The Virginia State Board of Education is considering proposed Regulations Governing the Operation of Private Schools for Students with Disabilities.   These regulations would govern the use of restraint, seclusion, and aversives with children with disabilities.

As currently drafted, they would permit practices that can injure, traumatize, and even kill students.  They would permit dangerous and cruel aversives that harm students.  They would allow prone restraint and other restraints that impede breathing.  They do not fully protect parent’s right to know or to be able to have a debriefing where they work with the school to make changes.  Children have died and been injured in restraint and seclusion.  They are so dangerous that they must be limited to emergencies where they are absolutely necessary to protect someone from physical harm.  But the proposed regulations have ambiguities that would permit their use in other situations.

The Virginia Coalition of Students with Disabilities is urging people with disabilities, family members and other advocates to share their views with the Virginia Board of Education. The Coalition has developed public comment on the proposed Regulations.

>> Listen to an interview on this topic with Emily Drefus on Charlottesville Right Now. 5-14-13

ACTION NEEDED!

INDIVIDUALS:
We are asking individuals to write to the Board of Education at BOE@doe.virginia.gov and send the one paragraph email below to them.  Or write your own letter sharing your concerns with the Board of Education.

I support the comments of the Virginia Coalition of Students with Disabilities regarding the Virginia Department of Education’s proposed Regulations Governing the Operation of Private Schools for Students with Disabilities.  As currently drafted, the proposed regulations could allow dangerous restraint, seclusion, and aversive practices that can injure, traumatize, and even kill children with disabilities. The GAO has documented the deaths of 20 children from restraint; other children have died and been injured in seclusion.  The regulations should ban restraints that threaten life or impede breathing, including prone restraint.  Restraint and seclusion should be used only in emergencies where they are absolutely necessary to prevent physical injury to someone.  They should never be part of student’s behavioral plans.  Parents should receive oral and written notice of their use, and be part of a debriefing process.  Restraints should never stop children from communicating medical distress.  VDOE should restore the initial proposal to ban aversive stimuli—such as chemical sprays, electric shock, placing children in freezing cold, and excessively loud noises.  Aversives are painful, inhumane, and should never be used.  Please protect children with disabilities from these dangerous practices and adopt the Coalition’s comments.

ORGANIZATIONS:
We are asking organizations (state, national, or local), to write a letter to VDOE and to also sign the Coalition’s comments.  Our comments will be going to the members of the Board of Education and the Superintendent.  We would like to have a number of organizations signed on to show the strong support for our comments.  Please go http://www.surveymonkey.com/s/Y55KKLQ to sign on to the Coalition comments. This site allows us to download sign-ons into an Excel spreadsheet.  Please sign on an organization only if you are authorized to do so.  Your organization will be included with the Coalition’s comments if we receive your response by Tuesday, May 21, 5pm. This survey Monkey sign-on is only for organizations. It is very important for individuals to send an email directly to the Board of Education.  Your views as constituents are important and they need to hear directly from you.

Thank you for your action on this important issue.

Maureen Hollowell
Virginia Coalition for Students with Disabilities
Ph: 757-351-1584
mhollowell@endependence.org

The updated version of How Safe Is The Schoolhouse? An Analysis of State Seclusion and Restraint Laws and Policies, written by Jessica Butler, has been published by the Autism National Committee.  The report is dated 3/30/2013 and is available at
http://www.autcom.org/pdf/ HowSafeSchoolhouse.pdf

The report finds that:

• Only 12 states by law limit restraint of all children to emergencies threatening physical danger for all children; 17, limit restraint of children with disabilities in this way.  Only 9 states protect all children from non-emergency seclusion (1 by banning it entirely); only 15 protect children with disabilities from non-emergency seclusion. 33 states lack laws requiring that parents of all children be informed of restraint/seclusion; 22, lack them for children with disabilities.

• Restraints that impede breathing and threaten life are forbidden by law in only 18 states for all children; 25 states, for children with disabilities.  Children locked in closets and rooms unobserved have been killed and injured, when staff are not watching them.  But 29 states allow schools to seclude children with disabilities without requiring staff to continuously watch them; the number rises to 39 for all children. Mechanical restraints include chairs and other devices that children are locked into; duct tape and bungee cords, ties, rope, and other things used to restrain children; and other devices.  Only 14 states ban mechanical restraint for all children; 18, for all children.  Only 13 states ban dangerous chemical restraints for all children.

