October 15, 2008
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Advocacy Issue Brief: Individuals with Disabilities Education Act


March 2002

The Issue

The Individuals with Disabilities Act (IDEA) was originally enacted in 1975 due to the fact that children with disabilities often failed to receive an education or often received an inappropriate education. IDEA mandates the provision of a free, appropriate public education for children with disabilities and provides for federal funding to assist states and localities in meeting this goal. The legislation was reauthorized in 1997 and expires on September 30, 2002.

An examination of the legislative history and the original act indicates that there were four main reasons advanced for its enactment. These reasons were:

  1. an increased awareness of the needs of children with disabilities;

  2. judicial decisions that found constitutional requirements for the education of children with disabilities;

  3. the inability of states and localities to fund education for children with disabilities; and

  4. the theory that educating children with disabilities will result in these children becoming more productive members of society and thus lessening the burden on taxpayers to support nonproductive persons.

In 1997, Congress amended IDEA. In May 1997, the House and Senate simultaneously passed legislation to reauthorize IDEA. This legislation had not been revised since its original enactment in 1975. President Clinton signed the bill into law on June 4, 1997.

Although provisions have been added or amended in order to expand the quality of the services to younger groups of children with disabilities, or to improve the quality of the services provided under the law, the four purposes of IDEA have remained essentially the same: "to ensure that children with disabilities have available to them a free, appropriate public education that emphasizes special education and related services designed to meet their particular needs; to ensure that the rights of children with disabilities and their parents or guardians are protected; to assist states and localities to provide for the education of all children with disabilities; and to assess and ensure the effectiveness of efforts to educate children with disabilities."

The IDEA statute is comprised of four parts, including Part A General Provisions section, Part B Grants to States Program, Part C Infants and Toddlers Program, and Part D Support Programs. Part A must be revised to reflect new provisions, definitions, and requirements for prescribing regulations. Parts C and D must be periodically reviewed and reauthorized by Congress to ensure continuation of the activities included in these parts. However, Part B Grants to States Program is permanently authorized. Thus only Parts C and D of IDEA are subject to reauthorization in 2002. However, IDEA may be subject to a one-year extension.

The Facts

Overview

  • The number of children with disabilities receiving special education and related services has steadily grown since passage of the Education for All Handicapped Children Act in 1975. In the past decade, the number of students served grew 21 percent, from 4,761,000 in 1990-1991 to 6,055,000 in 1999-2000. This represents approximately 14 percent of public school enrollment.

  • The growth in the number of children with disabilities exceeded the growth in both the resident population and school enrollment. For this same period, growth in the United States resident population of children ages 6 through 21 was 9.7 percent (from 56,688,000 to 62,204,713). School enrollment grew 14.1 percent, from 40,608,342 to 46,349,803.

  • The increase in students served varies by disability category, with the largest increase occurring among students with other health impairments. Orthopedic impairments, traumatic brain injury, and autism have shown the greatest increase among the low-incidence disabilities. Reasons for the continued increase in students served include better diagnosis and identification. Reclassification of students in the newer disability categories accounts for large increases in those categories.

Preschool

  • Special education services to preschoolers increased as they got older. Of the preschoolers who received services in 1998-99, 20.5 percent (117,698) were three years old, 34.9 percent (199,924) were 4 years old, and 44.6 percent (256,015) were five years old. A goal of the U.S. Department of Education FY 2000 Annual Plan was to identify and provide services to children with disabilities at an earlier age (U.S. Department of Education, 1999). Between 1992-93 and 1998-99, the percentage of three-year-olds receiving services grew 33.2 percent, and the percentage of four-year-olds receiving services increased 31.8 percent. The percentage of five-year-olds receiving services increased at a slower rate of 18.8 percent. The 1998-99 state-reported data suggest that greater numbers of younger children were being identified and provided services.

  • Between 1989-90 and 1998-99, the total number of preschoolers served under IDEA increased 48.8 percent.

  • The data reported by the states for 1998-99 indicated that the racial/ethnic distribution of the general preschool population versus the special education preschool population was, on average, generally comparable. Hispanic and Asian preschool children were slightly underrepresented in the special education preschool population. Conversely, the data indicated that white, non-Hispanic children were somewhat overrepresented among preschoolers receiving special education and related services.

  • Among the preschoolers who did not receive services in a regular public school setting, a public separate facility was the most common setting for the provision of special education and related services. These students represented 3.8 percent (20,257) of the preschool children receiving IDEA services during 1997-98.

