The NAPSEC Washington Update

Click here to go to the IDEA Regulations Summary of Major Changes

The President released his 2009 budget on Monday. As expected he recommends freezing or cutting most domestic programs. The President’s recommendations, with explanations, from US Department of Education briefing:

The FY 2009 budget provides $24.5 billion for No Child Left Behind, a $127 million increase over 2008 levels, and a 41 percent increase since 2001.

A $406 million increase (up 63% since 2001) to ensure that high-poverty schools have the extra resources they need to help all students reach proficiency.

To support strong, effective state leadership in helping turn around low-performing schools and districts.

To maintain support for strong assessment systems, including high school assessments aligned with college and work-ready standards.

A $52 million increase to help create data systems to guide decision-making from kindergarten through college.

A $103 million increase to encourage our most experienced teachers to work in our neediest schools, and reward them for results.

The FY 2009 Budget restores Reading First funding because it is the largest, most effective reading program in our country's history. A $607 million increase to provide training for teachers based on decades of scientifically based research and restore funding to the previous level required to implement this program.

A $64.6 million increase to expand the development and implementation of research-based interventions to help teenage students who are reading below grade level.

When schools fall short of reaching goals for multiple years in a row, NCLB offers parents choices, such as free tutoring and school choice, to help ensure that their children are receiving a quality education.

To provide scholarships that enable low-income students who are currently enrolled in schools in restructuring or high school "dropout factories" to transfer to out-of-district public schools or local private schools. Scholarships would cover tuition, fees, transportation, and other costs.

To transform the low-performing 21^st Century Community Learning Centers program into a scholarship program enabling poor students in struggling schools to enroll in high-quality after-school and summer school programs. The President's American Competitiveness Initiative, along with other programs, focuses on math, science, and other high-level skills needed to succeed in today's economy.

To employ proven, research-based instructional methods—based in part on findings of the National Math Panel—to help ensure that all children can take and pass algebra and other advanced courses.

A $26 million increase to expand AP and IB offerings in math, science, and critical foreign languages.

To create opportunities for qualified professionals, especially those in math and science-related fields, to lend their expertise to the educational system.

To support partnerships with school districts for language learning from kindergarten through high school and into advanced language study at the postsecondary level.

Offering Extra Help for Students with Disabilities and Students Learning English

A signal achievement of No Child Left Behind was a new focus on the academic achievement of all students, including those with disabilities and those learning English as a second language.

A $337 million increase since 2001 to provide special education and other resources for students with disabilities. All other special education programs were level funded.

A $30 million increase to help meet the needs of the growing population of students with limited English skills.

The President's FY 2009 budget raises the Pell grant maximum award to its largest annual amount ever. The budget also provides support for programs that will help more students access and afford a college degree.

A 116% increase since 2001 to help nearly 5.8 million low-income students afford higher education. This amount would increase the maximum award to $4,800.

$16 million, including a $10 million increase to facilitate the transfer of credits between higher education institutions, reducing the amount of time and money spent by the nearly 60% of students who transfer.

To provide rigorous coursework and bridge services for adults who want to attend college but need extra help.

Ų Historically Black Colleges and Universities Capital Financing—$10.4 million

To support an additional $61 million in guaranteed loans for construction, reconstruction, and renovation.

Program (2008 Budget Authority in millions) The President recommends many of these programs for elimination each year, but they always survive!

At the Department briefing, Secretary Spellings started out by stating that there are so many other priorities for funding – war in Iraq, deficit, etc., and then said we can’t just worry about our little piece of the world! She did not stay long and left her staff to answer specific program questions. In past years, the Department has used the “accountability” issue to zero out or cut program funding. This year they used a whole new approach by stating that a program has “already achieved its purpose.” This argument was used to say that the Department initiated a program to get states to do something and now that the state is providing the program, the program is no longer necessary. Missing the whole reason for why the state is doing it – because they get money to do it!!!

Most of the President’s budget won’t get any play by Congress. This is his last year and it is already rumored that Congress may just pass a continuing resolution (CR) and wait for the new president and hopefully get someone who is more supportive. Also, based on his budget, it would be better to go with this year’s funding levels than to adopt his ’09 numbers, like was done last year. They will also avoid any veto threats by doing it this way.

The President is recommending a less than 1% increase for most programs outside Defense and Home Land Security, which will get a 5% increase. He again requested $70B for Iraq and Afghanistan.

The President delivered his State of the Union speech and discussed a few education issues. There isn’t any real support for any of these proposals, especially when there isn’t any new funding available. Any new dollars added would need to be taken from an existing education program.

• President proposed a program titled "Pell Grants for Kids", which is a $300 million effort to channel dollars to low income parents to help their children attend private or religious schools. Proponents believe that this program will provide new options for parents of children who attend underperforming schools. Opponents have stated that they view this proposal as a national voucher system and would only drain resources from public schools that in many cases are in need of the money.

