MEMORANDUM
DATE: October 31, 1997
FROM: James Gashel
TO: Persons interested in IDEA issues
RE: Comment points on IDEA proposed rules
PROCEDURAL INFORMATION:
The United States Department of Education, Office of Special
Education and Rehabilitative Services (OSERS), has published
proposed rules needed to implement the Individuals with
Disabilities Education Act Amendments of 1997. The notice, with
an invitation to comment, was published in the Federal Register
on October 22, 1997. The entire text of the notice--consisting
of a preamble, the proposed rules themselves (34 CFR parts 300,
301, and 303), and an appendix to part 300--can be found
electronically at the following world wide web address:
http://www.ed.gov/legislation/FedRegister/proprule/1997-
4/102297a.html
The Department of Education is also distributing copies of
the notice upon request. To obtain a print copy call toll-free
to 1-800-872-5327. This is the Information Resource Center for
the Department of Education. Your request for the IDEA proposed
rules of October 22, 1997, can be placed with an operator at this
number. To obtain an alternate format copy--Braille, computer
disk, or audio tape--call (202) 205-8113.
You can also download a copy of the proposed regulations from
NFB NET. Either Telnet to nfbnet.org or call (612) 696-1975 and download th
e
file IDEAPRTX.ZIP.
Comments in response to the proposed rules must be received
at the Department of Education in Washington D.C., on or before
January 20, 1998. The address for written comments is: Thomas
Irvin, Office of Special Education and Rehabilitative Services,
U.S. Department of Education, Room 3090, Mary E. Switzer
Building, 330 C Street, S.W., Washington, D.C. 20202.
Comments may be submitted in electronic form by using the
following Internet address: comment@ed.gov. In filing
electronically, the message must include the phrase "Assistance
for Education" as the subject line of the e-mail message.
CONTENT/ISSUES:
This information is provided in advance of a full-scale
analysis of the extensive proposed rules. However, a brief
review indicates that the matters discussed below should receive
priority attention in comments. Comments on portions of the
proposed rules will be developed during November and December,
1997, and prepared for submission in January, 1998. This
memorandum will then be updated from time to time during this
process to reflect the additional views and recommendations.
Issues to be incorporated in the final comment should be brought
to the attention of the National Federation of the Blind for
consideration.
(1) Definitions--section 300.7(b)
COMMENT: This section defines various terms used in the phrase
"child with a disability." The term "visual impairment including
blindness" is defined in paragraph (b)(13). The definition as
proposed is broad enough to include any child whose educational
performance is adversely affected because of impaired vision
after correction.
While the proposed definition may be helpful in applying
certain provisions of the regulations, it may actually lead to
some confusion unless some additional clarification is provided.
In fact, the implication of the definition as proposed is that
"blindness" essentially means no sight, and "visual impairment"
essentially means partial sight.
This implication is misleading. Even more to the point, it
may lead to unintended limitations on the application of the IEP
provision regarding Braille in section 300.346 of the
regulations. Effective implementation of the Braille provision
in section 300.346 depends to a very large extent upon an
appropriate definition of the population subject to that
provision.
Also, the definition of the phrase, "visual impairment
including blindness" is different from the phrase--"blind and
visually impaired"--which appears in the relevant substantive
provision--section 300.346. It is possible, therefore, that the
definition will not be understood to apply to section 300.346.
It should be noted further that the Act and section 300.346 use
the phrase "blind or visually impaired" in referring to the
children whose needs are addressed in section 300.346. This
phrase--"blind or visually impaired"--is also consistent with
terminology used in more than twenty relevant state laws. The
point is that the use of consistent terminology should help to
some degree in avoiding confusion.
RECOMMENDATION:
(a) Amend section 300.7(b)(13) by striking the phrase "visual
impairment including blindness" and inserting in lieu thereof
"blind or visually impaired."
(b) Provide a statement of clarification by way of an explanatory
note to the effect that this definition is intended to include
children considered to be "blind or visually impaired" under an
applicable state law pertaining to the provision of Braille
services under an IEP.
(2) Development, review, and revision of IEP--section 300.346
Paragraph (a)(2) of this section includes the requirement
for the provision of Braille services for a blind or visually
impaired child unless the team determines that such services are
not appropriate. This factor for a blind child was included in
the amendments in response to the widely acknowledged problem of
declining literacy skills among blind children.
Also, the language of the Braille services factor was chosen
deliberately to reverse the decline in Braille instruction and
use for blind children. Therefore, a great deal of significance
should be attached to the word "provide" at the beginning of the
clause in question. By comparison, it should be noted that each
of the other special factors listed in paragraph (2) is headed
with the term "consider." If Congress had wanted the IEP team to
have essentially the same degree of discretion in regard to
Braille as compared to the other factors, the clause would have
been headed with "consider" not "provide."
In the case of the special factors other than for the child
who is blind or visually impaired, the IEP team is directed to
consider the child's needs in regard to the factor in question.
By implication, the team would then be required to provide for
the service, device, or program needed in order to achieve FAPE
(Free Appropriate Public Education) for the child. In fact, the
subsection concerning review and modification of the IEP
specifies this.
By contrast, in the case of a child who is blind or visually
impaired, the IEP team must provide for instruction in Braille or
the use of Braille unless the team decides that these services
are not appropriate. The contrasting approach taken in this
clause is not just in semantics. That is, lacking an affirmative
finding by the team that Braille services are not appropriate,
the IEP must go to the operative default word, which is
"provide."
The team's scope of discretion in deciding whether Braille
services are appropriate is also circumscribed to a very
considerable degree by the law. Hence the determination must be
based on a specific evaluation of the child's reading and writing
skills, needs, and appropriate reading and writing media. The
evaluation must also include an evaluation of the child's future
needs for instruction in Braille or the use of Braille.
Then, when the team has completed the procedures required in
this clause, a decision can be made. If no decision or
determination is made at this point, then the operative
requirement of the law as stated in this clause is "provide." A
decision not to provide could be made, but this would have to be
an affirmative reversal.
In short, the team's responsibility in regard to this
particular factor should be understood as the discretion to grant
(or not to grant) a waiver. Without the waiver, the operative
word is "provide."
RECOMMENDATION:
(a) Amend section 300.346(a)(2) by adding to the accompanying
notes an explanation to the effect that "provide" means provide
with the proviso that discretion to grant an exception from the
general rule may be exercised in a limited number of
circumstances where an exception is appropriate.
(b) Include in the note on this factor a statement to the effect
that the provision of other appropriate services relating to the
use of reading and writing media for the child may not be used as
a reason for the team to determine that instruction in Braille or
the use of Braille is not appropriate for the child. The note
should state affirmatively that "the child may not be denied
Braille services on the basis that modified reading and writing
media, other than Braille, are being provided.
David Andrews (dandrews@visi.com)
or BBS: (telnet to nfbnet.org) or call (612) 696-1975
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