Special-Education Guidelines Cause Confusion, Experts Say
State directors of special education are worried that new guidelines being developed by the Education Department to help them monitor schools' compliance with the Education for All Handicapped Children Act will only add to the legal complexity of overseeing the law's implementation.
Draft versions of some of the guidelines, which will eventually be contained in 16 separate manuals covering key provisions of the 1975 law, have been field-tested in monitoring programs in Delaware and Maryland; the new system has been completed in four other states--Kentucky, Louisiana, Minnesota, and South Carolina. All 50 states, Guam, the District of Columbia, American Samoa, Puerto Rico, and the trust territories are expected to be monitored by fiscal 1988.
But state special-education directors, who are responsible for ensuring that local schools comply with the law--often called the most complex and prescriptive of the federal education laws--say that in some instances the guidelines are more prescriptive than P.L. 94-142's own regulations. And they wonder whether they could thus be found out of compliance for failing to meet the manuals' standards.
But Patricia Guard, acting director of the department's office of special-education programs, said last week that no state will be found out of compliance for not following the standards set in the manuals, as long as each state meets the requirements as spelled out under P. L. 94-142.
The standards are "guidelines for the states to follow," she added.
The monitoring system, required under P.L. 94-142, is the government's primary means of ensuring states' compliance with the law. The federal special-education office began developing a revised monitoring process last year after its previous procedures were questioned by the House Subcommittee on Select Education. (See Education Week, April 10, 1985.)
The monitoring review involves on-site and records inspections by a team of investigators.
State directors say they are most concerned about the manual covering the "least-restrictive environment" provision of P.L. 94-142.
The provision and its accompanying regulations stipulate that each state must establish procedures that ensure, to the maximum extent appropriate, that handicapped children be educated with children who are not handicapped.
Under the law, a child can be removed from a regular-education classroom only when his or her handicap is so severe that, even with supplementary aids, the child could not learn.
In a recent letter to Madeleine Will, assistant secretary for the office of special education and rehabilitative services, Robert S. Black, director of the office of programs for the handicapped in the South Carolina Department of Education, said some of the new manuals’ “interpretations and standards seem to conflict with other elements of law and regulations.”
As an example, Mr. Black used the concept of "portability," a term used in special-education law to describe a school district's responsibility to provide the necessary supplementary aids and services to help a handicapped child learn in a regular classroom. The issue of portability has been the subject of a number of court cases.
Child's Individual Needs
The manual states that "children must be placed on the basis of individual needs and not as a result of the category of handicapping condition or the configuration" of the school district the child lives in.
It also states placements for handicapped children cannot be made "on the basis of availability of related services."
Mr. Black and others contend that the manual's wording is much more specific than the wording of the federal law, which states that removal of handicapped children from regular classrooms can occur only when "the nature or severity of the handicapped child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
Mr. Black said in the letter that if the provision were implemented in accordance with the standards outlined in the new manual it would cost his state $182 million and would force South Carolina to withdraw from participation in P.L. 94-142.
"The issue seems to be a matter of degree," he said.
Legal Status Questioned
The central question, according to William Schipper, executive director of the National Association of State Directors of Special Education, is whether the manual has any legal status. "Is it a philosophical document or is it a legal document?" he asked.
P. L. 94-142 had two purposes, according to Mr. Schipper. "One is access to education, and happily, we've achieved that. The second purpose is integration into the mainstream. And the federal government is now trying to fully achieve that through the manuals."
Ms. Guard acknowledged that a number of states have expressed concern about the least-restrictive-environment manual and said the department is working with the states to clarify its wording.
The requirements stated in the manual are taken "directly out of the regulation, but there may be a variety of ways to meet those requirements," she said. "In order for us to tell states what we believe is a reasonable method for meeting the requirement, we have developed standards. However, a state would not be found out of compliance if it met the requirements, but didn't follow the exact steps in the manuals."
If a state is found out of compliance, the special-education office can cut off its federal funding. The office, however, has never exercised its authority to do so.
Ms. Guard said that in the new monitoring process investigators have found students in separate facilities with handicapping conditions identical to those of other students in integrated environments. One of the goals of the monitoring effort, she added, is to identify those children who should not be in separate facilities.
Vol. 05, Issue 01, Page 9