• In general, 17 states have statutes or regulations providing meaningful protections against restraint and seclusion for all children, 30 for children with disabilities.  These have the force of law and must be obeyed.  Even these states offer varying protections, with key safeguards present in some states and missing in others.  In addition, 2 states have laws protecting against one procedure but not the other.  8 have very weak laws (e.g., Nebraska’s regulation instructs school districts to adopt any policy they choose and imposes no requirements whatsoever); and 12 have nonbinding, suggested guidelines that have no legal force and that are more easily changed by the State Department of Education.

• In December 2009, Congressman George Miller introduced the first national  restraint/seclusion bill, and in 2011, Senator Harkin introduced a similar bill.  Together, the Miller and Harkin bills have had a substantial impact, causing states to adopt and strengthen restraint/seclusion laws to incorporate several of their features.  14 states have either adopted new laws (statutes/regulations) or substantially overhauled existing laws to incorporate their requirements.  For example, 11 incorporate the requirement that physical restraint may not be used unless there is an imminent danger of physical injury for children with disabilities, and 9 for all children.  Since the Harkin bill was introduced, 3 states have added requirements that restraints not prevent a child from communicating that he/she is in medical distress (e.g. cannot breathe).   Of the 20 students who died in the GAO report, at least 4 verbal children told staff that they could not breathe.  Many children have disabilities that prevent them from verbally communicating.

Since the report was finished, two states acted last week.  Arizona passed a law permitting seclusion for any reason as long as parents consent or for emergencies threatening physical harm without consent.  A handful of states have such unlimited consent laws.  AZ does not limit restraint.  Oregon banned free-standing seclusion cells (boxes).  It already has a comprehensive statute in place.  Neither new action affects the findings above.

Seclusion and restraint are highly dangerous interventions that have led to death, injury, and trauma in children.  The GAO collected at least 20 stories of children who died in restraint.  Neither practice should be allowed when there is no emergency posing a danger to physical safety.  With no single federal seclusion or restraint law, America’s 55 million school children are covered by a patchwork of state laws, regulations, nonbinding guidelines, and even utter silence.

Legislation on seclusion and restraint – the Keeping All Students Safe Act – is expected to be introduced in the 113th Congress by Representative George Miller (D-CA). Congressman Miller’s bill will protect all American schoolchildren from dangerous restraint and seclusion.

Lift a Burden from Special Ed Parents

The welcome lifting of the federal consent decree on Baltimore City Public Schools does not mean that all is well for students with disabilities in Baltimore and Maryland — far from it. Yet the General Assembly rarely pays any attention to the fact that special education isn’t nearly special enough. Hopefully that will change. Pending legislation gives lawmakers a chance to at least take a small step to improve the education of students with disabilities.

As things now stand, students across the range of disabilities – from intellectual limitations to language impairments to dyslexia – are denied the opportunity to meet academic standards because they are not provided services to which they are entitled under federal and state laws. There are many complex reasons for this.

Money is one of them. Under the federal Individual with Disabilities Education Act (IDEA), services are supposed to provide the “specially designed instruction” that meets the needs of students with disabilities. But in practice, the services of dedicated educators are almost always limited by school budgets.

At the same time, money plays another more pernicious and ultimately more decisive role in the shortcomings of special education: most parents lack the means to assert their rights under IDEA and Maryland law and to challenge the system’s failures. This parental powerlessness is obscured by media stories highlighting lawyers representing well-to-do parents who seek expensive private school placements at public expense, usually for students with the most severe disabilities.

But such challenges are a tiny fraction of instances in which parents are dissatisfied and frustrated. Students with disabilities in Maryland and nationwide come from significantly poorer families than the general student population, and lack the wherewithal to confront the superior resources of the school district. This includes their inability to pursue “due process” administrative appeal hearings if they disagree with the school system.

Such parental powerlessness is the backdrop to bills pending in the General Assembly that would place the burden of proof in administrative hearings on school systems rather than on parents. The bills stem from the divided U.S. Supreme Court opinion in 2005, Schaffer v. Weast. The court held that under federal law, the burden rested on the parent, but the ruling made clear that states were individually free to impose the burden on school systems, and numerous states do.

Maryland, to its discredit, is not one of them, perhaps because the Schaffer case involved the Montgomery County school system. But that is no excuse. Rather the General Assembly has not acted because of the muscular opposition of local school systems who want to preserve their substantial advantage in administrative hearings.

The Supreme Court decision siding with school districts was partially grounded in Justice John Paul Stevens’ concurring opinion that “we should presume that public school officials are properly performing their difficult responsibilities” under special education laws. But this presumption is totally out of touch with the realities of special education, and it ignores the imbalance in power between parents and schools.