• President called on Congress to fund $800 million for scholarships for 21 Century Leaning Opportunities. These scholarships will give parents the opportunity to enroll their children in high quality after school and summer school programs aimed at increasing student achievement, including programs run by faith based and community organizations.

• President proposed increasing resources for School Improvement Grants, which support implementation of troubled schools' improvement plans.

• President proposed increasing funding for the Teacher Incentive Fund to reward teachers who successfully raise student achievement in low income schools.

As you know, there are two proposed rules by the Center for Medicaid and Medicare Services that are causing problems for us. 1.) Federal Medicaid payments would no longer be available for administrative activities performed by school employees or contractors, or anyone under the control of a public or private educational institution, and transportation from home to school and back for school-aged children. The final rule would not affect the treatment of expenditures for direct medical services that are included in the approved State Medicaid plan and provided in schools, nor does it affect transportation of school-aged children from school or home to a non-school-based direct medical service provider that bills under the Medicaid program, or from the non-school-based provider to school or home. Under the final rule, CMS would continue to reimburse States for:

Ų Transportation costs related to school-aged children from school or home to a non-school-based direct medical service provider that bills under the Medicaid program and from the non-school-based provider to school or home;

Ų Transportation costs related to children who are not yet school-age and are being transported from home to

another location, including a school, and back to receive direct medical services, as long as the visit does not include

an educational component or any activity unrelated to the covered direct medical service;

Ų Administrative overhead costs that are integral to, or an extension of, a direct medical service and, as such, are claimed as medical assistance. These activities are properly reimbursed at the applicable Federal Medical Assistance Percentage (FMAP) rate for the related direct medical service, and include patient follow-up, assessment, counseling, education, parent consultations, and billing activities;

Ų School-based administrative activities, such as Medicaid outreach and eligibility intake, that are conducted by employees of the State or local Medicaid agency.

Congress passed a 6 month moratorium on the transportation and administration reimbursement rule at the end of the last session. This would keep the rule from taking affect until June 30, and impacting the 2007-2008 school year.

The rule does not affect the ability of States to submit claims for costs occurred prior to the effective date of the rule. Since the date was extended until June 30 (if the moratorium is not extended) there would be 60 days once the moratorium ends for the rule to take affect. This is because once Final Rules are published in the Federal Register, there is 60 days for the rule to take affect. In this case, the moratorium date would serve as the Final Rule. This means that the rule will technically take affect on September 1^st. CMS did not intend for States and schools to be in compliance with the final rule prior to the start of the 2008-2009 school year, so the moratorium didn’t really affect that time line.

“With respect to claims for prior periods, all such claims must meet the timeliness requirements specified at 45 Code of Federal Regulations (CFR). In addition, Section 1132(a) of the Social Security Act requires that a claim for federal financial participation (FFP) must be filed within a two-year period that begins on the first day of the calendar quarter immediately following the quarter in which the expenditure was made. The implementing regulations for timely filing are at 45 CFR, Subpart A and provide specific guidelines for determining when an expenditure is said to have been made, so as to initiate the two-year period.”

I am working with a group of education advocates to extend this indefinitely or seek funds to compensate states for the loss of funding. According the Congressional Budget Office (CBO), the moratorium has zero impact on the federal budget and not just this year but through at least 2017.

The following is a recent Washington Post article on the impact this rule will have on cities and states.

Educators nationwide are protesting a Bush administration move to curtail hundreds of millions of dollars In Medicaid funding for disabled students that could force some schools already in budget straits to trim health services or cut back instructional programs.

The shift in federal reimbursement policy threatens to strip about $635 million from schools in the next academic year and $3.6 billion over five years, with Washington area schools in line to lose millions of dollars. The rule, to take effect in June unless Congress intervenes, will bar schools from billing Medicaid for busing special education students to and from school and for certain administrative expenses, including enrolling children In Medicaid and coordinating and scheduling services.

Administration officials said schools, required under federal law to provide education to children with special needs, should pick up the bill for expenses that are part of their "educational mission." But educators said it would further strain schools in a time of lean budgets, hitting big city and poor rural systems hardest.

D.C. schools would lose about $5 million in the first year in busing reimbursement, according to a spokeswoman for Mayor Adrian M. Fenty (D). Virginia has recouped $31 million in Medicaid dollars over the past five years for services that would no longer be covered, with Fairfax County schools alone projecting a $1.8 million loss next year. That's the equivalent of employing 25 teachers. The county's schools this year face a range of budget cuts that would pare back summer school and raise average class size.

Maryland school officials estimate that nearly $1 million in federal funding would dry up statewide next year under the rule, with the greatest impact in Baltimore, which recouped about $593,000 in one recent year, and Prince George's County, which was reimbursed $106,000.

