Delay of Rules Leaves Schools in Doubt on IDEA

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Nearly two years in the making, and almost one year behind schedule, the final regulations for the amended Individuals with Disabilities Education Act are now scheduled to be unveiled by the Department of Education by March 18.

The latest of many delays came last week, when the department canceled a planned March 5 release. The final document is intended to shut the door on the arduous process of amending one of the nation's most debated and emotionally charged education laws, an effort that began four years ago.

But even publication of the rules appears unlikely to end the substantive and procedural questions surrounding the IDEA.

For many educators and lawmakers, the Education Department's delay in issuing the final rules represents another sign of what they see as unresponsiveness to the day-to-day needs of schools. Others suggest it points up overregulation in a law that has repeatedly riled school officials and members of Congress, who say it is too prescriptive and an underfunded mandate.

"It is laughable that an administration that wants to talk about accountability is a year late with regs," Bruce Hunter, the senior associate executive director of the American Association of School Administrators, said in a reference to school accountability measures recently proposed by President Clinton. The AASA and other groups charge that the department's office of special education and rehabilitative services, known as OSERS, has repeatedly ignored their concerns and questions.

In overhauling the now 24-year-old special education law--which guarantees a "free, appropriate" education to students with disabilities--the 1997 amendments placed an even greater focus than before on inclusion. The provisions require districts and states to include disabled students not only in the classroom, but also in the regular curriculum and assessments to the greatest extent possible. Once the law was amended, department officials got down to writing the regulations that would clarify its details.

"It's been a process that's been very puzzling to everyone," Jay Diskey, a spokesman for Republicans on the House Education and the Workforce Committee, said of the rule-making effort. Rep. Bill Goodling, the Pennsylvania Republican who chairs the committee, has repeatedly pressed the department for details on the regulatory process over the past year.

Education Department officials insist that the additional time was needed to review the unprecedented number of comments they received on the proposed rules they unveiled in November 1997.

Federal officials also traveled to different parts of the country to get advice from local educators and parents.

"It always seems the wheels of bureaucracy grind slowly," acting Deputy Secretary of Education Marshall S. Smith said. "What they're doing is allowing as much opportunity as possible for citizen participation. Being responsible, you respond to every [comment]."

"We really tried to go out in this country and get comments from all parts of the country. ... We have tried to deal conscientiously with 6,000 comments, and it's taken longer than I would have liked," Secretary of Education Richard W. Riley said during a query about the process at a House hearing Feb. 11.

Last week, OSERS officials held a teleconference to promote and better explain the changes made in the 1997 IDEA amendments. Both Judith E. Heumann, the assistant secretary for OSERS, and Thomas Hehir, the director of the office of special education programs, declined requests for an interview on the IDEA regulatory process. During the teleconference, Ms. Heumann said: "All those comments were taken seriously. You will see [the rules] reflect the input of those who commented."

Education Department officials also maintain that the law can be followed without the regulations because the significant changes were written in the law.

Paul Marchand, the governmental-affairs director for the ARC, a leading disability-rights group that focuses on the mentally retarded, said the Education Department "overpromised last year--they set a timetable that I call 'warped speed.' "

But while many groups say they appreciate the department's listening to their concerns about the proposed regulations, they term the one-year delay inexcusable.

"It was a governmental error to wait this long--this program is too big, it's too important, it touches too many lives," said Michael Resnick, the government-relations director for the National School Boards Association.

The department's original deadline for interested parties to submit written comments on its proposed regulations was Jan. 20 of last year, at which time federal officials estimated they had received 4,500 comments. Now, some observers are questioning statements by Mr. Riley and other federal officials that the department has had to contend with 6,000 comments.

1997 Compromise

The process of issuing regulations, which further interpret and define a new or recently reauthorized law passed by Congress, rarely generates the same attention as the passage of a law.

But the IDEA process has proved to be an exceptional undertaking, from the emotions surrounding its reauthorization to the release of the final rules. It highlights the decades-old struggle between schools and disability-rights advocates on the degree of schools' responsibility to educate disabled students.

Even before the regulations became an issue, the IDEA amendment process itself turned into a lesson in compromise. In the spring of 1997, two years after the IDEA expired and with dozens of issues waiting to be resolved, representatives from all factions met for weeks in closed-door sessions on Capitol Hill to hammer out amendment language that watered down many earlier proposals, including calls to allow educators more power to expel disabled students for disciplinary reasons. ("IDEA Reauthorization: Key Provisions," May 21, 1997.)

Shortly after the amended law was signed by President Clinton in June 1997, some conservative Republicans in Congress issued new threats to further revise the law's discipline provisions.

Last April, the House Education and the Workforce Committee and the Senate Labor and Human Resources Committee held a joint hearing in which several members accused the Education Department of overstepping its authority by proposing rules that rewrote or misinterpreted provisions of the IDEA.

Because of those criticisms, many observers speculate that department officials grew wary of releasing the regulations, knowing that they were certain to face criticism.

Mr. Riley has also said that the review process at the Office of Management and Budget, the White House agency that reviews all federal regulations before they are released, took much longer than anticipated. According to the OMB, the IDEA rules were submitted to the White House agency on Nov. 27 of last year and, since then, OMB and Education Department officials have been engaged in a question-and-answer process to further iron out legal details.

But another part of the problem, some education groups contend, is that OSERS officials have taken on a too-militant role as advocates for students with disabilities.

"There has been too much of a 'we-they' mentality around this program. On some of these issues, where common ground could have been found, they've drawn lines in the sand," Mr. Resnick said. The NSBA has repeatedly butted heads with disability-rights advocates over its calls to strengthen administrators' authority to suspend or expel special education students.

"One would hope the department is on the side of the children," Mr. Marchand of the ARC said in response. "If the school districts feel the Education Department's job is to serve them and not the children, I would have a problem with that."

The lack of final regulations has created a public relations headache for Ms. Heumann of OSERS, who is often the target of education groups' anger.

Ms. Heumann, a leading disability-rights advocate before joining the department in 1993, and other OSERS officials have refused for weeks to answer questions on the release of the rules.

"They talk more than they listen," asserted Benny Gooden, the superintendent of the 12,500-student Fort Smith, Ark., district. The discipline amendments, for instance, are "an inherent problem that creates confusion, frustration, and anger," he said.

Local Frustrations

The delay in the rules has been frustrating for state and local administrators.

Myrna Mandlawitz, the director of government relations for the National Association of State Directors of Special Education, said the directors have been unable to update state codes on special education and to answer districts' IDEA-related questions in such areas as discipline, regular teachers' roles in crafting the individualized education plans required for special education students, and assessments for students with disabilities.

"These things were supposed to be implemented already," she said.

Mr. Hehir said during last week's teleconference that many of the questions had centered on the regular education teacher's role in the IEP process.

Mr. Gooden said his district was still using the rules that were in place before the law was amended in 1997.

In an interview last month, Rep. Michael N. Castle, the Delaware Republican who chairs the House subcommittee on K-12 education, said Republicans are worried about the implementation of all aspects of the IDEA, including federal spending, regulation, and the administrative burden on schools. Many lawmakers also believe the law will need to be further revised.

Mr. Castle and several other members of Congress have said in recent weeks that the IDEA is becoming a top complaint for educators in their home districts.

"We fear there are some terrible decisions being made in IDEA," Mr. Castle said. "We're starting to hear enough about it that we're becoming increasingly concerned."

Vol. 18, Issue 26, Pages 1, 23

Published in Print: March 10, 1999, as Delay of Rules Leaves Schools in Doubt on IDEA
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