Justice Ruth Bader Ginsburg in dissent pointed out that school districts are resistant to challenge, and command huge advantages: “the school has better access to relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child’s education), and greater overall education expertise than the parents.” Further, the costs of administrative appeals – lawyers and expert witnesses – are trivial to school system budgets, while beyond the purse of the overwhelming majority of parents. And pro bono lawyers for parents in appeal cases are almost never available.

The burden of proof – to present sufficient evidence and to convince the administrative judge of the validity of the appeal – sounds like a minor legalistic matter. But it has the power to tip the scales of justice one way or the other. Often the evidence relies on subjective judgments, and administrative judges are already predisposed to defer to the supposed knowledge and experience of educators.

But as Justice Ginsburg noted, “school districts striving to balance their budgets…will favor educational options that enable them to conserve resources.” In other words, in violation of their legal responsibilities, schools will balance their budgets in part on the backs of vulnerable students with disabilities.

The burden-of-proof legislation in the General Assembly is only a small reform. But it will help to balance the scales of justice in administrative hearings, and will send a larger message that school districts must do more to bear the overall burden of improving special education. At the least, the legislation will take one burden off the backs of parents and students with disabilities.

This opinion piece appeared in the Baltimore Sun, March 4, 2013. The writer is Kalman R. Hettleman. He can be reached at  khettleman@gmail.com

PARCC – the 22-state consortium working together to develop next-generation K-12 assessments in English and math – has released draft policies regarding writing accommodations policies for your comments until February 20, 2013.

States in the PARCC consortium are: Arizona, Colorado, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and Tennessee.

To submit your comments go to the survey form.

The Collaboration to Promote Self-Determination suggests the following comments.

****Click on NO for all questions re supporting the PARCC policies****

Writing Access Accommodation Policy: Scribe

6. I support the draft scribe accommodation policy for students with physical disabilities that impede the motor process of writing.

• Yes

• Yes, with edits

•  No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft policy applies only to those students who are found eligible under the Individuals with Disabilities Education Act (IDEA). However, under the ESEA students covered by both IDEA and Section 504 of the Rehabilitation Act of 1973 must be provided with appropriate accommodations.

Terms such as “students with a physical disability” should not be used as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  PARCC states that the use of a scribe will not invalidate constructs measured on the PARCC ELA/literacy assessments. The accommodation shouldn’t be limited to ELA/literacy assessments because it is unlikely to invalidate constructs measured on the math assessment either.

The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason

Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973. Students who do not meet the PARCC scribe criteria may still need the accommodation in order to demonstrate the full extent of their knowledge through written expression.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature.  We encourage PARCC to work with the disability and assistive technology experts to revise this policy.

Writing Access Accommodation Policy: Scribe

7. I support the draft scribe accommodation policy for students with disabilities that significantly impact the area of written expression.

• Yes

• Yes, with edits

•  No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft policy applies only to those students who are found eligible under the Individuals with Disabilities Education Act (IDEA). However, under the ESEA students covered by both IDEA and Section 504 of the Rehabilitation Act of 1973 must be provided with appropriate accommodations.

Terms such as “disabilities that significantly impact the area of written expression” should not be used as doing so risks making determination of need for accommodations contingent upon the degree of disability, as opposed to whether the accommodation would allow a student to demonstrate their knowledge more fully. PARCC states that the use of a scribe will not invalidate constructs measured on the PARCC ELA/literacy assessments. The accommodation shouldn’t be limited to ELA/literacy assessments because it is unlikely to invalidate constructs measured on the math assessment either.

The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason

Providing specific “conditions” related to instructional interventions or IEP goals that must be met in order for a student to be provided the needed accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Teams and/or Section 504 Team. Failure to ensure that such a student has an opportunity to demonstrate his/her knowledge and skills of the Common Core Standards as all other students would deprive the student of comparable benefits and services under 34 C.F.R. §104.4. While the particular items addressed in these conditions are certainly desirable, a student’s rights cannot be limited by their existence, particularly when the student has no control of these.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature.  We encourage PARCC to work with the disability and assistive technology  experts to revise this policy.

Writing Access Accommodation Policy: Scribe

8. The proposed scribe accommodation policy is consistent with the policy my state currently offers.

• Yes

• No

• Unsure

    Other:  N/A for National coalition

Writing Access Accommodation Policy: Word Prediction

9. I support the draft word prediction accommodation for students with disabilities who have difficulty producing text due to the speed with which they are able to enter keystrokes.

• Yes
• Yes, with edits
• No

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft word prediction policy is overly restrictive. Accommodations must be made available to both IDEA and Section 504 eligible students. A term such as “student with a specific disability” should not be used as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason. Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature. Since the PARCC assessment is in an online form, the motor skills required for written expression have already been changed from “handwriting” to “keyboarding.”  Assuming there would be very few if any test items that were intended to solely measure keyboarding speed/skill, there should be no restriction on students using any kind of alternative computer input device to support keyboarding efficiency.