Educators in states including California, Mississippi and North Carolina wrote the government to protest the rule. Officials of some schools said absorbing such expenses could mean dipping into general education programs or cutting back on school nurses or counselors. In one letter, Virginia state Superintendent Billy K. Cannaday Jr. said school systems will continue to help enroll children in Medicaid and coordinate services but will have to "shift funds from other areas in their budgets to cover the costs or raise taxes if this proposal becomes a reality."

The Centers for Medicare and Medicaid Services proposed the rule in September, and it was made final in December. But Congressional Democrats slipped a six-month moratorium into legislation passed before the end of the year.

Dennis G. Smith, director of the federal Center for Medicaid and State Operations, said the change will help reign in a system in which federal auditors have found improper billing in some states. He emphasized that schools will still be reimbursed for direct medical services, such as physical or speech therapy, as well as for transporting children to a doctor's office or therapy session if it is scheduled off campus during the school day.

This is not about medically necessary services Smith said. "We will continue to pay for those types of services. Medicaid was being used simply to leverage revenues for activities that had very little to do with serving children on Medicaid. Schools already have responsibility to transport all children, not just Medicaid children, to school. That should not be billed to Medicaid."

Health advocates and Democratic lawmakers criticized the change as a rash shift that ultimately could result in fewer needy children connecting with health services. "This is a huge change in law," said Sara Rosenbaum, chairman of the Department of Health Policy at the George Washington University School of Public Health and Health Services. "This could have an impact on the number of children enrolled in the program and the number of children who are assisted in getting health care. Whatever concerns there were about schools administering Medicaid - are totally outweighed by what the administration has done here."

Rep. John D. Dingell (Mich.), the senior Democrat in the House, called on the administration to "reconsider this misguided rule and start working with Congress to better serve and support America's most vulnerable children." Dingell and other lawmakers have introduced a bill to reverse the rule, requiring Medicaid to cover certain administrative costs for schools and the cost of transporting children with disabilities who go to school in specially equipped or staffed buses.

P.J. Maddox, chairman of the Department of Health Administration and Policy at George Mason University, said the conflict highlights the challenge schools face with the growing cost of educating children with disabilities. Federal law requires schools to provide services to disabled students, but the federal government gives schools only a portion of the money needed to cover extra costs. Schools, she said, have turned to Medicaid to help offset expenses. "This Medicaid change cuts off that help, which leaves the school system holding the bag," Maddox said. "Who pays for it? The school system will have to pay for it."

Medicaid officials contended, in their written response to public comments on the rule, that cash-strapped schools have a "strong incentive to shift costs to Medicaid for activities that would have been performed by schools in the normal course of their operation" and that schools should find other sources for money. In recent years, reports from the inspector general of the Department of Health and Human Services have found that schools inappropriately sought reimbursement for school administrators' salaries, capital costs and even such items as antacids and lice combs.

Educators acknowledged some problems with billing but said Medicaid should tighten rules and offer more guidance, not simply cut off the dollars. Maryland officials are concerned about the fallout for Baltimore and Prince George's schools. "It's a lot of impact on the two jurisdictions that have the largest numbers of the neediest children," said Carol Ann Baglin, an assistant state superintendent in Maryland. "They are going to have to take funds from somewhere else in a very tight fiscal time and put them into transportation."

Late last month, Los Angeles school officials went to Capitol Hill to lobby against the rule, saying their school system, the nation's second largest, could lose $10 million a year In reimbursement. John DiCecco, director of the system's community partners and Medi-Cal programs, said he expects to lay off 10 outreach workers who have helped enroll thousands of children in Medicaid. DiCecco said the system also uses Medicaid funds to encourage nonprofit and community groups to donate to help the schools run health clinics and offer vision and dental screenings. "There's no question if this goes away, at least in Los Angeles, the health status of children will directly suffer," DiCecco said.

2.) Case Management - Federal Medicaid payments would no longer be available for case management. Senator Colemen (R-MN) has presented bill language for a moratorium on the caseworker rule until March of 2009. I am working with the disability community on this and have talked with the Senator’s staffer to see what we can do to help out. I will keep you updated.

Case management consists of services which help beneficiaries gain access to needed medical, social, educational, and other services. "Targeted" case management services are those aimed specifically at special groups of enrollees such as those with developmental disabilities or chronic mental illness.

CMS stated in their ruling: Widespread improper billing by states of the Medicaid program for services mandated by other programs helped prompt Congress to address the problem in the Deficit Reduction Act (RDA), which redefined the scope of allowable case management services, strengthened state accountability, and required that CMS issue regulations.

Many accounts of inappropriate Medicaid billing of TCM services have been documented by the Government Accountability Office (GAO). In one investigation of TCM claims, GAO found that inappropriate billing to Medicaid generated an estimated $12 million in extra federal funds to Georgia and $68 million in extra federal funds to Massachusetts from 2000-2004.

