DFN E-News: Special Edition

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For readers who are not on the Justice for All (JFA) or National Council on Disability (NCD) listservs, this update from the National Council on Disability [see NCD Bulletin, November 2003, at www.ncd.gov/newsroom/bulletins/b1103.html], reposted by JFA, is a very helpful summary of the status of prominent disability-related issues pending before Congress.

Congressional Update

The first session of the 108th Congress is coming to a close. The lawmakers recessed just before the Thanksgiving holiday, with plans to return December 8 for a short session to address major unfinished business, such as the conference report for all yet-to-be-adopted FY 2004 spending bills, including Labor, Health and Human Services, Education and related agencies.

A number of disability issues are still pending before the House and/or the Senate; most will not be resolved this year. NCD staff and contractors have actively followed a number of issues — sharing information and recommendations with key congressional staff, in keeping with our role as an advisory body to Congress. It now appears that this work will continue into the second session, when Congress will again seek resolution on outstanding issues in the Individuals with Disabilities Education Act (IDEA) (passed the House, awaiting a vote on the Senate Health, Education, Labor and Pensions (HELP) Committee Report and eight amendments to be debated on the Senate floor); Workforce Investment Act (awaiting conference); Temporary Assistance to Needy Families (passed the House, awaiting a vote on Senate Finance Committee Report); and Higher Education (several bills passed House, Senate HELP Committee expected to take it up early next year). Also carried over to next year will be definitive action on the reauthorization of the Transportation Equity Act – 21st Century.

Reauthorization of IDEA

As previously reported, the House adopted its version of IDEA reauthorization in the spring. H.R. 1350 reduces paperwork requirements on teachers and administrators, limits the number of students wrongly placed in special education, and allows schools greater power to discipline students with disabilities. The Senate bill (S. 1428) has been reported out of the Finance Committee and awaits floor action. A unanimous consent (UC) agreement was adopted in the Senate in mid-November permitting consideration of the bill and limiting amendments that will be allowed when the bill is considered by the full Senate. Under the UC Senator Judd Gregg (R-NH) will be allowed three amendments addressing (1) attorneys’ fees, (2) funding, and (3) paperwork reduction; Senator Tom Harkin (D-IA) will be allowed one amendment on funding; Senator Patty Murray (D-WA) will be allowed one amendment on homeless children; and Senator Hillary Clinton (D-NY) will be allowed one amendment on coordination of developmental disability data. Standard protocol also allows one open amendment for each party, which means there will be one additional amendment from each side of the aisle. Further action on S. 1428 will be postponed until next year.

The following is a brief overview of major changes in the two bills.

Funding: H.R. 1350 contains a plan to reach “full funding” in seven years, with an amendment adopted on the House floor to guarantee that all of the increases after this fiscal year would go directly to local school districts. In the Senate, Senators Tom Harkin and Chuck Hagel (R-ME)are expected to offer a full funding amendment when the bill makes it to the Senate floor. Both the House and Senate bills include provisions that would allow state and local education agencies to use IDEA funds for students who are “at risk” before they are identified for special education as a means of avoiding inappropriate placements. The Senate bill authorizes states to use some of their Part B funds to establish a risk pool to be used for students with “high needs.”

Discipline: H.R. 1350 would allow school officials to suspend or expel students with disabilities for violations of school codes of conduct, rather than only for major infractions involving guns or drugs, as in current law; students must still be provided educational services after 10 days of suspension or expulsion. The House bill gives states the authority to pass a law that would allow alternative placements for longer than 45 days. The House bill removes the requirement for hearings, IEP team meetings, and the manifestation of a disability review or functional assessment/behavioral intervention plan before the student can be removed from the classroom. The Senate bill retains but weakens the manifestation determination provisions, but removes some current protections for the student during the disciplinary hearings. The House (and Senate) bills also weaken the requirements for alternative educational settings, requiring only that the student make progress toward meeting the IEP goals, rather than guaranteeing that the student will continue to receive the same services and modifications. S. 1248 changes the discipline process for various violations of “school code of conduct,” including permitting removal for longer than 10 days if the behavior is not a manifestation of the disability or if the hearing officer determines the student to be a danger to others. Alternative placement for specific violations would be allowed, even when the violation is a result of the student’s disability. The Senate bill does include provisions for behavior supports for students who need assistance in behavior management.

School vouchers: One of the more controversial issues was the use of federal money for school choice, including allowing parents to send their children to private schools with IDEA funds. Neither bill authorizes vouchers for students served with IDEA funding.

Monitoring and enforcement: The Senate bill creates new strategies for enforcement, including a number of opportunities for noncompliant states to come into compliance before losing funds.

Due process: The House bill requires states to offer voluntary binding arbitration as an alternative to due process hearings. Both bills create a statute of limitations on parental due process requests. In both bills, parents cannot raise new issues during due process hearings.

Transition: The Senate bill strengthens transitional provisions, including an amendment to the Rehabilitation Act to include a stronger presence of the VR system in the schools for transitioning students.

Short-term objectives: Both the House and Senate bills replace short-term objectives from a student’s IEP with a statement of the child’s progress toward annual goals.

Paperwork reduction: The House bill gives the Secretary of Education the authority to waive regulatory requirements that result in too much paperwork for four years in 10 states. The Senate bill requires the Comptroller General to determine which requirements in IDEA result in extra paperwork and report back to Congress in 18 months. Additional paperwork reduction issues will be debated when Senator Gregg offers an amendment relating to this issue.