We encourage PARCC to work with the disability and assistive technology experts to revise this policy.  Word prediction interventions are now a common feature within most computer-based systems, software applications, as well as routinely found in search technologies, text messaging, etc. Given its common “real world” usage, it should be considered as a widely allowable if not universal accommodation on assessments.

Word prediction software varies considerably. Students who have access to robust programs such as Co-Writer by Don Johnston for use in their class work and teacher-made tests would need to be provided with the same software for use in assessments. Providing Word Prediction software with which the student is not familiar would actually hinder the student’s performance, lead to frustration and diminished equity.

Writing Access Accommodation Policy: Word Prediction

10. I support the draft word prediction accommodation policy for students with disabilities that impede language processing and/or recall.

• Yes
• Yes, with edits
• No
  

Explain why you do not support the policy. You may reference such topics as construct validity, impact on instruction, impact on reporting results, grade span for which the accommodation is allowed, etc.

The draft word prediction policy is overly restrictive. Accommodations must be made available to both IDEA and Section 504 eligible students. A term such as “student with a significant disability” should not be used, as doing so risks making determination of need for accommodations contingent upon the disability categories used to determine eligibility for IDEA.  The IEP team is charged with making accommodations decisions for all IDEA-eligible students every year, as part of the annual IEP process. Therefore, to attempt to limit “a priori” which students are “eligible” for a particular accommodation impedes the IEP team’s responsibility and would likely be considered a violation of IDEA for this reason. Placing similar eligibility limitations on the Section 504 team would also likely be considered a violation of the Rehabilitation Act of 1973.

Providing specific “conditions” related to instructional interventions or IEP goals that must be met in order for a student to be provided the needed accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Teams and/or Section 504 Team. Failure to ensure that such a student has an opportunity to demonstrate his/her knowledge and skills of the Common Core Standards as all other students would deprive the student of comparable benefits and services under 34 C.F.R. §104.4. While the particular items addressed in these conditions are certainly desirable, a student’s rights cannot be limited by their existence, particularly when the student has no control of these.

It is PARCC’s overarching responsibility- as a test developer- to individually review each test item to show with undisputed evidence that use of such accommodation(s) will fundamentally alter the test construct. This is a key element of a universally designed assessment. We believe all access features should be available without restriction until there is consistent evidence that a particular test item is fundamentally altered by use of such feature. Since the PARCC assessment is in an online form, the motor skills required for written expression have already been changed from “handwriting” to “keyboarding.”  Assuming there would be very few if any test items that were intended to solely measure keyboarding speed/skill, there should be no restriction on students using any kind of alternative computer input device to support keyboarding efficiency.

We encourage PARCC to work with the disability and assistive technology experts to revise this policy.  Word prediction interventions are now a common feature within most computer-based systems, software applications, as well as routinely found in search technologies, text messaging, etc. Given its common “real world” usage, it should be considered as a widely allowable if not universal accommodation on assessments.

Word prediction software varies considerably. Students who have access to robust programs such as Co-Writer by Don Johnston for use in their class work and teacher-made tests would need to be provided with the same software for use in assessments. Providing Word Prediction software with which the student is not familiar would actually hinder the student’s performance, lead to frustration and diminished equity.

Writing Access Accommodation Policy: Word Prediction

11. The proposed word prediction accommodation policy is consistent with the policy my state currently offers.

• Yes
• No
• Unsure There is no choice for “other” as there usually is for the question about state policy so just put “unsure”
  

Final Comments
Please use this space to provide any other comments not addressed in previous questions.

The PARCC Accommodations Manual should be developed so as to have applicability for both through-course and summative assessments. Students must be assured of the consistent availability and application of accommodations on all aspects of assessments designed to measure College and Career Readiness.

A new report from the Alliance for Excellent Education (AEE) show that only a few states that have received ESEA waivers from the U.S. Dept. of Education are fully implementing the 2008 graduation rate regulations for accountability purposes.

Among the important elements of the 2008 regulations that are being lost is accountability for graduation rates of student subgroups – including students with disabilities. According to the AEE report, eleven states have weak or no subgroup graduation rate accountability. Details for each of these states are below and also found in Appendix B of the AEE report. The state’s 4-year adjusted cohort rate for graduation with a regular diploma for students with disabilities appears in RED (all states available here).

See if your state is on this list!