· Reiterates the definitions of case management and targeted case management services contained in sections 1905(a)(19) and 1915(g) of the Social Security Act; and

· Ensures that case management services will be comprehensive and coordinated, and will include an assessment of an eligible individual; development of a specific care plan; referral to services; and monitoring and follow-up activities.

Specifies and provides examples of excluded activities. The IFC excludes from the definition of case management services, activities that:

· include the direct delivery of an underlying medical, educational, social, or other service to which an eligible individual has been referred;

· constitute the administration of another non-medical program such as guardianship, child welfare or child protective services, parole and probation functions, legal services, and special education (except case management included in an individualized education plan or individualized family services plan); and

Defines the term "targeted case management services" as case management services that can be furnished to an individual, not necessarily to all persons eligible for TCM services

· states may "target" case management services to specific classes of individuals, or to individuals who reside in specified areas of the state.

Clarifies when a case manager's contacts with individuals who are not eligible for Medicaid, or who are not included in the target population, may qualify as Medicaid case management services

· contact with family members that are for the purpose of helping a Medicaid-eligible individual access services can be covered by Medicaid.

On another topic, CMS has announced that it is abolishing all ten of its regional offices. In place of the regional offices, four new consortia will be formed:

HR 4188 was introduced by Congressman Chris Van Hollen (D-MD) at the end of the last session. It would amend IDEA to permit a prevailing party in an action or proceeding brought to enforce the Act to be awarded expert witness fees and certain expenses. After talking with the Congressman’s staff, they are still trying to get additional Congressional support. Since IDEA is up for reauthorization in 2009, hard to believe it has almost been five years, it is not an easy sell. Members have consistently stated that they will only consider IDEA changes during reauthorization. It is also an issue that raises the old attorney fees issue which starts states talking about all the money they spend on court cases instead of kids. However, IDEA still needs some minor technical corrections – which is just corrections in language, not any changing – and they hope they can slip it in when that is done, but know it is a not a given. NAPSEC has signed on with the Consortium of Citizens with Disabilities (CCD), of which we are a member. The bill would help level the playing field for parents. The Bill reads:

SEC. 2. INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS' FEES.

(a) In General- Section 615(i)(3) of the Individuals with Disabilities Education Act (20 U.S.C. 1415(i)(3)) is amended by adding at the end the following new subparagraph:

(H) INCLUSION OF EXPERT WITNESS FEES AND OTHER EXPENSES AS ATTORNEYS FEES- For the purposes of this paragraph, the term attorneys' fees' shall include the fees of expert witnesses, including the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian's case in the action or proceeding.

(b) Effective Date- The amendment made by subsection (a) shall apply to any action or proceeding brought under section 615 of the Individuals with Disabilities Education Act (20 U.S.C. 1415) that has not been finally adjudicated as of the date of the enactment of this Act.

HR 3195 – S 1881 was introduced last session by Steny Hoyer (D-MD) and James Sensenbrenner (R-WI) and would restore the original intent of the Americans with Disabilities Act. The bill has 244 cosponsors on the House side. A hearing was held on January 29^th. S 1881, the companion bill, was introduced by Senator Harkin (D-IA) and Senator Specter (R-PA), it has 3 cosponsors. NAPSEC has signed on with CCD to support the bill and will continue to work with Congressman Hoyer’s staff to move the bill.

Bill Summary: ADA Restoration Act of 2007 - Amends the Americans with Disabilities Act of 1990 to: (1) redefine "disability" as a physical or mental impairment, a record of a such impairment, or being regarded as having a such impairment; and (2) define additional terms, including "mental impairment" and "physical impairment."

Prohibits, in determining whether an individual has an impairment, considering the impact of any mitigating measures the individual may be using or whether any impairment manifestations are episodic, in remission, or latent. Considers actions taken because of an individual's use of a mitigating measure to be actions taken on the basis of a disability.

Prohibits employment discrimination on the basis of disability (under current law, against a qualified individual with a disability because of the disability).

Allows, as a defense to a charge of discrimination, that the individual alleging discrimination is not a qualified individual with a disability.

Requires that the Act's provisions be broadly construed. Entitles duly issued federal regulations and guidance to deference by administrative bodies or officers and courts.