  • Over the past 10 years, the regular classroom has been the most common service setting for preschool children with disabilities. The U.S. Department of Education (1999) indicated in its FY 2000 annual plan that increasing inclusion of children with disabilities in regular classroom settings was an important objective in the improvement of special education. The use of the regular classroom has gradually increased from 42.2 percent in 1988-89 to 52.5 percent in 1997-98.

  • In the 1990s, the number of preschool children receiving special education and related services grew each year. State-reported data indicated that over the past seven years, the number of 3- and 4-year-old children being identified and provided services grew at a much faster rate than did the number of 5-year-old children, indicating that children with disabilities were being identified and provided services at an earlier age.

Racial/Ethnicity

  • Race/ethnicity data, reported for the first time in 1998-99, suggest that minority enrollment in special education was similar to the resident population of 3- through 5-year-olds. Asian and Hispanic children were slightly underrepresented among preschoolers in special education, while white (non-Hispanic) children were somewhat overrepresented.

  • Comparisons of the racial/ethnic distribution of students in special education with the general student population reveal that Asian students and white students were under-represented in the special education population, while black students were over-represented. American Indian students were also overrepresented. Hispanic students ages 6 through 21 were generally represented among the special education population at a rate comparable to the resident population. These relationships varied by category.

  • The race/ethnicity distribution of the population of students served under IDEA and the general population of students ages 6 through 21 showed some disparities:

  • Asian/Pacific Islander students represent 3.8 percent of the general population. Among students receiving special education services in all disability categories, Asian/Pacific Islander students represent only 1.7 percent of the population. This percentage varies by individual disabilities; in the areas of hearing impairments (4.6 percent), autism (4.7 percent), and deaf-blindness (11.3 percent), the representation of Asian/Pacific Islander students is greater than their representation in the resident population.

  • Black (non-Hispanic) students account for 14.8 percent of the general population for the 6 through 21 age group, compared with 20.2 percent of the special education population in all disabilities. In fact, in 10 of the 13 disability categories, the percentage of the special education population composed of black students equaled or exceeded the resident population percentage. Black students' representation in the mental retardation and developmental delay categories was more than twice their national population estimates.

  • Representation of Hispanic students in special education (13.2 percent) was generally similar to the percentages in the general population (14.2 percent). However, Hispanic students exceeded the resident population percentages in three categories: specific learning disabilities (15.8 percent), hearing impairments (16.3 percent), and orthopedic impairments (14.4 percent).

  • American Indian students represent 1.0 percent of the general population and 1.3 percent of special education students. American Indian students slightly exceeded the national average in nine disability categories, reaching the largest percentages in the categories of deaf-blindness (1.8 percent) and traumatic brain injury (TBI) (1.6 percent).

  • Overall, white (non-Hispanic) students made up a smaller percentage (63.6 percent) of the special education students than the general population (66.2 percent). However, their representation was higher than the national population estimates in five disability categories: speech and language impairments (68.3 percent), orthopedic impairments (67.2 percent), other health impairments (75.8 percent), visual impairments (69.5 percent), and TBI (70.2 percent).

  • Previous research indicates that students in special education have different demographic characteristics from school-aged children overall. Students with disabilities are more likely than other students to be black, from low-income families, and from families whose parents have less formal education.

Gender

  • The gender distributions of children with one disability and two or more co-occurring disabilities were quite similar. Of children with one disability, 67 percent were male, and 33 percent were female. This is compatible with previous research that showed that males comprise slightly over two-thirds of special education students of children with co-occurring disabilities, 68 percent were male, and 32 percent were female.

NSBA's Goals for the IDEA Reauthorization

In reauthorizing the Individuals with Disabilities Education Act (IDEA), Congress should strengthen its support for local school districts in educating the nation's children who have disabilities. The educational programs should be offered in the least restrictive environment and through a continuum of appropriate placements. Therefore, NSBA urges Congress to take the following actions:

  • Fully fund the federal share of IDEA through a change in the federal funding mechanism from discretionary appropriations to mandatory funding that would earmark revenues for the program and not make it subject to fluctuating annual appropriations and modify current language relating to local school district authority to supplant funds;

  • Conduct oversight hearings and authorize studies to determine the costs that school districts are incurring to implement the 1997 amendments;

  • Address operational difficulties that school districts face in complying with the law while ensuring appropriate safeguards for the rights of the disabled children, and when appropriate, provide for a system of waivers and special agreements to address unique circumstances, where appropriate;

  • Address operational difficulties and fiscal responsibilities related to health-related services, dispute resolution proceedings, the administrative hearing, compensatory damages, punitive damages and attorney fees, and other related costs;

  • Authorize local school districts through increased flexibility to provide safer learning environments for all children and eliminate the current dual discipline system that results in different sanctions for different classification of students; and

  • Conduct a review of the current administrative requirements; and eliminate requirements that are unnecessary or burdensome.