No Subgroup Graduation Rate Accountability

1. In Arizona, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Arizona Department of Education, “ESEA Flexibility Request,” 43, 50–51). 67%

2. In Kentucky, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Kentucky Department of Education, “ESEA Flexibility Request,” 42, 76–77). (Not available)

3. In New Jersey, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Subgroup graduation rates are included in School Performance Reports; however, these reports do not trigger improvement requirements (New Jersey Department of Education, “ESEA Flexibility Request,” 34–36, 38, 52). 73%

4. In New Mexico, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (New Mexico Public Education Department, “ESEA Flexibility Request,” 42, 45). 47%

5. In North Carolina, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification (North Carolina Department of Public Instruction email message to Alliance for Excellent Education, November 19, 2012). 57%

6. In Rhode Island, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Additionally, subgroup graduation rates are not included in the state’s accountability index (Rhode Island Department of Elementary and Secondary Education, “ESEA Flexibility Request,” 49). 58%

Weak Subgroup Graduation Rate Accountability

7. In Michigan, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability system, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (Michigan Department of Education, “ESEA Flexibility Request,” 57–58, 60–61, 130–33). 52%

8. In Minnesota, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability index, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (Minnesota Department of Education, “ESEA Flexibility Request,” 89, 120–21). 56%

9. Nevada limits subgroup accountability to (1) students with an Individualized Education Plan, (2) students with limited English proficiency, and (3) students who qualify for free and reduced-price lunch; Nevada’s approved waiver application does not include subgroups based on race or ethnicity (Nevada Department of Education, “ESEA Flexibility Request,” 63, 118). 23%

10. In Oklahoma, focus school identification is limited to two subgroups and subgroup graduation rate accountability is not included in the state’s accountability index (Oklahoma State Department of Education, “ESEA Flexibility Request,” 34, 80). (Not available)

11. In South Carolina, a low subgroup graduation rate, or gap, does not trigger priority or focus school identification. Although subgroup graduation rates are included within the accountability index, the graduation rate for a single subgroup does not carry sufficient weight to trigger improvement interventions (South Carolina Department of Education, “ESEA Flexibility Request,” 57–58, 119). 39%

Note: Page numbers refer to the location within the approved waiver application that would likely include information on subgroup graduation rate accountability if the state were to include subgroup graduation rates in the accountability system.

Get the full AEE report, The Effect of ESEA Waiver Plans on High School Graduation Rate Accountability (PDF).

The Advocacy Institute has identified a number of issues pertaining to students with disabilities in the context of ESEA waivers given to 34 states + D.C. by the US Dept. of Education (as of February 1, 2013). These issues have been communicated to disability organizations and members of Congress. It should be noted that not all issues pertain to all states that have been given a waiver.

For information on the status of ESEA waivers, visit the U.S. Dept. of Education’s ESEA Flexibility website.

ISSUE 1: Loss of Subgroup Accountability for Test Participation

Current law requires schools and districts to assess at least 95% of all students in tested grades and for every student subgroup, including students with disabilities, in order to achieve Adequate Yearly Progress (AYP). This requirement has been especially helpful to students with disabilities, who, despite an IDEA requirement to be included in testing, have been routinely left out of testing and/or given tests designed for students in lower grades (a practice known as “out of level testing”). The National Center on Educational Outcomes has documented the significant increase in test participation that has occurred across states for students with disabilities since enactment of No Child Left Behind.

While some states have maintained test participation requirements at the same level of rigor in state accountability systems (i.e., keeping the 95% participation requirement as a threshold for all schools), other states have departed from this level of rigor. For example, under Colorado’s plan, a school or district that does not meet the 95% participation rate in more than one subgroup is subject to a lower rating in the accountability system. This type of relaxation of the requirement in current law can lead to significant numbers of students with disabilities being excused from testing. It should be noted that some state applications are unclear regarding test participation, making it difficult to determine whether the rigor of current law will be upheld.

 –> See our analysis of test participation requirements in the state plans of the first eleven states receiving ESEA waiver.

ISSUE 2: Loss of Subgroup Accountability for Performance

Many states have created new consolidated subgroups as part of their accountability systems approved under the ESEA Flexibility program. These groups—frequently referred to as “super groups”—combine the performance results of several subgroups in current law, often low-income, English language learners, and students with disabilities, with no student counting more than once. While this approach may result in more schools being held accountable, particularly small schools that otherwise escape accountability due to “n” size thresholds, it can also result in masking the performance of the individual subgroups being combined. It also suggests that a student with one challenge, say limited English, has the same needs as a student with multiple challenges, when in fact this is not the case.

The use of consolidated groups to identify schools in need of improvement (Priority, Focus) also dilutes the impact any one subgroup can have on a school’s status and is likely to lead to decreased focus on needy students, including students with disabilities.

