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President Bush Signs Law to Reauthorize Our Nation’s Special Education Law

December 7, 2004

On Friday, December 3rd, President Bush signed into law a bipartisan bill that revamps our nation’s special education law, the Individuals with Disabilities Education Act (IDEA). NAMI is pleased with many of the provisions that Congress included in the final bill signed by the President, however some of the changes in the law may continue to make it difficult for students with mental illnesses to receive an appropriate education. NAMI looks forward to working with national, state and local leaders as this law is implemented to improve the academic performance of students with mental illnesses, who continue to have the highest dropout and failure rates and lowest academic achievement of any disability group.

The effective date for the majority of the provisions included in the new law, the Individuals with Disabilities Education Improvement Act (H.R. 1350), is July 1, 2005, with the exception of the "highly qualified teacher" provisions, which go into effect immediately.

You can review the entire bill that was signed into law by clicking here.  Here are some of the key provisions that are included in the new law:

Discipline: NAMI asked Congress to retain the provisions in current law on discipline out of concern that changes to existing law would allow schools to inappropriately remove students with mental illnesses from classrooms. The law includes several changes to current law.

The language in the new law provides that school personnel may consider any unique circumstances on a "case-by-case" basis in determining whether to order a change in placement for a student with a disability who violates a code of student conduct. This language is somewhat vague and ambiguous and it is not yet clear how this language will be interpreted. The newly enacted provisions include protections for students if a school is considering an extended change in placement for disciplinary reasons and the behavior in question was a manifestation of the student’s disability. There were also changes made to the manifestation determination process. Finally, the "special circumstances" provisions -- that allow schools to remove students to an interim alternative setting for up to 45 school days without regard to whether the behavior was a manifestation of a student’s disability -- were broadened from cases involving weapons and illegal drugs – to now also include cases in which "serious bodily injury" is inflicted upon another person. In cases involving weapons, illegal drugs or serious bodily injury, schools may remove students for more extended periods of time regardless of their disability.

Positive Behavioral Supports: In a major victory for families and students with disabilities, the new law calls for the inclusion of positive behavioral supports and interventions in developing the IEP and in addressing the academic needs of students with disabilities. The law recognizes the value of positive behavioral supports – a researched based approach to teaching and classroom management that identifies, defines, and reinforces positive behaviors in the classroom to create a more positive learning and teaching environment for all students.

Funding: Unfortunately, Congress failed to require mandatory full funding for IDEA as part of the reauthorization of the law. Instead, the new law recommends that special education be fully funded – something that has not happened to date.

IEPs: There were several key changes in the law that relate to the individualized education program (IEP). The new law removes the requirement for the use of short-term objectives or benchmarks to measure a student’s academic progress. Instead, the new law requires "periodic reports" on the child’s progress toward meeting the annual goals included in the IEP.

The new law also sets up a demonstration program that allows schools to use an optional multi-year IEP, not to exceed three years. This program allows 15 states to submit a proposal to the U.S. Department of Education to participate in this demonstration program. This program will be evaluated for its effectiveness at the end of 2 years and the U.S. Department of Education will make a recommendation on the appropriateness of broader implementation of the program. Therefore, families that live in states that participate in this demonstration program are strongly encouraged to share any comments or concerns that they have about the appropriateness or effectiveness of the program and how it is being used by schools with the U.S. Department of Education.

Monitoring and Enforcement: In response to concerns expressed by NAMI and many other advocacy groups and the publication of national reports showing wide spread noncompliance with the special education law at the federal, state and local levels -- the new law includes stronger enforcement provisions. These provisions threaten schools that continually fail to comply with the provisions of the special education law with the loss of a portion of their federal education funding.

Students and Medications: A new provision has been added to the law that provides that schools are not permitted to require a student to use medication as a condition for attending or participating in school. However, the bill makes clear that school personnel may openly communicate with families about the student’s functioning and the need for an evaluation. This provision had originally targeted psychotropic medications and tied federal funding for education to schools adopting policies prohibiting the exclusion of students who refused to take medication. NAMI is pleased that Congress listened to NAMI and other advocates’ concerns that the proposed language might cause school professionals to refuse to talk openly with families about legitimate mental health concerns at a time when children with mental illnesses are frequently not identified and treated.

The U.S. Department of Education is expected to issue regulations for the new special education law within one year of its passage.

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