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act 'establish a clear and comprehensive prohibition of discrimination on the basis of disability,' and provide broad coverage and vigorous and effective remedies without unnecessary and obstructive defenses;

(2) decisions and opinions of the Supreme Court have unduly narrowed the broad scope of protection afforded in the ADA, eliminating protection for a broad range of individuals who Congress intended to protect;

(3) in enacting the ADA, Congress recognized that physical and mental impairments are natural parts of the human experience that in no way diminish a person's right to fully participate in all aspects of society, but Congress also recognized that people with physical or mental impairments having the talent, skills, abilities, and desire to participate in society are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

(4) Congress modeled the ADA definition of disability on that of section 504 of the Rehabilitation Act of 1973, which, through the time of the ADA's enactment, had been construed broadly to encompass both actual and perceived limitations, and limitations imposed by society;

(5) the broad conception of the definition had been underscored by the Supreme Court's statement in its decision in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), that the section 504 definition ' acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment';

(6) in adopting the section 504 concept of disability in the ADA, Congress understood that adverse action based on a person's physical or mental impairment is often unrelated to the limitations caused by the impairment itself;

(7) instead of following congressional expectations that disability would be interpreted broadly in the ADA, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. V. Williams, 534 U.S. 184, 197 (2002), that the elements of the definition ' need to be interpreted strictly to create a demanding standard for qualifying as disabled,' and, consistent with that view, has narrowed the application of the definition in various ways; and

(8) contrary to explicit congressional intent expressed in the ADA committee reports, the Supreme Court has eliminated from the Act's coverage individuals who have mitigated the effects of their impairments through the use of such measures as medication and assistive devices.

(1) to effect the ADA's objectives of providing 'a clear and comprehensive national mandate for the elimination of discrimination' and ' clear, strong, consistent, enforceable standards addressing discrimination' by restoring the broad scope of protection available under the ADA;

(2) to respond to certain decisions of the Supreme Court, including Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that have narrowed the class of people who can invoke the protection from discrimination the ADA provides; and

(3) to reinstate original congressional intent regarding the definition of disability by clarifying that ADA protection is available for all individuals who are subjected to adverse treatment based on actual or perceived impairment, or record of impairment, or are adversely affected by prejudiced attitudes, such as myths, fears, ignorance, or stereotypes concerning disability or particular disabilities, or by the failure to remove societal and institutional barriers, including communication, transportation, and architectural barriers, and the failure to provide reasonable modifications to policies, practices, and procedures, reasonable accommodations, and auxiliary aids and services.

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended--

(1) physical or mental disabilities are natural parts of the human experience that in no way diminish a person's right to fully participate in all aspects of society, yet people with physical or mental disabilities having the talent, skills, abilities, and desires to participate in society frequently are precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;'.

(7) individuals with disabilities have been subject to a history of purposeful unequal treatment, have had restrictions and limitations imposed upon them because of their disabilities, and have been relegated to positions of political powerlessness in society; classifications and selection criteria that exclude persons with disabilities should be strongly disfavored, subjected to skeptical and meticulous examination, and permitted only for highly compelling reasons, and never on the basis of prejudice, ignorance, myths, irrational fears, or stereotypes about disability;'.

Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended-‑

(1) The determination of whether an individual has a physical or mental impairment shall be made without considering the impact of any mitigating measures the individual may or may not be using or whether or not any manifestations of an impairment are episodic, in remission, or latent.

'(ii) The term ' mitigating measures' means any treatment, medication, device, or other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices (including assistive technology devices and services), reasonable accommodations, or auxiliary aids and services.

' (iii) Actions taken by a covered entity with respect to an individual because of that individual's use of a mitigating measure or because of a side effect or other consequence of the use of such a measure shall be considered actions taken on the basis of a disability under this Act.'.

(2) by redesignating paragraph (3) as paragraph (7) and inserting after paragraph (2) the following:

(3) PHYSICAL IMPAIRMENT- The term 'physical impairment' means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.

(4) MENTAL IMPAIRMENT- The term 'mental impairment' means any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities

(5) RECORD OF PHYSICAL OR MENTAL IMPAIRMENT- The term 'record of physical or mental impairment' means having a history of, or having been misclassified as having, a physical or mental impairment.

(6) REGARDED AS HAVING A PHYSICAL OR MENTAL IMPAIRMENT- The term 'regarded as having a physical or mental impairment' means being perceived or treated as having a physical or mental impairment whether or not the individual has an impairment.

Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended-‑

(1) in subsection (a), by striking 'against a qualified individual with a disability because of the disability of such individual' and inserting 'against an individual on the basis of disability'; and

(2) in subsection (b), in the matter preceding paragraph (1), by striking 'discriminate' and inserting 'discriminate against an individual on the basis of disability'.

Section 103(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113 (a)) is amended by striking 'that an alleged application' and inserting 'that-‑

'(1) the individual alleging discrimination under this title is not a qualified individual with a disability; or

Section 501 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201) is amended by adding at the end the following:

(e) Broad Construction- In order to ensure that this Act achieves its purpose of providing a comprehensive prohibition of discrimination on the basis of disability, the provisions of this Act shall be broadly construed to advance their remedial purpose.

(f) Regulations- In order to provide for consistent and effective standards among the agencies responsible for enforcing this Act, the Attorney General shall promulgate regulations and guidance in alternate accessible formats implementing the provisions herein. The Equal Employment Opportunity Commission and Secretary of Transportation shall then issue appropriate implementing directives, whether in the nature of regulations or policy guidance, consistent with the requirements prescribed by the Attorney General.

