judgment of the individual IEP team and involves the parents in this critical decision.

Procedural safeguards notice (§300.504)

Recommendation: Redesignate item “(3)” as item “(4)” at the end of §300.504(a) and insert a new item as follows:
 “(3) If it is determined by school staff that understanding of procedures is an issue with specific parents, at any other time that a change of services is contemplated; and”

Rationale:  In accordance with the specific provision of the statute (§615(d)(1)(A)) and as an attempt to reduce paperwork, schools are only required to provide parents notice of their procedural rights once per year, or at specified other occasions, or when requested.  While this may not present a problem for parents familiar with the need to request copies of procedures, many parents will be unaware of their need for such a request or that they may have rights to protect their child’s educational entitlement that they are not protecting.

Discipline Procedures (§300.530-536)

1.  Case-by-case determination (§300.530(a)) 

Recommendation: Insert at the end of (a) “In determining the uniqueness of specific circumstances the school personnel shall be guided by: (1) the relationship of the student’s disability to the violation, (2) events that may have preceded the violation, (3) the student’s prior record of student code of conduct violations, and (4) assuring that suspension, expulsion, or transfer to an alternative setting based on conduct code violations shall only occur for serious offenses, where transfers or exclusions would otherwise be permitted under the act.”

Rationale:  This new provision is taken directly from the law (§615(k)(1)(A)) and from Congressional direction in a note in the Conference Report.  CHADD supports the use of “unique circumstances”; however without additional guidance states and local school divisions will utilize widely varied interpretations of what circumstances should be deemed unique and how individual students are to be treated.


2.  General (§300.530(b) and §300.536)

Recommendation: Utilizing a closer reading of IDEA 2004 §615(k)(1)(C) and (D), rewrite Section 300.536 to assure that once a child is removed for more than 10 school days, even if the violation was not a result of the disability, special education services and, if appropriate related services, will be provided.

Rationale:  The proposed regulation amounts to a new definition of the long-standing phrase “change of placement.”  While §530(b)(1) contains a parenthetical phrase “(as long as those removals do not constitute a change of placement under §300.536)”, the actual result of multiple removals for not more than 10 consecutive school days would be a reduction in the LEA’s duty to provide educational services to the child during each such removal.  Prior to IDEA 1997 and the accompanying 1999 regulations, some schools utilized “serial suspensions” to avoid procedural rights that would accompany longer term disciplinary action.  By making the new definition of Change of placement in Section 300.536 more restrictive, the regulation would allow multiple removals for up to 10 school days without the IEP team establishing the services the student will receive.

3.  Additional authority §300.530(c), Services §300.530(d), Manifestation determination §300.530(e), and Determination that behavior was a manifestation §300.530(f)

Recommendation:  The notices required under both §§ 300.504 and 300.530(h) of procedural rights and that a disciplinary action is being taken must contain clear and unambiguous reference to this change of location during any appeal of a decision.  The provisions of §300.532(c) for an expedited hearing must also be clearly stated in the notice.

Rationale:  These provisions implement the statutory provisions of Section 615(k)(1)(C) & (D) of the Law, except that §300.530(d)(3) & (4) are not in the statute.  Section 530(c) implements the continued use of a process to determine if the student’s violation was not a manifestation of the student’s disability.  CHADD is very supportive that the regulations, although completely revised, continue to stress the importance of the manifestation determination process in making sure that the violation was not caused by and a result of the student’s disability.  CHADD is particularly pleased that the proposed regulation includes §300.530(e)(1)(ii) that would continue to include within the manifestation process, “the LEA’s failure to implement the IEP.”

One significant change that was made by the statue (§615(k)(3)&(4)) and the proposed regulations at §300.532 & 533 is the location of the student during any appeal of a decision regarding either placement or the manifestation determination.  The prior statute and the existing regulations retain the child’s prior placement, the so-called “stay put” provision.  The new provision maintains the student in an interim alternative educational setting until there is a decision or the time specified expires.  This change must be clearly identified for parents in all notices.

Thank you for the opportunity to fully participate in this process and provide these comments and recommendations.