NSBA's Priorities for the IDEA Reauthorization

  • Fully Fund the Federal Share of IDEA
    With the increased appropriations for FY 2002, the federal government is only contributing 17 percent of the costs–even though more than 25 years ago, it committed to paying 40 percent. This means that our local school districts are being short-changed $10.5 billion in FY 2002, and more than $300 billion since the law was created.

    To meet the increasing demand, and to provide local schools and taxpayers relief, funding for this program must be mandatory at the federal level (as it is at the local level). That is, federal funding should be automatic and set at a commitment level (e.g., what is done with multi-year defense contracts). This would ensure that federal revenues would be set aside to meet the cost of the program. By contrast, funding for this program currently comes from the discretionary side of the budget and, as such, is subject to the annual decisions and trade-offs of federal lawmakers. By funding the program as a mandatory federal expense, IDEA funding levels would be set and would not be subject to the political pressures of discretionary funding, which result in continual under-funding of IDEA.

  • Transfer Financial Responsibility for Non-education "Related Services" to Service Providers outside School Districts
    Currently, local school districts are responsible for the costs of "related services." Many of these services are far beyond what we normally expect to be provided by our local school districts. Further, many of these services are related to "life skills" rather than academic skills. Of significance to local school districts is the report from the literature that "related services" has become one of the most expensive and fastest growing areas of expenditures in addressing the needs of students with disabilities.

    Although NSBA does not question the needs for such services for students, we do question why the local school budgets–already under-funded–should have to pay for these non-education services, given the demand and cost of such services. We want legislation that transfers the financial responsibilities for non-education "related services" from local school districts to the service providers who are outside the local school district.

  • Related to Due Process, Hearings, and Litigation by Capping the Local School District Portion of Plaintiff Attorneys' Fees
    Local school districts want to reduce the costs associated with due process, mediation, and litigation, and one way to do this is by capping the local school district's portion of plaintiff attorneys' fees. NSBA understands the complexity in determining appropriate attorneys' fees. However, we believe that the reauthorized IDEA should provide safeguards for local school districts through caps on the school district portion of the plaintiff attorneys' fees. We do not believe that capping the school district's portion will reduce the availability of highly qualified competent lawyers. Rather, we believe that capping attorneys' fees will encourage more timely resolution of disagreements between parents and local school districts on education services.

    We know that plaintiff attorneys' fees can range up to 30 percent or more of the cost of the services. However, the real barrier for local school districts is that these excessive fees reduce the available funds that should be directed to education services for all children. Additionally, the potential cost of litigation often creates a situation where school personnel find themselves responding to the threat of litigation costs rather than the real needs of the student. This should not be!

    By reducing the costs, school districts could use the savings to support education services for all students, and staff could focus on student achievement rather than litigation threats.

  • Create Safe Learning Environments by Not Requiring Local School Districts to Operate Dual Discipline Systems
    Creating a safe learning environment is critical to improving academic performance. We know that when students are not in what they perceive to be a safe environment they cannot focus on their work. They are easily distracted, and they sometimes question their own self worth.

    NSBA seeks authority for local school districts to discipline students with disabilities the same as students without disabilities. Simply stated, if two students bring a gun or dangerous weapon to school–should we have to follow separate discipline systems because one student has a disability and the other student does not have a disability?

    Additionally, local school districts need to have a single and clear message about weapons and explosives in schools. Superintendents and principals should have the authority without interference from the federal government.

    We recognize that local school districts do have some options, but not without difficulty, and in no case could disabled students be expelled. Local school districts should not have to pay for additional alternative education settings for students whose behavior warrants expulsion.

    Having a disability should not be an exemption from school district discipline policies. When students with disabilities are involved in actions that threaten the safety for all children, they should be afforded alternative programs for education services OUTSIDE the public school system as we do with adult education and education for students who are incarcerated. The rights of victims of dangerous behavior and the safety of innocent students must be protected as well. In a time of increasing bombings and shootings and threats to our local schools, we believe local school districts should have the authority without federal interference.

NSBA Position

NSBA encourages Congress in its reauthorization of IDEA to build on those provisions that strengthen the capacity of local school districts to provide academic rigor and education services for all students. Current requirements and mandates that restrict local school district flexibility in the delivery of education services, result in overly burdensome administrative processes, and costly litigation must be eliminated in this reauthorization.


 
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