(g) Deference to Regulations and Guidance - Duly issued Federal regulations and guidance for the implementation of this Act, including provisions implementing and interpreting the definition of disability, shall be entitled to deference by administrative bodies or officers and courts hearing any action brought under this Act.

House Republicans have called for a moratorium on earmarks and the Senate Republicans have formed a fiscal group to deal with them. Last year in the House they vowed to cut the number of earmarks in half and the Senate stated that they would make all earmarks public to keep the process open to all who wanted to see who was getting what for whom! The President has said that he will veto appropriations bills that do not cut earmarks in half. He also told federal agencies to ignore future earmarks unless they have been written into law, as opposed as directed by bill language.

Although the President made a heavy pitch for NCLB to be reauthorized this session of Congress in the State of the Union address, it is unlikely to happen. Both Chairman Kennedy and Miller would like to move the reauthorization but there is not enough agreement among Democrats, Republicans and education groups to get this accomplished this session. Also, Senator Clinton and Obama sit on the Senate Health, Education, Labor and Pensions Committee and neither are big fans of the law. It is rumored that Senator Kennedy’s staff is working on a bill that covers the areas that are in agreement and would like to have a bill marked up in committee in March. I will keep you posted!

Congress agreed to a $152 billion stimulus package yesterday (2/7). After much debate, payments were added to the House version for disabled veterans and low-income seniors before being passed in the Senate. The bill would send government payments to most American households and grant tax incentives for investment. The bill passed in the Senate by a vote of 81 to 16. The House then passed the Senate version by a vote of 380 to 34, clearing it for the President’s signature. Refund checks will begin to flow to households in mid-May. This action showed how quickly Congress could move, when necessary, by only taking two weeks to come to agreement on a stimulus package.

The Virginia Senate passed a bill that would replace “mentally retarded” with “intellectually disabled” in references in their state laws. A companion bill is also being considered in the Virginia House. It is estimated that it will cost $75,000 to reprint signs, letterhead, business cards and other literature to reflect the change, once the bill is signed into law.

Forbes commissioned twenty essays that come from the world’s top business and government leaders. You can check out what they have to say at:

As always, feel free to contact me with any questions, comments or to inform me of any legislative issues that you would like assistance with at napsec@aol.com.

IDEA provides services for 6.947 million children and youth with disabilities in the United States. After reviewing the 5,500 comments received on the draft regulations, the US Department of Education has published the final IDEA regulations. The regulations take affect on October 13, 2006. For a copy of the IDEA Regulations go to www.ed.gov/legislation/FedRegister

The definition of child with a disability in §300.8 has been revised as follows:

(1) Section 300.8(b) (Children aged three through nine experiencing developmental delays) has been changed to clarify that the use of the term ‘‘developmental delay’’ is subject to the conditions described in §300.111(b).

(2) The definition of other health impairment in §300.8(c)(9)(i) has been changed to add ‘‘Tourette Syndrome’’ to the list of chronic or acute health problems.

The definition of excess costs in §300.16 has been revised to clarify that the computation of excess costs may not include capital outlay and debt service. In addition, a new ‘Appendix A to Part 300 - Excess Cost Calculation’’ has been added to provide a description (and an example) of how to calculate excess costs under the Act and these regulations.

The definition of highly qualified special education teacher in §300.18 has been revised, as follows:

(1) Section 300.18(b), regarding requirements for highly qualified special education teachers in general, has been modified to clarify that, when used with respect to any special education teacher teaching in a charter school, highly qualified means that the teacher meets the certification or licensing requirements, if any, set forth in the State’s public charter school law.

(2) A new §300.18(e), regarding separate ‘‘high objective uniform State standards of evaluation’’ (HOUSSE), has been added to provide that a State may develop a separate HOUSSE for special education teachers, provided that any adaptations of the State’s HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers and meets all the requirements for a HOUSSE for regular education teachers. This provision also clarifies that a State may develop a separate HOUSSE for special education teachers, which may include single HOUSSE evaluations that cover multiple subjects.

(3) Section 300.18(g) (proposed §300.18(f)) (‘‘Applicability of definition to ESEA requirements; and clarification of new special education teacher’’) has been revised as follows: (1) The heading has been revised, and (2) the language changed to clarify when a special education teacher is considered ‘‘new’’ for some purposes.

4) Section 300.18(h) (proposed §300.18(g)) has been modified to clarify that the highly qualified special education teacher requirements also do not apply to private school teachers hired or contracted by LEAs to provide equitable services to parentally-placed private school children with disabilities under §300.138.

The definition of Indian and Indian tribe in §300.21 has been changed to clarify that nothing in the definition is intended to indicate that the Secretary of the Interior is required to provide services or funding to a State Indian tribe that is not listed in the Federal Register list of Indian entities recognized as eligible to receive services from the United States, published pursuant to Section 104 of the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a–1.

