February 28, 2005

John H. Hager
Assistant Secretary
Office of Special Education and Rehabilitative Services
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202

Submitted Via Email to: Comments@ed.gov

Dear Assistant Secretary Hager:

On behalf of the 150,000 members and affiliates of the American Psychological Association (APA), I would like to thank you for the opportunity to comment on the development of regulations to implement the Individuals with Disabilities Education Improvement Act (IDEA), P.L. 108-446.

APA, the world's largest organization representing the field of psychology, has a long-standing commitment to promoting the optimal development and education of children. APA's membership includes researchers, practitioners, and educators whose work has played a pivotal role in our society's understanding of the cognitive, social and emotional development of children. Prevention and intervention initiatives for academic and emotional difficulties have also been a long-term focus of many of our members.

The 2003 report of the President's New Freedom Commission on Mental Health, Achieving the Promise: Transforming Mental Health Care in America, recommends the expansion and improvement of school mental health programs. In addition, the report stresses the critical importance of early screening, assessment, and intervention across the lifespan and the need to overcome stigma associated with mental disorders. Recognizing the critical role of special education professionals (including psychologists) in this effort, the 2002 Report of the President's Commission on Excellence in Special Education deemed it a "national priority to recruit and retain the finest special educators and related services personnel" as an important component of IDEA.

In any given year, it is estimated that one in five children and adolescents has a mental disorder; yet less than 20% of these children receive needed treatment, including special education and related services. The long-term consequences of untreated childhood disorders are costly, in both human and fiscal terms. Given that many children and adolescents with emotional or behavioral disorders often face stigma and barriers to identification, an emphasis on prevention and early intervention services is critical to ensuring the positive social development and academic achievement of all students. In this context, it should also be noted that children and adolescents with emotional disorders have the highest dropout rate among all categories of children with disabilities. Services designed and offered under IDEA can greatly assist in addressing these students' mental health needs, improve their academic achievement, and strengthen their chances for success in life.

We applaud the increased emphasis on behavioral interventions throughout P.L. 108-446. As the second most common reason for referral to special education, behavioral and emotional problems demand as strong an emphasis on prevention and intervention efforts within general education as reading problems and other academic difficulties. We encourage the Department to continue this emphasis. We recommend the use of school-wide prevention and intervention programs that incorporate early identification and utilize qualified mental health service providers.

APA supports the provision in P.L. 108-446 that calls for schools to take a child's disability into account in imposing discipline for misbehavior. IDEA should continue to provide safeguards to ensure that children and adolescents with mental disorders who engage in misconduct are not deprived of educational services. Cessation of services should be prohibited because it is inappropriate and does not address the root of the problem. Furthermore, loss of progress due to lack of services is particularly difficult to recoup for students with emotional and behavioral disorders. When education and supportive services are denied, students are more likely to become involved in illegal activities. School dropout rates and delinquency would then increase, and communities would be less safe.

I. Assessment for Determining Disability Status

A. Determination of Eligibility [Sec. 614 (b) (6)]

As recognized by P.L. 108-446 section 602(30)(A), a specific learning disability is a disorder "…of the basic psychological processes involved in understanding or in using language…." Thus, it is appropriate and critical that evaluations for specific learning disability involve a comprehensive psychological evaluation of a child's strengths and deficits to ensure appropriate educational placement and promote academic performance. Such an assessment is also essential for disability determinations of mental retardation, emotional disturbance, and other impairments. An empirically-based psychological evaluation comprised of appropriate and relevant measures, including tests of cognitive ability, is vital to the development of cost-effective, evidence-based instructional design. There is also agreement among experts in psychological testing that assessments must utilize procedures that are standardized, normed on the target populations, and administered by qualified professionals. By focusing on individual differences in learning abilities, instruction is more likely to result in enhanced learning outcomes for children. Moreover, findings derived from a comprehensive assessment also contribute to the development of Individualized Education Programs (IEPs) for children with learning and other disabilities. We believe that the Department's investment in research on assessment procedures and strategies will help to better identify and serve children with disabilities.

