March 6, 2006

Troy Justesen
U.S. Department of Education
400 Maryland Avenue, S.W.
Potomac Center Plaza
Room 5126
Washington, D.C. 20202-2641

Dear Dr. Justesen:

The National Center for Learning Disabilities (NCLD) respectfully submits recommendations to the Notice of Proposed Rulemaking (NPRM) regarding the proposed requirements and selection criteria for the Paperwork Waiver Demonstration Program as authorized by Public Law 108-446, 118 Stat. 2647, the Individuals with Disabilities Education Improvement Act of 2004 (IDEA).

NCLD endorses the comprehensive comments and recommendations submitted by the Education Task Force of the Consortium for Citizens with Disabilities (CCD). As an active member of the Education Task Force, NCLD participated in the development the CCD comments and considers them to be thoughtful and responsible. NCLD urges the Department of Education to carefully review the CCD comments and recommendations.

Further, NCLD strongly opposes 1 (e) of the "Proposed Additional Requirements for Paperwork Waiver Program" which states that:

1. (e) If a State is applying for a waiver of any paperwork requirements related to IEPs, assurances that the State will require that (i) any participating local educational agency (LEA) obtain informed consent from the parents before an IEP that does not meet the requirements of 614(d) of the Act is developed for a child; and (ii) before an LEA requests a parent's informed consent, the LEA inform the parent in writing of (A) Any differences between the requirements of section 614(d) of the Act relating to the content, development, review and revision of IEPs and the requirements relating to the content, development, review and revision of IEPs under the State's approved Paperwork Waiver Program proposal; (B) the parent's right to revoke consent to the use of the IEP under the Paperwork Waiver Program proposal at any time; and (C) the LEA's responsibility to conduct, within 30 calendar days after revocation by the parent, an IEP meeting to develop an IEP that meets all the requirements of section 614(d)of the Act.

We submit the attached comments related to this for your consideration and appreciate the opportunity to provide feedback to this important regulation. 

Sincerely,

James H. Wendorf
Executive Director

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Department of Education
RIN 1820-ZA42

The Individuals with Disabilities Education Act Paperwork Waiver Demonstration Program

Subject: Paperwork Waiver Public Comment

National Center for Learning Disabilities Comments - March 6, 2006

Recommendation 1: NCLD recommends that the language contained in 1 (e) be deleted and, in the alternative, add a new provision which states that:

States applying for a waiver must provide assurances that no requirements related to IEPs, IFSPs, Procedural Safeguards Notice or Prior Written Notice will be waived as part of the program. States should utilize the model forms developed by the U.S. Department of Education as a vehicle for addressing excess paperwork associated with these provisions, generally created at the State and/or LEA levels. The Secretary will terminate a State's waiver granted as part of this program if the Secretary determines that the State has violated any requirements related to IEPs, IFSPs, Procedural Safeguards Notice or Prior Written Notice.

Rationale: While, as the NPRM states, the Act "does not provide specificity as to the particular requirements that are not subject to waiver or provide for other requirements that are necessary for implementation of this program" it seems abundantly apparent that Congress did not intend for any requirements related to IEPs to be waived as a part of this project.

Section 609(a)(2)(C) prohibits any pilot program from:

(i) "affect[ing] the right of a child with a disability to receive a free appropriate public education under part B; and
(ii) permit(ting) a State or local educational agency to waive procedural safeguards under section 615 of this title."

Section 602(9) defines a free appropriate public education (FAPE) as "special education and related services that. . . . (D) are provided in conformity with the individualized education program required under section 614(d)

Therefore, it would follow that it would be impermissible to allow any State to waive any requirement imposed by § 614(d) as part of its Paperwork Waiver Program.

Additional evidence that Congress did not intend to authorize the Secretary to waive certain key provisions of the Act, including requirements of Section 614(d) is found at Section 617 which directs the Secretary to [not later than the date of publication of final regulations] publish and disseminate widely to States, local educational agencies, and parent and community training and information centers--

(1) a model IEP form; 
(2) a model individualized family service plan (IFSP) form; 
(3) a model form of the notice of procedural safeguards described in section 615(d); and 
(4) a model form of the prior written notice described in subsections (b)(3) and (c)(1) of section 615 that is consistent with the requirements of this part and is sufficient to meet such requirements.

This directive would seem to establish clear Congressional intent to assist all States in activities to streamline procedures associated with the implementation of the requirements related to IEPs, IFSPs, Procedural Safeguards Notice and Prior Written Notice while recognizing that these four components represent the core of a free appropriate public education. As such, none of these core components should be marginalized through any activities designed to address paperwork reduction.

In addition, studies have shown that changes to the IEP requirements under IDEA are not appropriate mechanisms for reducing paperwork. The SPeNSE longitudinal study clearly showed varying levels of paperwork in different regions of the country even though IDEA requirements are the same in all the regions. Furthermore, participants at a 2002 NASDSE Special Education Paperwork Policy Forum indicated that district rules were often the source of IEP paperwork burdens and that they did not favor changes to the IEP document or the IEP process under IDEA as solutions.

Recommendation 2: NCLD recommends that the proposed notice be revised to prohibit the use of the Paperwork Waiver Program as a vehicle for implementing multi-year IEPs that do not comply with the terms of IDEA Section 614(d)(5), the Multi-Year IEP Demonstration Program. Additionally, the proposed notice should make clear that States receiving awards for both the Paperwork Waiver Program and the Muli-Year IEP Demonstration Program shall not utilize the provisions of the Paperwork Waiver Program to put into place a Multi-Year IEP Demonstration Program that conflicts with the requirements of that program.

Rationale: In crafting the statutory requirements for the Multi-Year IEP Demonstration Program, Congress provided strict criteria for that program, including a requirement that the content, development, review, and revision of the IEP as required under Section 614 (d) apply to participants of the Multi-Year IEP Program. Therefore, it would be contradictory to the intent of Congress for a State to circumvent any of the requirements of 614(d) as part of the Paperwork Waiver Program.

Given that the Act authorized two demonstration programs, each available to 15 States, it would seem apparent that there will be some states that will apply for and receive awards for both programs. While the U.S. Department of Education has made it clear in each of the NPRMs that an application and award for one program does not preclude an application and award for the other, the Secretary has not provided any guidance regarding the obligations of any State that receives awards for both programs. Such guidance should be contained in final notices for each demonstration program and should provide States with information regarding specific activities that are not allowable when executing the two programs concurrently in the same school and district. The Secretary should also consider prohibiting a State that receives awards for both programs from executing both programs in the same school and/or district. Such a prohibition would allow for a more precise evaluation of each program. Results obtained by a school or district commingling the activities allowed under each program would result in a different set of outcomes that would not be comparable to results obtained by a school or district executing one program.