Comments and Regulatory Recommendations for the Individuals With Disabilities Education Improvement Act, P.L. 108-446

Submitted by Children & Adults with Attention-Deficit/Hyperactivity Disorder (CHADD) - February 28, 2005

Submitted Via Email to:
Subject: Comments on IDEA–2004

Thank you for the opportunity to comment and make recommendations as the Department of Education prepares to draft 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 only 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 greatly appreciates the strengthened emphasis on behavioral interventions throughout P.L. 108-446.  As the second most common reason for referral to special education (Minority Students in Special and Gifted Education, National Academy of Sciences, 2002), emotional problems demand as strong an emphasis on prevention and intervention efforts within general education as reading problems and other academic difficulties. We encourage the Department to continue this emphasis.

CHADD led a two-year effort by a diverse group of organizations assessing the impact of behavior on school environment and academic success.  The group became known as the Children’s Behavioral Alliance (CBA) and the effort led to the January 2003 issuance of paper entitled, In the Best Interests of All.  A copy of In the Best Interests of All is included with these comments.  Twenty seven national organizations belong to the Children’s Behavioral Alliance.  Numerous legislative and regulatory recommendations were contained in the paper and are incorporated into these comments. CHADD recommends the use of school-wide prevention and intervention programs that incorporate early identification and utilize school-based mental health service providers. This follows the recommendations of the CBA and recognizes the new Section 665 Grant program included in P.L. 108-446.

CHADD presents the following specific recommendations related to the identified sections of P.L.108-446:

Section 609:  Paperwork Reduction Pilot

The statute provides that up to 15 states may be granted waivers of requirements under the act as a demonstration of identified ways to reduce paperwork burden and other administrative duties.  The waivers may not waive any statutory or regulatory requirements related to applicable civil rights requirements or a child with a disabilities’ right to FAPE.  Parents are rightfully concerned that the waiver requests will construe a child’s rights very narrowly and that the pilot will weaken parents’ ability to determine if specific aspects of their children’s programs are effective and/or being satisfactorily implemented.

Recommendation: Include sufficient detail in the structure of the waiver application so that the Department has a clear indication of how schools within the pilot will continue to monitor and report student’s progress toward attaining goals with reasonable time-frames throughout the school year.  This is especially critical with regard to identified behavioral goals and those related to learning processes.

The regulations should require public notice before the proposal is developed, family participation on any committee charged with the development of the proposal, and public comment on the proposal before it is finalized and implemented.  The notice should have a particular emphasis on communicating to parents the potential impact of participating in this pilot program. The Secretary, in establishing the required timeline for the program, should allow adequate time for this development process to take place.

Section 612(a) (25):  Prohibition on Mandatory Medication

The provision requires the SEA to prohibit any state or local education agency personnel from requiring a prescription for a controlled substance as a condition of attending school.  The provision also indicates that this is not a prohibition against teachers and other school personnel from consulting or sharing classroom based observations with parents. 

CHADD believes that this latter language is imperative to ensure that the lines of communication between school personnel and parents remain open regarding the needs and behaviors of the child.  It remains our concern that, without specific clear language, such policies would be interpreted as a prohibition on certain discussions between school personnel and parents and would create a chilling effect on the identification of students with mental health and behavioral needs. The data from the Surgeon General's Report on Mental Health (1999), the President's New Freedom Commission on Mental Health, and other sources indicate that the under identification and misidentification of children and adolescents with mental disorders is already a huge problem.

Recommendation:  The regulations must clearly state that teachers and other school staff continue to have a responsibility to observe and report to parents, problematic behaviors that may indicate the need for further evaluation.  Furthermore, such communication must happen in a timely fashion in order to be effective.  Because the symptoms of AD/HD are most apparent in an academic setting, teachers are frequently the first to recognize learning problems, executive functioning weaknesses, and behavioral problems of a student. The proposed regulations must address this issue proactively and make it abundantly clear that teachers have a responsibility and a duty to discuss with parents any classroom behavior that may be related to a disability, especially a psychiatric disorder.

Recommendation:  Teachers need to receive guidance and training to effectively communicate with parents about problematic classroom observations without appearing to diagnose.  Learning to use phrases such as “characteristics that may indicate AD/HD” help teachers communicate concern to parents without assuming the role of a health care professional.   At the same time the parent clearly receives the important feedback about the needs of a child.

Section 613(f):  Early Intervening Services

CHADD appreciates the inclusion of positive behavioral interventions as part of the early intervening services that may be provided to students not yet classified under IDEA. We are also pleased that “other school staff” is included in the professional development section on delivering scientifically based academic and behavioral interventions. Parental consent should be obtained before a child receives early intervening services. The regulations should clarify for schools that no services provided under this provision shall be the sole responsibility of a special education teacher funded by IDEA Part B, including scientifically based literacy instruction. Utilizing current school personnel, particularly those specially trained to recognize students in need of additional services, can also improve collaboration between general and special education staff. This should allow for more efficient use of IDEA dollars and improved coordination and implementation of No Child Left Behind (NCLB) and IDEA programs.