ISSUE 3: Differentiated Achievement Targets

While current law requires Measureable Annual Objectives or AMOs to be the same for all schools, districts, and student subgroups, the ESEA Flexibility relaxed this requirement and allowed states to set new AMOs using a variety of approaches. While all of the approaches required a greater rate of improvement for those furthest behind, the resulting AMOs continue to limit the expectations of students with disabilities, who are often the lowest performing group.

Almost all states elected to establish achievement targets that vary by student subgroup. Some of the states that have taken the differentiated target approach for subgroups have also elected to set AMOs for every school in the state. This approach to customized AMOs will result in all schools and districts being challenged to improve, both overall and for every subgroup, while states that have established subgroup AMOs that apply to all schools will have large numbers of schools exceeding the targets and many schools for which the targets are completely out of reach.

ISSUE 4: Decreased Focus on Graduation Rates

While U.S. ED has clearly stated that ESEA Flexibility did not waive the requirements for graduation rates set forth in the 2008 ESEA federal regulation, states have received approval of state accountability plans that clearly do not uphold these requirements.

Among the problems identified are: graduation rate counting too little within the state’s system; inadequate expectations for improvement; lack of accountability for student subgroups.

As recently illustrated by the 4-year cohort graduation rate data released by U.S. ED (see http://www2.ed.gov/documents/press-releases/state-2010-11-graduation-rate-data.pdf) there is significant disparity across student subgroup in many states. Only by focusing attention to these disparities will improvement occur.

ISSUE 5: Limited Interventions

The ESEA Flexibility requirement to identify the lowest performing Title I schools in the state as in need of comprehensive interventions (Priority Schools) and another group (Focus Schools) with greatest gaps in achievement or graduation rates in need of targeted interventions leaves many schools with large groups of failing students without any requirement to undertake improvement activities. This limited intervention approach could be particularly harmful to students with disabilities, since they are not likely to be highly concentrated in the lowest performing schools in the state.

ISSUE 6: Students with Significant Cognitive Disabilities Excluded from Growth

All states receiving ESEA Flexibility intend to incorporate a measure of student growth into their state accountability systems. However, some states have indicated that students with the most significant cognitive disabilities who participate in state assessment systems via an Alternate Assessment on Alternate Achievement Standards will not be included in growth calculations.

This exclusion of a portion of students with disabilities raises concerns regarding their rights under Section 504 as well as the IDEA. States should be required to include all students in all aspects of their state accountability systems.

ISSUE 7: Transitioning Students with Disabilities from the Alternate Assessment on Modified Achievement Standards to the Regular Assessment

States with approved ESEA Flexibility applications are required to end the use of the Alternate Assessment on Modified Academic Achievement Standards (AA-MAS) currently allowed by ESEA Federal regulations (§ 200.1(e)). While this is viewed as a positive move—putting those students currently assessed using the AA-MAS on a course to better ensure access to the general curriculum and a regular high school diploma—it also poses a significant risk if not handled properly.

States that must discontinue use of the AA-MAS as a condition of their waiver are: CT, GA, IN, KS, LA, MD, MI, MN, NC, OK, TN, VA.

The U.S. ED should provide states required to discontinue an AA-MAS with technical assistance to assist with planning and implementation. A review of states’ plans to accomplish this transition should be incorporated into U.S. ED’s monitoring of ESEA Flexibility.

–> Read more about ESEA Waivers:

Education Trust: A Step Forward or a Step Back? State Accountability in the Waiver Era

Center on Education Policy: NCLB Waivers and Accountability

Collaborative to Promote Self-Determination: Press Release on occasion of Senate hearing Feb. 7, 2013

PARCC NEEDS TO HEAR FROM YOU!

Submit comments on PARCC’s
Draft Policies on Reading Access Accommodations &
Calculator Accommodations for Students with Disabilities

BY FEBRUARY 4, 2013

BACKGROUND

• The Partnership for Assessment of Readiness for College and Careers (PARCC) is a 22-state consortium working together to develop next-generation K-12 assessments in English and math aligned to the Common Core State Standards. PARCC received a $186 million grant through the U.S. Department of Education’s Race to the Top assessment competition to support the development and design of this next-generation assessment system.

• PARCC states educate 3 million students with disabilities-over half of all students with disabilities in the nation.

• PARCC states are: Arizona, Arkansas, Colorado, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and Tennessee.

• PARCC assessments will be implemented beginning in the 2014-2015 school year.

• PARCC must develop a common set of policies and procedures for states to use in providing accommodations to students with disabilities.

• PARCC invites public comment on two draft policies that will be part of a larger Accommodations Manual to be released later this year. These policies pertain to the reading access accommodation and the calculator use accommodation.Comments must be submitted by February 4, 2013.