S. 1248 also contains provisions for alternate assessments, positive behavioral supports, and stronger personnel standards.

Reauthorization of the Workforce Investment Act and the Rehabilitation Act

Status: The House and Senate have both passed legislation reauthorizing the Workforce Investment Act, including the Rehabilitation Act.

Issues

Funding: Both S. 1627 and H.R. 1261 include language that would give governors the authority to divert funds authorized for the public Vocational Rehabilitation (VR) program to the One-Stop system. The bills authorize the governors to take money from each of the mandatory partners (including VR) to cover the infrastructure costs of the One-Stops in the state. The Rehabilitation Act specifies that Title 1, Rehab Act, funds are to be limited to activities supporting VR services for eligible individuals with disabilities. Most states currently cannot serve all who apply and are found eligible for VR services, and this provision would create additional barriers to employment for individuals with disabilities.

Accessibility: Although one of the crucial elements of the workforce development system is universal access to the system, it is reported that physical and programmatic accessibility in the One-Stops is a major barrier for individuals with disabilities wishing to receive services. The Senate bill includes a number of provisions to strengthen the requirements that individuals with disabilities have equal access to One-Stop services. S. 1627 would require states to periodically assess physical and programmatic accessibility of the One-Stop system. The bill would also require the Department of Labor to provide technical assistance to help ensure the One-Stops are both physically and programmatically accessible.

Performance measures: H.R. 1261 introduces new performance measures into the workforce development and vocational rehabilitation systems, including cost-effectiveness as an indicator of acceptable performance. As the General Accounting Office reported and the Senate recognized, performance measures frequently drive the workforce system, and using cost-effectiveness as a performance measure would create significant disincentives for serving harder-to-serve populations. The Senate bill requires state and local workforce boards to adjust performance measures to accurately reflect and measure the provision of services to individuals with disabilities. The Senate bill also creates incentives for local One-Stops that do an exemplary job of providing services to individuals with disabilities.

Welfare Reform — Temporary Assistance to Needy Families (TANF)

Status and issues: Congress extended TANF for six months at the end of September, giving it until March 30, 2004, to work out the details of the stalled reauthorization bill. The House passed its full reauthorization measure (H.R. 4) on Feb. 13, which, among other things, tightens work requirements (requires 40 hours of work per week) while requiring a five-year freeze on the states’ basic grants at the current level, where it has been since 1997. In September the Senate Finance Committee reported out an amended version of H.R. 4. The Senate Finance Committee adopted three disability-related amendments — a provision that allows for three months of rehabilitation plus another three (total of six months within a 24-month period) provided the person is engaged in some work or work- readiness program; a provision that enables a single parent of a child with a disability or a family member dependent on care to be able to count caregiving as work hours; and a provision for presanction reviews to determine what barriers may be preventing the person or family from complying with the law. The bill raises the number of hours required for work from 30 to 34 (the House bill requirement is 40 hours per week). Disability advocates are hoping for an amendment when the bill goes to the Senate floor to allow states to go beyond six months of rehabilitation training, when it is necessary for an individual’s rehabilitation services. Reports are that the bill will not go to the Senate floor until next year.

Reauthorization of the Higher Education Act

Status and issues: This reauthorization will not be completed until next year. While the House has moved forward with a number of bills addressing different parts of higher education, the Senate will not take it up at least until January. NCD has issued a report to Congress on issues of importance to individuals with disabilities in higher education that includes a number of recommendations for consideration in the reauthorizing legislation. The NCD Youth Advisory Council prepared a report based on nationwide outreach to higher education students with disabilities. These two reports were made available through personal contacts with key congressional staff by NCD contractors and a YAC representative in September. NCD plans to continue these advisory meetings with Senate staff over the next few months.

International Disability Rights

Status and issues: Nonbinding resolutions are pending in both the House and Senate (Representative Tom Lantos (D-NJ) and Jim Langevin (D-RI) and Senator Tom Harkin (D-IA) expressing the sense that the Administration should actively engage in the U.N. negotiations around a disability rights treaty and support a strong treaty. The resolutions were introduced prior to the U.N. meeting in New York. The House bill was adopted by the Committee, but it has not been schedule for vote on the House floor. There has not been much momentum for the resolutions since the UN meeting in New York.

NCD released a major report in the Senate in September on disability and U.S. foreign affairs. The report, Foreign Policy and Disability: Legislative Strategies and Civil Rights Protections to ensure Inclusion of People with Disabilities, advises Congress on activities necessary to reverse a long-standing practice of excluding disability from U.S. foreign policy and practice. Senator Tom Harkin (D-IA) and Rep. Tom Langevin (D-RI) spoke at the NCD briefing on the paper. Subsequently, Senator Harkin has taken the lead in including language in the supplemental appropriations for foreign operations (requiring funds spent in Iraq and Afghanistan to include consideration of the needs of individuals with disabilities) and the foreign assistance appropriations bill for FY 2004. The bill also includes language establishing the Millennium Challenge Assistance (MCA) program, requiring the MCA to include disability as a criteria for funding. The FY 2004 appropriations bill, including the MCA appropriation, has been included in the omnibus spending bill that has been conferenced and is awaiting final approval in both the House and Senate. If Congress does not vote on the conference report before it adjourns for the year, it will be among the first issues taken up next year.

All JFA postings from 1995 to present are available at www.aapd-dc.org/JFA/JFAabout.html
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