The definition of parent in §300.30 has been revised to substitute ‘‘biological’’ for ‘‘natural’’ each time it appears in the definition, and to add language clarifying that to be considered a parent under this definition a ‘‘guardian’’ must be a person generally authorized to act as the child’s parent, or authorized to make educational decisions for the child.

(1) Section 300.34(a) (General) has been modified to (A) add the statutory term ‘‘early identification and assessment of disabilities in children,’’ which was inadvertently omitted from the NPRM, (B) combine ‘‘school health services’’ and ‘‘school nurse services,’’ and (C) remove the clause relating to a free appropriate public education under ‘‘school nurse services’’ because it duplicates the clause in §300.34(c)(13).

(2) Section 300.34(b) has been changed to (A) expand the title to read ‘‘Exception; services that apply to children with surgically implanted devices, including cochlear implants,’’ and (B) clarify, in new paragraph (b)(1), that related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g., mapping), maintenance of that device, or the replacement of that device.

(3) A new §300.34(b)(2) has been added to make clear that nothing in paragraph (b)(1) of §300.34 (A) limits the right of a child with a surgically implanted device (e.g., a cochlear implant) to receive related services, as listed in §300.34(a), that are determined by the IEP Team to be necessary for the child to receive FAPE; (B) limits the responsibility of a public agency to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; or (C) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly, as required in §300.113(b).

(4) The definition of interpreting services in §300.34(c)(4) has been changed to clarify that the term includes (A) transcription services, such as communication access real-time translation (CART), C-Print, and Type Well for children who are deaf or hard of hearing, and (B) special interpreting services for children who are deaf-blind.

(5) The definition of orientation and mobility services in §300.34(c)(7) has been changed to remove the term ‘‘travel training instruction.’’ The term is under the definition of special education, and is defined in §300.39(b)(4).

(6) The definition of school nurse services in 300.34(c)(13) has been expanded and re-named school health services and school nurse services. The expanded definition clarifies that ‘‘school nurse services’’ are provided by a qualified school nurse, and ‘‘school health services’’ may be provided by a qualified school nurse or other qualified person.

A definition of scientifically based research has been added in new §300.35 that incorporates by reference the definition of that term from the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. 6301 et seq. (ESEA). With the addition of the new definition in §300.35, the definitions in subpart A, beginning with the definition of secondary school, have been renumbered.

The definition of special education in §300.39 (proposed §300.38) has been revised to remove the definition of vocational and technical education that was included in proposed §300.38(b)(6).

The definition of supplementary aids and services in §300.42 (proposed §300.41) has been modified to specify that aids, services, and other supports are also provided to enable children with disabilities to participate in extracurricular and nonacademic settings.

Section 300.101(c) has been revised to clarify that a free appropriate public education (FAPE) must be available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course, and is advancing from grade to grade.

Section 300.102(a)(3), regarding exceptions to FAPE, has been changed to clarify that a regular high school diploma does not include an alternative degree that is not fully aligned with the State’s academic standards, such as a certificate or a general educational development credential (GED).

Section 300.105, regarding assistive technology and proper functioning of hearing aids, has been re-titled ‘‘Assistive technology,’’ and proposed paragraph (b), regarding the proper functioning of hearing aids, has been moved to new §300.113(a).

Section 300.107(a), regarding nonacademic services, has been revised to specify the steps each public agency must take, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

Proposed §300.108(a), regarding physical education services, has been revised to specify that physical education must be made available to all children with disabilities receiving FAPE, unless the public agency enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

A new §300.113, regarding routine checking of hearing aids and external components of surgically implanted medical devices, has been added, as follows:

(1) Paragraph (a) of §300.113 requires each public agency to ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(2) A new §300.113(b)(1) requires each public agency to ensure that the external components of surgically implanted medical devices are functioning properly. However, new §300.113(b)(2) has been added to make it clear that, for a child with a surgically implanted medical device who is receiving special education and related services, a public agency is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

Section 300.116(b)(3) and (c) regarding placements, has been revised to remove the qualification ‘‘unless the parent agrees otherwise’’ from the requirements that (1) the child’s placement be as close as possible to the child’s home, and (2) the child is educated in the school he or she would attend if not disabled.

Section 300.117 (Nonacademic settings) has been changed to clarify that each public agency just ensure that each child with a disability has the supplementary aids and services determined by the child’s individualized education program (IEP) Team to be appropriate and necessary for the child to participate with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child.

Section 300.130 (definition of parentally-placed private school children with disabilities) has been revised to clarify that the term means children with disabilities enrolled by their parents in private, including religious, schools or facilities, that meet the definition of elementary school in §300.13 or secondary school in §300.36.