Get full text of draft policies and link to survey form for comment submission here. Use this sample survey to assist in submitting your comments!

Here are some suggested talking points to use when submitting comments:

In general:

• The draft policies are premature since the assessments themselves are still in development.
• The draft policies don’t reflect the possibilities of computer-based, technology-enhanced, universally designed assessments envisioned by the U.S. Dept. of Education and promised by PARCC.
• The draft policies only apply to summative assessments (tests given at the end of instruction) and not to tests given through the year (sometimes called formative assessments), yet students need consistent access to accommodations on all assessments.
• The draft policies are overly restrictive and overly prescriptive, imposing narrow definitions of students who would be in need of these accommodations then further restricting access by requiring certain conditions to be met in order to receive the accommodation.
• The specific “conditions” that students must meet in order to be provided the accommodation would violate the student’s rights under Section 504 of the Rehabilitation Act of 1973. A student with a disability who is eligible under IDEA and/or Section 504 cannot have his/her right to participate meaningfully in an assessment provided to all other students conditioned upon actions of the student’s IEP Team.

Reading Access Accommodations (commonly known as text to speech or read-aloud):

• The draft policy demands overly restrictive level of reading in order to access, student must be a “virtual non-reader,”(i.e., at the beginning stages of learning to decode) or blind/visually impaired and unable to read braille.

Calculator Accommodations:

• The draft policy demands overly restrictive level of math in order to access, student must be “unable to calculate single-digit numbers (i.e., 0-9) without a calculation device, using the four basic operations of addition, subtraction, multiplication, and division.

Provide feedback through a survey posted on the PARCC website, answering questions specific to each policy – Reading Access Accommodations and Calculator Accommodations.

Use this sample survey to assist in submitting your comments!

COMMENTS SUBMITTED TO PARCC:

Collaboration to Promote Self-Determination

Consortium for Citizens with Disabilities

National Center for Learning Disabilities

CAST

Center for Law and Education

The U.S. Dept. of Education has released the first round of high school graduation rate data compiled based upon the common measure known as the “four-year adjusted cohort rate” required by a 2008 federal regulation.

The four-year adjusted cohort graduation rate is the number of students who graduate in four years with a regular high school diploma divided by the number of students who form the adjusted cohort for the graduating class. From the beginning of 9th grade (or the earliest high school grade), students who are entering that grade for the first time form a cohort that is “adjusted” by adding any students who subsequently transfer into the cohort and subtracting any students who subsequently transfer out, emigrate to another country, or die.

For the first time, graduation rates can be compared across states and across student groups, such as students with disabilities. Graduation rate data for all states and all student groups is available here.

Below is a comparison of the graduation rate for all students and students with disabilities by state (note: data for ID, KY, OK, and PR are not available).

Some highlights:

• Graduation rates for students with disabilities range from a high of 84% (SD) to a low of 23% (MS and NV)
• Mississippi has the largest gap in graduation rates at 52%
• Seven states have graduation gaps of 35% or greater (MS, AL, LA, NV, GA, SC, VA)
• Twenty-five states have graduation gaps of 20% or greater

UPDATE: The U.S. Dept. of Education declined California’s request for an ESEA waiver on January 4, 2013. The letter to the president of the California Board of Education is available here.

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Most Californians are unaware California recently asked U.S. Department of Education for a waiver of provisions of “No Child Left Behind” (NCLB) claiming:

• NCLB performance targets are “unrealistic”;

• Funding and control should be returned to California’s schools; and

• California’s “robust” accountability system ensures continuing progress for ALL California’s students.

Unfortunately, California’s request failed to mention:

• NCLB targets – hardly unrealistic – align with IDEA’s goals of high expectations and appropriate educational services to ensure students with disabilities (SWD) become productive members of society;

• California has no evidence that returning funding and control to local education agencies (“LEA”) will improve outcomes;

• California’s current education crisis arose under these same LEAs;

• Despite significant federal stimulus funding to LEAs significant improvement in outcomes for SWD or general education students has not resulted; and

• There is no evidence California’s accountability system will improve or affect substantive educational outcomes.

California also didn’t mention that many SWD are not making appropriate progress under California’s educational programming; SWD are not appropriately assessed or held to standards ALL California students must meet for graduation (passage of California’s high school exit exam (CAHSEE)); while California’s service delivery system is in disarray.  Yet, California wants even less accountability under NCLB!