Recommended Regulatory Language

A) In determining disability status, a comprehensive psychological evaluation shall be conducted by appropriately trained personnel utilizing multiple assessment mechanisms (e.g., norm-referenced tests, criterion referenced tests, and curriculum specific measures) and including all necessary data (i.e., cognitive, emotional, and academic) to understand a child's academic performance, in order to--

1) Identify a student's learning strengths, deficits, and style in order to determine the existence of a disability and to inform the design of appropriate interventions;
2) Address a student's accomplishments and needs throughout his or her academic career (preschool to 12th grade);
3) Develop a student progress monitoring system that documents a student's performance and the effectiveness of interventions implemented; and
4) Gather evidence and documentation of the quality of instruction offered to determine whether a student's performance is commensurate to age, grade placement, and academic opportunity offered.

B. Determination of Eligibility: Specific Learning Disability [Sec. 614 (b)(6)]

Based on the preponderance of research in recent years, APA acknowledges the limitations of the current model of a discrepancy between achievement and IQ scores as the determining criterion for the identification of learning disabilities. However, APA believes that the information provided by an assessment of cognitive functioning can be extremely useful in learning disability determinations. As required by the definition of a specific learning disability in P.L.108-446, a comprehensive assessment identifies whether a disorder in learning is present. Moreover, an assessment provides useful information so that the IEP team is best able to tailor instruction to an individual child's learning strengths and deficits. We encourage the Department to investigate methods by which qualified personnel may provide alternative assessments of children with disabilities in light of the removal of the requirement to utilize the discrepancy criterion for such determinations.

Recommendation: Through the application of high quality instruction, delivered by well-trained professionals, local educational agencies (LEAs) should be better able to differentiate between children who have different learning styles and children who have disabilities. Indeed, APA is pleased that the House Report "encourages the Department to establish effective technical assistance, training, model development, dissemination centers, and professional development activities to support these alternative models. The Department should also conduct high quality research to evaluate the effectiveness of these models, and provide more information regarding these alternatives." There is also a critical need for state educational agencies (SEAs) to provide guidance for LEAs in this effort.

C. Definition of Eligibility: Emotional Disturbance [34 C.F.R. Sec. 300.7(c)(4)(ii)]

Recommendation: We recommend that the reference to "socially maladjusted" in the current regulatory definition of emotional disturbance be eliminated. The exclusion of children from eligibility on the basis of "social maladjustment" poses a significant barrier to accurately identifying children with mental disorders. The term is not defined, nor is there any research base supporting a definition of social maladjustment. Further, there are no valid instruments to make such a "diagnosis." Although ten states have dropped the exclusion of social maladjustment, the majority of states have continued to use the federal definition as it is written. Eliminating this exclusion will assist SEAs and LEAs in reducing misidentification that leads to complete exclusion, inappropriate placements in other categories, and provision of inappropriate special education services.

II. Behavioral Interventions

A. Early Intervening Services [Sec. 613(f)]

APA urges the Department to follow the recommendation of the House Committee Report (H.Rept. 108-77) for LEAs to: "take advantage of the prereferral services in section 613 to provide early intervention services to students and accompany those services with rigorous evaluation methods and curriculum-based assessments to measure the progress of the child." However, it is critical that these newly developing programs be thoroughly evaluated for their effectiveness and utility.

We appreciate the inclusion of behavioral interventions as part of the early intervening services that may be provided to students not yet classified under IDEA. We are also pleased that "other school staff" are included in the professional development section on delivering empirically-based academic and behavioral interventions.

Recommendation: School districts should be aware that they have available a cadre of related services personnel whose specialized training includes developing just such interventions. Specifically, school-based mental health professionals and psychologists are trained to develop behavioral interventions that are directly linked to improved academic achievement. Utilizing current school personnel (e.g., psychologists), particularly those specifically trained to recognize and treat students in need of additional services, can also improve collaboration between general and special education staff. This should allow for more efficient use of IDEA dollars and improved coordination and implementation of the No Child Left Behind (NCLB) and IDEA programs.

Recommended Regulatory Language:

(a) In implementing early intervening services, a local educational agency may utilize related services personnel to --
(1) assist in the determination of students who will receive coordinated, early intervening services;
(2) assist in the design, implementation, and provision of such services; and,
(3) consult with teachers and other school personnel on the provision of such services in the general education environment.

