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Congress Voices Disapproval of E.D.'s Special-Education Rules

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Washington--House and Senate education committee members last week sharply criticized the Reagan Administration's proposed changes in regulations governing programs for handicapped schoolchildren, and both chambers set legislative actions in motion that signaled their displeasure.

Senators, by a vote of 93 to 4, approved an amendment to the 1982 supplemental appropriations bill that would postpone the effective date of the new regulations until the Congress has had sufficient time to review them--probably not until next year.

House Bill Introduced

And in the House, a group of 38 Republicans and Democrats introduced a bill urging the Administration simply to drop the proposed revisions to the regulations of the Education for All Handicapped Children Act of 1975 (P.L. 94-142).

If the Administration does not do so, the House resolution, which is not yet scheduled for a vote, calls for a legislative veto of the regulations--a right reserved to the Congress under the General Education Provisions Act.

The Congressional moves came only a week after Secretary of Education Terrel H. Bell unveiled the proposed regulations--launching a three-month comment period that ends Nov. 2--and hours after he appeared before the Senate Subcommittee on the Handicapped to defend the Administration's proposal.

The final version of the revisions as outlined by Secretary Bell generally follows the deregulatory thrust education officials have consistently argued for (see Education Week, Feb. 24, 1982). One significant new provision that was not in earlier drafts of the revisions would allow school officials to apply "normal disciplinary standards" to handicapped students when disruptive behavior is not caused by a "handicapping condition."

That new language prompted immediate and differing reactions from major education groups. A spokesman for the National School Boards Association, which has been enthusiastic about cutting back the complex rules governing the handicapped-students' law, said the group was especially pleased by the new discipline rule.

Circumvent Requirement

The Council for Exceptional Children and the National Association of Elementary School Principals expressed concern that the looser rule might permit states and districts to circumvent the 1975 law's requirement that handicapped children remain in regular classrooms to the fullest extent possible.

In its own analysis of the major revisions, the Education Department has noted that parents and advocacy groups would be concerned by the provision on discipline and due process because it "may increase the number of expulsions or suspensions of handicapped children who have been inappropriately placed." The impact analysis also points to the "potential difficulties in determining the causal relationship between misconduct and a handicapping condition."

During last week's hearing, Senator Lowell P. Weicker Jr., Republican of Connecticut, who chairs the Subcommittee on the Handicapped, questioned the proposed regulatory changes and accused the Administration of attempting "to do by regulation what it has been unable to do in the Congress: to eliminate our nation's system of special education."

"We've been promised legislation repealing portions of the act ... and we have rejected every single one of these proposals," Senator Weicker said.

"Now we are being told that the same people who asked us to decimate the law and to slash the funding are selling a regulatory rewrite as an improvement for the disabled."

'Overly Prescriptive'

In his testimony, Secretary Bell reiterated the Administration's position that the current regulations are "overly prescriptive, intrusive, and burdensome" on the states. He said the proposed regulations would curtail unnecessary paperwork without jeopardizing the rights of the handicapped.

Secretary Bell denied Senator Weicker's charges that the Administration would attempt to issue final regulations while the Congress is in recess.

"No one is up to any hanky-panky with these regulations," Mr. Bell countered. "We may have a dis-agreement about them but we're not up to any skullduggery on these regulations."

Although President Reagan may veto the appropriations bill, an aide to Senator Weicker, who introduced the amendment to postpone the effective date of the regulations, said there is enough support in the Congress to reject the regulations through a legislative veto.

Other major revisions in the proposed regulations are as follows:

Definition of Related Services. Under the proposed rules, the definition would be narrowed and individual services, such as parental counseling, social-work services, and school health services, would be eliminated. In addition, school districts could establish "reasonable limitations" when determining whether a service is required and when developing an individual education program.

In its analysis of the proposal, the department noted that the changes "may result in increased due-process hearings and litigation due to disagreements between parents and the school regarding the establishment of these limitations."

Least Restrictive Environment. The proposed regulations delete provisions requiring children to be placed in programs close to their homes. Also eliminated is the provision that school districts provide "a continuum of alternative placements" and that handicapped children participate with nonhandicapped children in extracurricular activities and in nonacademic set-tings. Added to the regulations is the provision that school districts "may consider substantial and clearly ascertainable disruption of the educational services provided to other children in the same classes," when determining the appropriateness of placing a handicapped child in a regular classroom.

Disciplinary Rules and Procedures. The proposed regulations establish the circumstance in which a school district may use normal disciplinary measures.

"The requirement that the agency determine whether the misconduct was caused by the child's handicap should operate to minimize the likelihood of due-process challenges and litigation," according to the department's impact analysis.

Individualized Education Program (IEP). The department has proposed the elimination of a number of provisions that establish timetables for developing an IEP

"This change may raise concerns that excessive delays will occur in arranging such meetings and in providing special education and related services in a timely manner," according to the impact analysis.

Procedural Safeguards. Provisions not specified by the law have been deleted, including the requirement that school officials conduct re-evaluations every three years; that the schools receive parental consent prior to initial placement of a student; and that schools make available, on request, information on free or low-cost legal services.

Specific Learning Disability (SLD). The new rules set criteria for determining if an SLD exists. They include a verified and severe discrepancy between a child's ability and academic achievement; and one or more serious and identifiable conditions. School officials would not be required to perform classroom observations.

State Plans. The proposed regulation would require state officials to submit program plans every three years instead of yearly. "Timelines'' for identification of a handicapped child and for developing the individual education program would be relaxed.

Application. The proposed changes eliminate the requirement that local education agencies, in applying for federal funds, submit statements of procedures and other descriptive policy information.

Use of Funds. The new rules eliminate the nonstatutory provision that prohibits states from supplanting certain funding categories. Districts would only be required to maintain the prior year's level of state funding within specific budget categories in order to comply.

During the hearing last week, Senator Robert T. Stafford, Republican of Vermont, said the proposed regulations are a "tremendous disappointment" because they "seriously erode the rights of handicapped children and their families." One of the primary sponsors of the 1975 legislation, the Senator said the revisions also "ignore an opportunity to remedy difficulties that educators are facing in providing a free, appropriate education to more than four million handicapped youngsters in this country."

Senator Stafford said that if the department does not withdraw the proposed regulation he "will strive to retain the rules that are now in force."

The Education Department has scheduled briefings and hearings on the proposed regulations in nine cities throughout the country.

The 60-day period for public comments before the regulations are published in final form in the Federal Register may be extended longer, depending on the wishes of the Congress.

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