Deregulation Efforts Proceeding Rapidly: Disputes Expected
The complex group of federal rules governing the educational and civil rights of the handicapped--which school officials have bemoaned as the most unnecessarily complex and "litigious" regulations in the history of U.S. public education--are undergoing sweeping revisions by the Reagan Administration that are bound to provoke new controversy across the country.
Draft documents circulating among officials of the Education Department, the Justice Department, and the Office of Management and Budget in recent weeks indicate clearly that the Administration is proceeding rapidly to fulfill the President's campaign promise to "lift the regulatory burden" from state and local education agencies.
One document discusses proposed revisions for the regulations governing the 1975 Education for All Handicapped Children Act (P.L. 94-142). The second draft outlines a Justice Department proposal to consolidate the language, implementation, and enforcement of the government's principal civil-rights measures, including those concerning the handicapped, within a single set of rules under the aegis of the assistant attorney general for civil rights.
For a summary of changes proposedfor P.L. 94-142 rules, see page 14.
Arguments over both sets of proposals continue within the Administration and among interest groups aware of their contents, but Administration officials plan to publish both for public comment by early April at the latest.
The contents of the two proposals reveal changes that appear designed to dismantle a significant proportion of the regulatory machinery now required at the federal, state, and local level to administer educational programs for the handicapped within the law. The Justice Department proposal in particular modifies current regulatory language in ways that could limit the number of students eligible for special programs because of a handicapping condition.
Major components of the proposed changes include the following:
--To regulations of The Education for All Handicapped Children Act (eha)
The language of the extensive and detailed regulations is simplified in every major category to eliminate "paperwork" and "burdensome" monitoring, reporting, and evaluation requirements for states and localities. In most cases, the language of the existing regulations--published in 1978--reverts in the new regulations to the broader, "less prescriptive" language of the statute.
The proposal narrows the definitions of "handicapped children," "special education," "related services," and "specific learning disabilities" to emphasize that "the existence of a handicapping condition does not, by itself, confer eligibility."
The revision loosens requirements for due-process proceedings involving handicapped children and their parents, a change Education Department officials acknowledge will be "highly controversial."
It eliminates the current requirement for advance parental consent to decisions about the placement of a handicapped child, requiring only advance "notice."
The revision eliminates all regulations not in the law itself on maintaining handicapped schoolchildren in "the least restrictive environment," a change also acknowledged to be likely to spark controversy. The law, and supporting case law, department officials say, "support retention of a general standard that placements must be individually determined according to a child's individualized education plan."
Detailed reporting and evaluation requirements now mandated for state and local agencies in constructing the individualized education plans (iep) would be eliminated.
As is the case in the existing regulations, the revisions include no language on suspension or expulsion of handicapped students. Case law, officials state, provides precedents in that area. (See accompanying story, beginning on page 1.)
--To Section 504 of the Rehabilitation Act of 1973
The proposal would eliminate any reference to P.L. 94-142, including thousands of words now in Section 504 detailing requirements to provide a "free appropriate public education" to handicapped students. All previous language referring to education is consolidated into a few broadly worded pages.
The new Section 504 eliminates from the definition of "handicapped person" the category of "emotional illness." The change, the draft says, is "intended only to discourage misclassification of children as emotionally disturbed." The draft directs the Secretary of Education to "establish standards to ensure that students are not inappropriately classified as psychologically or mentally handicapped."
To the definition of "qualified handicapped person" the revision adds qualifications that could affect vocational education programs, which are not specifically mentioned in proposed language on elementary and secondary education. The revision states that to be qualified a handicapped person must meet the "essential eligibility requirements" of a program and be a member of a "group or class" of handicapped persons who could achieve the purpose of the program "without imposition of undue hardship or unreasonable cost" to the provider.
The revision reverses the thrust of 1977 Department of Health, Education and Welfare rules on Section 504 requiring schools to place a disabled child in the "regular educational environment unless it is demonstrated by [the schools] that the education ... with the use of supplementary aids and services cannot be achieved satisfactorily." The new rule requires so-called "mainstreaming" be carried out only "to the maximum extent possible."
The revision calls for "adequate procedural safeguards" for parents and others wishing to challenge the accuracy or fairness of educational decisions, but eliminates all specifications for assuring such safeguards.
A Justice Department summary of the contents also points out that "the requirement that all recipients of federal funding must conduct a self-evaluation has been deleted in the interest of reducing administrative burdens." In addition, notes the summary, federal agencies will be required to specify why they want information, and guidelines for its collection, before they may make requests of state and local agencies for reports.
A major change in Section 504 that would affect only postsecondary programs applies the legal precedent set in the Southeastern Community College v. Davis case to language on access for the handicapped to higher-education programs. In that case, the judge ruled that a deaf woman who sought to enter a nursing program at the school was not a "qualified handicapped person" because her impairment would prevent her from participating fully in the programs and requirements of the training.
The Justice Department proposal limits what colleges and other postsecondary programs must do to provide access. "The recipient [of federal funds]," the summary says, "is required to make modifications in order to enable a handicapped applicant to participate, but is not required to offer a program of a fundamentally different nature." The modifications may not "impose undue hardship or unreasonable cost" on the institution, the revision states.
The scale and complexity of the proposed changes is such that it will be some time before school officials can make an assessment of their impact on current practices and procedures in school systems. And further modifications to the proposal are possible as the political and public-comment processes continue.
But formal reactions have already begun in Congress and among the various national advocacy groups for the handicapped.
In a letter sent to President Reagan this month, Robert Funk, executive director of the Disability Rights Education and Defense Fund, and Reese Robrahn, of the American Coalition of Citizens with Disabilities, wrote that the Section 504 proposal would "drastically undermine the federal government's commitment to equal rights for disabled Americans in employment, education, health, social services, housing, and other programs and services that permit disabled persons in our society to lead productive and independent lives."
The letter was endorsed by 126 civil-rights groups and organizations representing the disabled.
In another letter sent to the White House, Republican and Democratic members of the House and Senate last month asked the President to continue support for P.L. 94-142 and its "support programs." The letter was circulated in the Congress by the chairmen of the House and Senate education subcommittees.
"While concern has been expressed regarding excessive federal regulations, it has been documented that many of the administrative burdens associated with the implementation of P.L. 94-142 are a result of state and local interpretations of the federal statute," a draft of that letter states.
It further states that the Education Department's proposed regulatory revisions would "seriously undermine the rights afforded handicapped children and their parents."
The Reagan Administration decided last year to review all federal regulations, including Section 504 and P.L. 94-142, in an effort to reduce the "economic and administrative burdens" placed on the states.
In August, following that decision, the Vice President's Task Force on Regulatory Relief targeted the Section 504 regulations for review. The following month, Secretary of Education Terrel H. Bell issued a list of 16 areas of the regulations covering P.L. 94-142 to be studied for revision.