An entire generation of children born at CAHSEE’s passage in 1999 has passed through California’s K-12 system, yet California still cannot properly measure all students’ access or progress in state standards. A failure of accountability under NCLB, this also denies student rights under IDEA. Even by the relatively low standard in Rowley, a special education case which measures FAPE by students successfully passing from grade to grade, this seems a prima facie denial of FAPE for California SWD unable to pass the CAHSEE.

In 2000, Assistant Secretary Judith Heumann said: “Because of the benefits that accrue as the result of assessment, exclusion from assessments on the basis of disability generally would violate Section 504 and ADA.”  California appears to annually violate Section 504, ADA, NCLB and IDEA, yet continues to receive federal funding.  If California performs this poorly with accountability obligations, what will happen if accountability obligations are waived? 

Despite US ED guidance requiring states to engage with and solicit input from appropriate stakeholders, California failed to do so.  Instead its request simply “disappeared” SWD.  Given California’s history with SWD this isn’t surprising.  Parents and advocates must hold state and federal education agencies accountable for the educational progress of ALL our children and ensure SWD are “disappeared” no more.

Deborah Blair Porter
October 5, 2012

Click here to read Deborah Porter’s letter to the U.S. Department of Education regarding California’s ESEA flexibility request.

Following the firestorm over the annual measurable objectives (AMOs) released by the Virginia Dept. of Education back in July and the letter from the U.S. Dept. of Education instructing VDOE to re-do those AMOs, VDOE has released new AMOs for consideration by the Virginia Board of Education at its September 27, 2012 public meeting. The full AMO proposal is available here.

The initial AMOs proposed by VDOE, using a faulty methodology initially approved by USED, were judged unacceptable because they did not result in any significant closing of the achievement gap between low performing students and those performing better; generally Black, Hispanic, low-income, students with disabilities and students with limited English proficiency show significant gaps in achievement in reading and math. While no student group showed significant closing of the gap under the initial AMOs (see Virginia AMO Fact Sheet for details), the African-American community showed the strongest opposition, expressing outrage to the bias of setting lower expectations for students by race. Their actions generated lots of press and helped drawn national attention to the issue.

In its letter to VDOE, the U.S. Dept. of Education instructed the state to identify an alternate methodology that will result in AMOs that require subgroups that are further behind to make greater rates of progress. Has VDOE adequately responded to this direction? It would appear not.

At issue:

-       While USED clearly stated that the initial methodology must be revised, VDOE has applied the same methodology to establish the starting pass rates for all student subgroups as well as the “all students” AMOs for every year through 2017. This approach results in the starting pass rates being set LOWER – in some cases much lower than the actual pass rates for the 2011-2012 school year. See the chart below for a comparison of the actual pass rates for each student group on the Virginia Mathematics assessment in 2011-2012 versus the starting AMO (pass rate) for the same year. In every case the AMO is lower than the actual pass rate, and for English Language Learners it is a full 20 points lower.

The options for setting new AMOs provided to states seeking ESEA flexibility revolve around setting the start point for pass rates using the proficiency rates on2010-2011 assessment  (for Principle 2.B, Options A and B) or another method that is educationally sound and results in ambitious AMOs. (VDOE claimed that it could not use results from the 2010-2011 assessments because the state is in the process of implementing new standards of learning assessments in Math (2011-2012) and Reading (2012-2012))

A comparison of the new AMOs and AMOs that would result from using USED’s Option A is below:

All students: 84 vs.  73 
White: 87.5  vs. 73
Asian: 93.5  vs. 73
Low income: 79  vs. 73
ELL: 85.5  vs. 73
Students with disabilities: 70  vs. 73
Hispanic: 80.5  vs. 73
Black: 76  vs. 73

-        The new AMOs appear to ONLY apply to a school (or a subgroup within a school) that had a pass rate LOWER than the AMOs, as VDOE now states that every school is expected to meet either the AMO or the school’s previous year’s pass rate, whichever is higher (up to 90%). This will prove extremely confusing for the public, and likely even for schools themselves. Additionally, it would be helpful to know roughly how many schools would be in this position. A better approach, which is allowable under the ESEA waivers, would be for VDOE to set individual AMOs for each school (for all students and each subgroup) – ensuring that every school is challenged to improve while expecting more improvement from those schools with the poorest performance.

-        While the new AMOs for low-performing subgroups appear to be rigorous, it is also made clear that schools may still meet the pass rate via safe harbor, which is a 10% reduction in the failure rate over the year prior, with no correlation to the AMOs. Therefore, exactly where subgroups stand in relationship to the AMOs will be difficult to understand.

Where do we go from here?

VDOE should formulate AMOs using the 2011-2012 proficiency rates, calculated to cut in half the proficiency gap for each student group by 2017, and establish AMOs specific to every school and every subgroup within each school.