Education Department Begins Own Review Of Handicapped, Other Major Regulations
Federal rules governing the education of handicapped children--and perhaps the very definition of "handicapped"--have received high priority in the Reagan Administration's reassessment of existing government rules and regulations.
The Department of Education's Office for Special Education, acting in the wake of announcements in recent months that the Administration plans to "review" several major areas of federal regulation, including rules relating to the handicapped, has undertaken its own reviews of 16 sets of rules concerning education of the handicapped.
The department's Office for Civil Rights is also studying regulatory provisions of Section 504. Department officials expect the reviews to be completed by the end of this year, although new proposed regulations may take longer to develop.
The Presidential Task Force on Regulatory Relief, chaired by Vice-President George Bush, targeted in March and August two sweeping regulations concerning the handicapped for review: those implementing Section 504 of the 1973 Rehabilitation Act and the Education for All Handicapped Children Act of 1975.
Among the regulations under review, according to an internal briefing paper prepared by the special education office, are those pertaining to services provided to handicapped students; to requirements for due process and "mainstreaming"; and to requirements for Individualized Education Plans (iep), which now must be prepared for every handicapped child.
One of the options under consideration for iep's is revocation of requirements which impose administrative burdens and are not contained in the statute--for example, planning schedules and notification of parents.
Under this option, non-binding federal recommendations would be retained to provide clarification of program requirements.
The office, say officials, is not considering revoking the iep regulations, in effect, but is merely looking at those administrative portions of the regulations that are not mandated by the statute.
The special education office's review is part of a department-wide review affecting every Education Department regulation, according to officials.
Although they are reluctant to comment in detail on the shape of upcoming regulations, the officialsy the new rules will be less "prescriptive" and detailed than earlier regulations, will reduce paperwork, and will give greater flexibility to states and school districts.
"We are looking at everything," says Thomas C. Anderson, the department's deputy general counsel for regulations and legislation. "We are imposing a deregulation philosophy on the process of regulation."
Ultimately, the Education Department's review will cover all 200 rules now in effect plus any regulations arising from new policies or legislation, according to Neal A. Shedd, director of the Division for Regulations Management. A timetable for the two-year review process is to be released at the end of this month. The regulations are first being reviewed by divisions within the agency. Then all proposals regarding the rules--from preservation to abolition--must be cleared by Secretary of Education Terrel H. Bell and the Office of Management and Budget (omb).
But officials note that one of the key issues that remains unsettled, even within the framework of deregulation, is how much guidance and detail should be provided in any new regulations----and whether other forms of non-binding advisories should be used in some cases.
Although their review schedule has not yet been announced, regulations from the department's Office for Civil Rights (ocr) also are known to have high priority.
An internal memorandum, described by a source who is familiar with it, outlines 24 separate regulatory-review issues.
ocr is said to be studying the controversial issue of whether civil-rights regulations for such programs as Section 504 (handicapped) and Title IX (sex equity) should cover only those programs that directly receive federal funds, or whether they should apply generally to the institutions that receive federal funds. These regulations have usually been interpreted as covering all programs in a institution that receives federal funds.
Athletics Rules Studied
Other areas being studied include whether Title IX should cover sex discrimination against employees as well as against students. Secretary of Education Terrel H. Bell favors dropping the provision for employees, and asked the Justice Department for permission to delete that section of Title IX.
Although the Justice Department has not yet replied, it took a contrary position in court papers filed this month with the U.S. Supreme Court in a suit challenging the . In its brief, the Justice Department strongly defended the current employee regulations.
Also being studied are athletic policy interpretations of Title IX, which were singled out by the Bush task force in March.
Education officials say they are applying cost-benefit analysis to rulemaking and considering least costly and non-regulatory alternatives, in keeping with guidelines established by a Presidential Executive Order last February. They are also studying the degree to which current or proposed regulations have requirements not mandated by statutes.
The department is dividing its regulatory review into a few broad areas. The first is a review of a set of 28 regulations that were proposed in the last days of the Carter Administration and that took effect at the end of March. The regulations cover areas ranging from handicapped education to the Title I program for disadvantaged children to student-loan programs.
The 28 regulations have been organized into three sets of regulations according to subject matter, and the three sets will be reviewed by Sept. 30, 1981, Jan. 31, 1982 and June 30, 1982, respectively.
Carter Administration regulations affecting bias against the handicapped, vocational rehabilitation and impact aid, among other areas, will be reviewed by the end of the month. Regulations affecting the old Title I program will be completed by January, and those governing student-loan programs will be finished in June.
Another priority area is what department officials call "targets of opportunity"--those regulations deemed to be especially burdensome. Targets of opportunity are those regulations that have been the object of numerous complaints, and that are seen by department officials being too costly and prescriptive, or requiring too much paperwork.
So far, Mr. Shedd reports, only the sex-bias and handicapped regulations spotlighted by the Bush task force have been officially included in that category, but other regulations are likely to be included.
A third major priority area focuses on regulations that are required by newly-passed legislation. For instance, a Jan. 1, 1982 deadline has already been set for issuing proposed regulations governing Chapter I of the new Education Consolidation and Improvement Act (ecia), which replaces the old Title I program for disadvantaged children of the Elementary and Secondary Education Act (esea) of l965.
No Guidance for States
One official familiar with the regulatory review said that regulations pertaining to the new education act will not provide the kind of detailed guidance that some state education officials and advocacy groups appear to want. This has caused some ed officials to worry that the absence of federal regulations will give rise to new state bureaucracies that will oversee the new program, complete with their own sets of detailed regulations.
Some observers foresee a collision between ed and omb over the extent of regulatory guidance which will be provided for the implementation of Chapter I of the ecia, although Secretary Bell has yet to reach a final decision on the issue. But within the Education Department, some staff members favor providing more guidance to states and localities on administering the program than omb officials want.