B. Individualized Education Program [Sec. 614(d)(3)(B)(i)]

The IDEA statute calls for consideration of behavioral needs when designing an IEP, as well as the use of positive behavioral supports, interventions, and services. APA prefers the Senate bill's language that called for IEP teams to provide positive behavioral interventions and supports "in the case of a child whose behavior impedes the child's learning or that of others." We are disappointed that, with regard to reading problems, Congress mandates the use of evidence-based interventions; but in the case of behavioral problems, schools need only consider using them.

Recommendation: Discussion accompanying the current regulations states "school officials have powerful incentives to implement positive behavioral interventions, strategies and supports whenever behavior interferes with the important teaching and learning activities of school" (Discussion, 34 C.F.R. Sec. 300.346(2), March 1999). The regulations should strongly encourage school districts to draw on the extensive body of research on the effectiveness of positive behavioral supports, interventions, and services and the benefits of their use. School districts should be encouraged to provide both individual and school-wide interventions, which will address both the individual child's needs and improve the overall school climate.

We also recommend that the Department promote continued research on effective behavioral assessments and interventions in order to continue the progress of their application.

Rationale: We believe that the Department's leadership in highlighting the improved academic and behavioral outcomes achieved when these services are implemented effectively will result in an increased use of such interventions.

According to the Caring for Every Child's Mental Health Campaign, an initiative of the federal Center for Mental Health Services of the Substance Abuse and Mental Health Services Administration, children who are victims or witnesses to acts of bullying often suffer from serious emotional problems. Positive behavioral supports and interventions have been proven to assist classrooms or schools with high levels of bullying problems by making students feel more safe and more satisfied with school life. Without the availability of these supports or interventions, for many students, especially those who are bullying victims, the classroom is no longer a place of learning. Children, who feel unsafe have difficulty paying attention to their schoolwork, have higher rates of absenteeism, and experience academic problems.

Recommended Regulatory Language:

Sec. 300.346(2). Consideration of special factors. The IEP team also shall --

(i). In the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior.
(A) Consideration of positive behavioral interventions, strategies, and supports shall include consideration of effective evidence-based interventions that lead to improved academic outcomes, improved classroom behavior, and a reduction in disciplinary referrals.
(B) In considering evidence-based interventions for an individual child, the IEP team may recommend to the local educational agency the use of such interventions on a school-wide basis to improve the overall school climate.

III. Personnel Standards

A. Personnel Qualifications [Sec. 612(14)(B)(i)] and [Sec.612(14)(C)]

All children should receive services from highly trained and qualified related services personnel.

Recommendation: The regulations should clarify that states are not to create new categories to replace "emergency, temporary or provisional" certification or waivers for either special education teachers or related services personnel. These categories include 'conditional" or "interim" certification, and other similar semantic devices designed to avoid the specific language contained in the statute. All special education personnel are to meet the full set of requirements of their profession, as determined by that state.

Rationale: There is evidence that some states have created new categories for instant certification in order to circumvent the prohibition against temporary, emergency, provisional, or waived certification. Such a practice serves to undermine the law's requirements.

Recommendation: Include regulatory language for the relevant section (Sec. 300.136 Personnel standards, or its successor) that details specifics on SEA obligations and outlines some specific measurable steps that LEAs could take to recruit, hire, and retain highly qualified personnel, such as the following:

SEAs shall:

•  Establish caseload/classroom size standards that take into account total workload activities required and performed by school-based personnel to engage in the broad range of professional activities necessary to meet individual student needs, both to attract and retain qualified personnel and to meet the educational needs of students; and other programs that may include, but are not limited to:

• Fund intensive certification, licensing, or registration programs for personnel who are providing special education or related services to accelerate the preparation of qualified personnel, including distance-learning opportunities;

LEAs shall:

• Establish reasonable workload requirements that allow special education teachers and related services providers to engage in the full range of professional roles and responsibilities so that students with disabilities receive the appropriate quality and quantity of services;

• Provide funds to ensure adequate working conditions, including appropriate facilities, necessary educational material, ongoing continuing professional development, and necessary clerical, technological support, and salary supplements for nationally certified personnel.

Rationale: There is concern about the potential changes in qualification standards and hiring practices that may result from changes in IDEA. It is critical that SEAs establish appropriate qualifications for related services providers, such a practice is in the best interest of the children in meeting educational goals, especially related to the Adequate Yearly Progress criteria for the No Child Left Behind. Ensuring that related services providers have received adequate professional preparation to meet the needs of today's student population will ensure that students with disabilities receive the appropriate quality and quantity of services, which is consistent with the intent of Congress. It is essential that the Department of Education provide clear leadership at this point in time to direct efforts toward appropriate and effective initiatives for recruitment and retention of qualified personnel, rather than allowing states to take a path that will ultimately create staff shortage crises and student failure.