A new §300.131(f), regarding child find for out-of-State parentally-placed private school children with disabilities, has been added to clarify that each LEA in which private (including religious) elementary schools and secondary schools are located must include parentally-placed private school children who reside in a State other than the State in which the private schools that they attend are located.

Section 300.133, regarding expenditures for parentally-placed private school children with disabilities, has been revised, as follows:

(1) A new §300.133(a)(2)(ii), has been added to clarify that children aged three through five are considered to be parentally-placed private school children with disabilities enrolled by their parents in private, including religious, elementary schools, if they are enrolled in a private school that meets the definition of elementary school in §300.13.

(2) A new §300.133(a)(3) has been added to specify that, if an LEA has not expended for equitable services for parentally-placed private school children with disabilities all of the applicable funds described in §300.133(a)(1) and (a)(2) by the end of the fiscal year for which Congress appropriated the funds, the LEA must obligate the remaining funds for special education and related services (including direct services) to parentally placed private school children with disabilities during a carry-over period of one additional year.

Section 300.136, regarding compliance related to parentally-placed private school children with disabilities, has been revised to remove the requirement that private school officials must submit complaints to the SEA using the procedures in §§300.151 through 300.153.

Section 300.138(a), regarding the requirement that services to parentally placed private school children with disabilities must be provided by personnel meeting the same standards as personnel providing services in the public schools, has been modified to clarify that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school children with disabilities do not have to meet the highly qualified special education teacher requirements in §300.18.

Section 300.140, regarding due process complaints and State complaints, has been revised to make the following changes:

(1) Section 300.140(b)(1) (proposed § 300.140(a)(2)), regarding child find complaints, has been changed to clarify that the procedures in §§300.504 through 300.519 apply to complaints that an LEA has failed to meet the child find requirements in §300.131, including the requirements in §§300.301 through 300.311.

(2) A new paragraph (b)(2) has been added to provide that any due process complaint regarding the child find requirements (as described in §300.140(b)(1)) must be filed with the LEA in which the private school is located and a copy of the complaint must be forwarded to the SEA.

(3) A new §300.140(c), regarding State complaints by private school officials, has been added to clarify that (A) any complaint that an SEA or LEA has failed to meet the requirements in §§300.132 through 300.135 and 300.137 through 300.144 must be filed in accordance with the procedures described in §§300.151 through 300.153, and (B) a complaint filed by a private school official under §300.136(a) must be filed with the SEA in accordance with the procedures in §300.136(b).

Children with Disabilities Enrolled by Their Parents in Private Schools - When FAPE Is at Issue

A new §300.148(b), regarding disagreements about FAPE, has been added (from current §300.403(b)) to clarify that disagreements between a parent and a public agency regarding the availability of a program appropriate for a child with a disability, and the question of financial reimbursement, are subject to the due process procedures in §§300.504 through 300.520.

Section 300.152(a)(3)(ii) (proposed paragraph (a)(3)(B)) has been revised to clarify that each SEA’s complaint procedures must provide the public agency with an opportunity to respond to a complaint filed under § 300.153, including, at a minimum, an opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation consistent with §300.506.

Section 300.152(b)(1)(ii), regarding time extensions for filing a State complaint, has been revised to clarify that it would be permissible to extend the 60-day timeline if the parent (or individual or organization if mediation or other alternative means of dispute resolution is available to the individual or organization under State procedures) and the public agency agree to engage in mediation or to engage in other alternative means of dispute resolution, if available in the State.

Section 300.152(c), regarding complaints filed under §300.152 and due process hearings under §300.507 and §§300.530 through 300.532, has been revised to clarify that if a written complaint is received that is also the subject of a due process hearing under §§300.507 or 300.530 through 300.532, or contains multiple issues of which one or more are part of a due process hearing, the State must set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing.

However, any issue in the complaint that is not part of the due process hearing must be resolved using the time limit and procedures described elsewhere in the State complaint procedures. A new paragraph (c)(3) also has been added to require SEAs to resolve complaints alleging a public agency’s failure to implement a due process hearing. This is the same requirement in current §300.661(c)(3).

Section 300.153(c), regarding the one year time limit from the date the alleged violation occurred and the date the complaint is received in accordance with §300.151, has been revised by removing the exception clause related to complaints covered under §300.507(a)(2).

Section 300.154(d), regarding children with disabilities who are covered by public benefits or insurance, has been revised to clarify that the public agency must (1) obtain parental consent each time that access to the parent’s public benefits or insurance is sought, and (2) notify parents that refusal to allow access to their public benefits or insurance does not relieve the public agency of its responsibility to ensure that all required services are provided at no cost to the parents.

Section 300.156(e), regarding personnel qualifications, has been revised (1) to add ‘‘or a class of students,’’ to clarify that a judicial action on behalf of a class of students may not be filed for failure of a particular SEA or LEA employee to be the word ‘‘employee’’ for ‘‘staff person,’’ to be

The Washington Update