From: David Andrews 
Subject: IDEA Comments (now due)
IMPORTANT NOTICE
     Several weeks ago I distributed information concerning the
notice of proposed rulemaking which the U. S. Department of
Education has published for the purpose of implementing the 1997
amendments to the Individuals with Disabilities Education Act.
The letter which follows is the official comment from the
National Federation of the Blind in response to the proposed
rules.
     January 20, 1998, is the deadline for comments to be
submitted.  If you have not already done so, you should know that
comments can be submitted by e-mail or fax.  Also, comments
received after the closing date are still considered if the
matters addressed have not already been resolved.  This means
that there is still time before the submission would be
absolutely futile.
     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.
     the fax number to use in sending comments is (202) 205-9070.
     Please do what you can to respond to the notice.  This is
our opportunity to make the official record on important points
dealing with special education and Braille services for blind
students.
thanks,
J. G.
the information follows:
                        January 19, 1998
Mr. Thomas Irvin
Office of Special Education and Rehabilitative Services
United States Department of Education, Room 4607
Mary E. Switzer Building
330 C Street, S.W.
Washington, D.C. 20202
               Re: Comments on IDEA Proposed Rules
Dear Mr. Irvin:
     I am writing on behalf of the National Federation of the
Blind in response to the notice of proposed rulemaking published
on October 22, 1997, for the purpose of implementing the
Individuals with Disabilities Education Act (IDEA) amendments of
1997.  The comments in the remainder of this letter are presented
in the order of the sections to which they apply.
(1) Definitions--section 300.7(a)(2)
COMMENT:
     This section allows an LEA to identify a child age 3-9 as
developmentally delayed.  From this definition it can be assumed
that the LEA would not be required to identify any specific
disabilities which may exist but are subsumed under the general
condition of developmental delay.  If this assumption is correct,
the generalized approach which would likely result could lead to
inappropriate services or the failure to meet specific needs.  It
could also result in failing to include some children in
statistical tabulations necessary for particular programs.  For
example, blind children must be correctly identified and counted
at all ages in order for the state to receive its share of
specialized books and materials provided under a federal
appropriation to the American Printing House for the Blind.
RECOMMENDATION:
     In clause (iii), after "term" and before the period, add a
     comma and the following: "the specific disabilities of any
     child in this age range shall be identified whenever
     possible and appropriate services provided."
(2) Definitions--section 300.7(b)(13)
COMMENT:
     The definition contained in this paragraph tends to foster
the misleading impression that visual impairment means some sight
and blindness means no sight whatsoever.  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, and the
statute concerning Braille services for the child who is "blind
or visually impaired."  If the phrase is changed in the
regulations as proposed, it could lead to misunderstanding and
confusion in applying section 300.346 and the underlying statute.
It should also be noted that the phrase as used in the statute is
identical to the phrase "blind or visually impaired" which is
used in laws pertaining to Braille instruction which have already
been enacted by twenty-nine separate states.  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.
(3) Related services--section 300.22
COMMENT:
     Note 2 explains that the listing of orientation and mobility
services for the blind is not intended to result in restricting
the provision of travel training services which may be needed by
children with disabilities who are not blind or visually
impaired.  Without saying so directly, the content of this note
implies that travel training services for children with
disabilities who can see are essentially the same as orientation
and mobility services for the blind and visually impaired.  The
fact is, however, that the instructional methods and professional
disciplines involved are not at all the same for serving these
distinctly different populations.  This point should be clarified
in the note in order to avoid inappropriate service approaches.
Specifically, the possibility that the same personnel could be
assigned to provide orientation and mobility services to the
blind and visually impaired and travel training to others should
be discouraged.
RECOMMENDATION:
     Amend section 300.22 by inserting the following statement
     into Note 2:  "This is not meant to imply that the
     orientation and mobility needs of students who are blind or
     visually impaired are essentially the same as the travel
     training needs of students with disabilities who can see.
     In fact, the needs and professional skills required to
     address them are quite different.  Therefore, the
     distinction between these services must be maintained.
     Moreover, it is expected that separate personnel will be
     assigned to provide appropriate services consistent with
     their training and qualifications."
(4) Personnel standards--section 300.136
COMMENT:
     This section generally appears to require that standards
used for special education and related services personnel must
reflect the highest standards applicable to such personnel in the
state.  While this may appear to be a sound policy in many
instances, it can have some very serious and undesirable
consequences.  The existing approach to the certification of
orientation and mobility instructors for the blind is one
example.
     Certification of orientation and mobility instructors for
the blind has been taken on by the Association for the Education
and Rehabilitation of the Blind and Visually Impaired (AER).
That organization has also worked very closely with the various
professional preparation programs in designing their course
offerings and content to prepare graduates to meet the AER
standards.  As a consequence, the admissions policies of the
professional preparation programs tend to reflect the
certification standards, and these standards will often be seen
as the highest standards applicable in the state.  Until quite
recently, this has meant that qualified blind individuals could
not be accepted into most of the professional preparation
programs because they would eventually be rejected for
certification by AER.
     While that is essentially still the case, there has been
some relaxation more recently on the absolute prohibition of the
admission of blind people into the profession as orientation and
mobility instructors.  Even with the relaxation, however, it is
still fair to say that only a handful of blind students have been
admitted into professional preparation programs and even fewer
have made it so far as to be certified by AER.
     The rationale for refusing to train or certify blind people
as mobility instructors has no factual foundation, and it is not
the purpose of this comment to debate the matter with AER.  The
fact is that regardless of certification, many blind people are
actually employed as mobility instructors in both education and
rehabilitation programs.  When this occurs, the employing agency
has the flexibility to disregard AER certification.  If this
flexibility is removed, very few if any blind people will ever be
able to enter the orientation and mobility profession.  As a
consequence, blind students would then be denied the substantial
benefits of having competent blind role models as instructors.
     The issue being raised here is not a charge of unlawful
discrimination.  If exclusion of blind people from the mobility
instructor profession were clearly unlawful, there would be no
need for a regulation to address this issue.  The fact is,
however, that experts at the Department of Education have tended
to provide vague answers when asked if exclusion of blind people
from this particular profession would constitute discrimination.
Even so, those who are knowledgeable and in authority at the
Department have tended to agree that exclusion of blind people
from the profession is not acceptable--whether or not it is
clearly illegal.
RECOMMENDATION:
     Amend section 300.136 by inserting a new subsection (h) at
     the end thereof to read as follows:
     "(h) To the extent that such standards may screen out or
     tend to screen out individuals with disabilities, the state
     shall assure that such standards will not be utilized."
(4) Development, review, and revision of IEP--section 300.346
COMMENT:
     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.
                              Respectfully submitted,
                              James Gashel
                              Director of Governmental Affairs
                              NATIONAL FEDERATION OF THE BLIND
JG/mrb
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