IV. State and Individual Eligibility and Service Issues

A. Prohibition on Mandatory Medication [Sec. 612(a)(25)]

Recommendation: With regard to any regulatory language surrounding the provision that prohibits LEAs from requiring a child to obtain a prescription for medication as a condition of attending school, we strongly encourage the Department to reiterate the critical Rule of Construction (B) contained in the statute --
Nothing in subparagraph (A) shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under paragraph (3).

Rationale: We believe that this language is imperative to ensure that the lines of communication between school personnel and parents remain open regarding the needs of the child. It remains our concern that, without this language, such policies would be interpreted as a prohibition on certain discussions between school personnel and parents and would have a detrimental effect on the identification of students with mental health and behavioral needs. The data from the 1999 Surgeon General's Report on Mental Health, the President's New Freedom Commission Report on Mental Health, and other sources indicate that the under-identification and misidentification of children and adolescents with mental disorders is already an alarming problem.

B. Obligations Related to and Methods of Ensuring Services [Sec. 612(a)(12)]

Recommendation: We strongly encourage the Department to emphasize the importance of developing, implementing, and enforcing state interagency agreements. State Medicaid agencies, in particular, should maintain a strong role in the reimbursement of eligible services for Medicaid eligible children.

Rationale: Such agreements, when effectively implemented, would improve collaboration across child-serving agencies and reduce disputes of responsibilities.

C. State Advisory Panel [612(a)(21)]

During the reauthorization process, APA advocated for the explicit mention of state mental health agencies as members of the State Advisory Panel [Sec. 612 (a)(21)(B)] (vii); representatives of other State agencies involved in the financing or delivery of related services to children with disabilities, including State mental health agencies and State mental health organizations.

Recommendation: Since this language was not adopted in P.L. 108-446, we encourage the Department to include in the IDEA regulations that states are encouraged to invite representatives from state mental health agencies to participate on the State Advisory Panel.

Rationale: Where the State Advisory Panel has representation from the state mental health agency, the state is better able to ensure that students are connected to appropriate mental health services. For example, in Ohio, participation by the Department of Mental Health (ODMH) on the State Advisory Panel for Exceptional Children (SAPEC) has enabled the SAPEC to provide specific recommendations to the Department of Education on how the IEP process may be modified to improve outcomes for students with emotional disturbances. The ODMH, through its participation on the SAPEC, has also been able to promote linkages between Ohio school systems and emotional supports for children and adolescents in need.

A key finding of The President's New Freedom Commission on Mental Health, Achieving the Promise: Transforming Mental Health Care in America, is the continued fragmentation of mental health services and funding across multiple agencies and programs. The Commission's report recommends that federal, state, and local child-serving agencies "work collaboratively with families to develop, evaluate, and disseminate effective approaches for providing mental health services and supports to youth in schools along a critical continuum of care." We agree and believe that the state Advisory Panel is an excellent vehicle for cross-system collaboration. We are concerned that state mental health agencies not being explicitly mentioned may hinder their involvement and for effective collaboration.

Recommended Regulatory Language:

Sec. 300.651. Membership.
(b) The Governor, or any other official authorized under State law to make such appointments, may add additional members to the State Advisory Panel, including representatives of the state mental health agency and state mental health organizations, as a means to improve collaboration between state and child-serving agencies and coordination of services for children with disabilities.

Lastly, we commend Congress for including provisions, such as electronic mail, that improve communication between and among parents and educators and related services personnel. We believe improving methods of communication not only reduces paperwork, but also, more importantly, enables parents to enhance their relationship with their child's school and thereby help to improve their child's education.

Thank you for your consideration of these comments submitted by the APA concerning implementation of the IDEA. We welcome the opportunity to work with the Department in developing the regulations for this vital piece of legislation. For further information, please contact Deborah Cotter or Ellen Garrison, Ph.D., in the APA Public Policy Office at (202) 336-6062.

Sincerely,

L. Michael Honaker, Ph.D.
Deputy Chief Executive Officer
And Chief Operating Officer

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