Recommendation:  CHADD recommends the inclusion of the following language in the regulations:  (a) In implementing early intervening services, a local educational agency may utilize related services personnel to:

  1. assist in the determination of students who will receive coordinated, early intervening services;
  2. assist in the design, implementation, and provision of such services; and,
  3. consult with teachers and other school personnel on the provision of such services in the general education environment.

Recommendation:  School districts should be aware that they have available a cadre of related services personnel whose specialized training includes developing just such interventions.  Specifically, schools should utilize school-based mental health professionals that are trained to develop positive behavioral interventions.  These interventions  are directly linked to improved academic achievement.

The regulations should require schools to provide parents with information about the differences between early intervening services and special educations services, and the process to be followed for each. Parental consent should be obtained before a child receives early intervening services.

Section 614: Evaluation, Eligibility, and Individualized Education Programs (IEPs)

Section 614(d)(1) of the new law requires a statement of the child’s present levels of academic achievement and functional performance.  Guidance and training is needed on how to measure functional performance.  For many students with AD/HD, one of the most significant adverse impacts of the disorder is the timeliness and completeness of  assignments that shows their subject mastery.  Problems with organization and time management must be evaluated independent of the academic achievement and when identified, must be addressed with specific accommodations in the IEP.

Recommendation: The regulations should clarify that the IEP team still has the option to use specific objectives that are an appropriate way to measure progress toward annual goals, especially functional goals, even for students who take an assessment aligned to grade level achievement standards.  Work production baseline performance and behavioral baseline performance needs to be specifically described in the students’ IEP under present level of functioning.  If such baselines are not included, it becomes extremely difficult to accurately measure progress toward annual goals.

CHADD would like to underscore that the statute calls for consideration of behavioral problems when designing an IEP, as well as the use of positive behavioral supports, interventions, and services. The regulations should include language specifying that behavioral intervention plans be "linked" to the results of functional behavioral assessments. The hallmark of a successful behavioral intervention plan is that the plan is developed based on the results of a functional behavioral assessment and addresses the specific behaviors and causes identified in the assessment. 

Recommendation:  The regulations should strongly encourage school districts to draw on the extensive body of research on the effectiveness of positive behavioral supports, interventions, and services and the benefits of their use. School districts should be encouraged to provide both individual and systemic research-based interventions, which will address both the individual child’s needs and improve the overall school climate.

CHADD also recommends that the Department promote continued research on effective behavioral assessments and interventions in order to continue the progress of their application

Section 614(d)(5) authorizes a pilot for fifteen states to utilize multi year IEPs.  There is grave concern among many of our members that any multi year IEP will be less relevant and effective for special education students than annual IEPs. 

Recommendation:  The regulations should ensure that student participation is voluntary, that all parents involved should receive annual notification that an IEP meeting may be requested at any time, and parents are included in the development of any state proposal.  In addition, an evaluation of the impact of multiyear IEPs on student progress should be required. 

Section 615: Procedural Safeguards

Research has found that students with AD/HD have more suspensions and expulsions than other students (FACTS from OSEP’s National Longitudinal Studies, Nov, 2004).  CHADD supports the provision in the new law that calls for schools to continue to take a child’s disability into account in imposing discipline for violations of school code.  The regulations should continue to provide safeguards to ensure that children and adolescents with mental health disorders, who engage in misconduct, are not deprived of educational services. The act clearly states that if school personnel seek to order a change of placement that would exceed 10 school days, the disciplinary procedures applicable to children without disabilities may only be applied to a child with a disability if the behavior is determined not to be a manifestation of the child’s disability. This is unchanged from IDEA 1997. Therefore, IDEA 2004 still appears to require the LEA to determine that the behavior is not a manifestation of the disability rather than shifting the burden to the parents to prove the behavior is a manifestation of the disability.  Other provisions of the law do create confusion on this issue.

Recommendation:  The regulations should clarify that the school is required to show that the child’s disability did not impair his/her ability to understand the impact or consequences of the behavior or to control the behavior before it can be determined that the conduct was not a manifestation of the child’s disability.

In addition, the regulations for the manifestation determination review should clarify that the child’s IEP must be found to be appropriate and properly implemented before it can be determined that the child’s conduct was not a manifestation of his/her disability.

Children with AD/HD and other mental health disorders often face stigma and barriers to identification and treatment; this leads to poor educational outcomes.  Services designed and offered under IDEA can greatly assist in addressing these students' with AD/HD needs, improving their academic achievement, and strengthening their chances for success in life.
CHADD Families continue to struggle to get needed and appropriate services under IDEA.

Thank you for your consideration of these comments concerning implementation of the IDEA. CHADD welcomes the opportunity to work with the Department in developing the regulations for this vital piece of legislation.  For further information, please contact Stephen H. Spector, Director of Public Policy at 301-306-7070, Extension 109 or