A New ESEA? Senate/House Bills Offer Little to Like for Students with Disabilities

August 11th, 2015

With passage of bills to reauthorize the ESEA in both the U.S. Senate and the House of Representatives (details here) the likelihood of getting an update to current law – known as No Child Left Behind (NCLB) – seems probable for the first time since NCLB “expired” in 2007. While few supporters stand behind all the original tenets of NCLB, some of its requirements helped improve education for students with disabilities.

However, few states are still operating under NCLB rules, most having obtained ESEA Flexibility from the U.S. Dept. of Education starting back in 2012. The new accountability plans states were allowed to develop under their ESEA Flexibility (to replace Adequate Yearly Progress or AYP) raised many questions about just how students with disabilities would be impacted,  as we laid out in our 2013 report, ESEA Flexibility: Issues for Students with Disabilities.

Now Congress is moving toward a new ESEA that will completely eliminate many of the provisions of current law (maintained in ESEA Flexibility) that have worked to gain needed attention to the specialized services and supports necessary for students with disabilities to benefit. A few are recapped below.

INTERVENING IN LOW PERFORMING SCHOOLS. The overarching issue – for all historically under-performing groups of students including students with disabilities – is the lack of any requirement for states to take action in poor performing Title 1 schools in either the Senate or House ESEA bills. This concern has been best articulated by the Leadership Conference & 41 organizations in their letter to Senate HELP Committee leadership. The Education Trust also stands firmly opposed to this abandonment of accountability and encourages action via its All Kids Matter campaign. Intervention should be required in low performing schools and schools with significant gaps in the performance of student groups/categories.

MAKING STUDENT GROUPS COUNT. A major driver in the identification of low performing schools is the issue of “n” size. Schools and districts are held accountable only for the student groups that meet or exceed this minimum number of students.

For example, if a state established an “n” of 35, a school with only 20 students with disabilities in the tested grades would not be held accountable for this group of students. Under current law and both the Senate and House bills, states will continue to determine the minimum number of students necessary to hold schools and districts accountable for the performance of each student group (called “categories” in the Senate bill) directed only by a requirement for it to be statistical significant and not disclose personally identifiable information. This latitude in determining “n” size resulted in significant numbers of students with disabilities being left out of accountability systems. A 2013 report, The Inclusion of Students with Disabilities in School Accountability Systems, found that as many as 85% of students with disabilities in one state (AZ) were excluded from accountability systems due to “n” size.

One glimmer of hope in getting states to be more responsible in setting “n” size is contained in the Senate bill (Title I, Sec. 1016). It requires the U.S. Dept. of Education to publish a report on “best practices for determining valid, reliable, and statistically significant minimum numbers of students for each of the categories of students for the purposes of inclusion as categories of students in an accountability system.” Presumably states would look to information in this report to determine “n” sizes going forward. However, there is nothing binding about this and furthermore, it is not specified in either bill that the “n” size must be the same for all student groups/categories (as is the case in current law).

MAKING TEST PARTICIPATION MATTER. Three important issues here:

(1) While both the Senate and House bills include a requirement that schools and districts test a minimum of 95% of all students and a minimum of 95% of each student group/categories, neither bill puts the same emphasis on this requirement as does current law (failing to reach the 95% testing threshold was automatic failure of the school regardless of academic achievement). The feracity of this provision was also relaxed in some of the accountability plans approved under the ESEA Flexibility program (discussed in our report, ESEA Flexibility: Issues for Students with Disabilities).  Simply maintaining the requirement while not assigning any weight to it within the accountability system is likely to result in diminished attention to ensuring the testing of all students. (More about this from our friends over at Third Way.)

(2) Another threat to this provision is found in the House bill which provides that students who are “opted out” of testing – in states that allow such parental action – will not be counted against the school or district for purposes of the participation rate requirement. (More on state opt-out policies here.)

(3) While neither Senate nor House bills speak specifically to this, current NCLB regulations require that students with disabilities are assessed on the assessment for their enrolled grade level. This requirement helped to eliminate the practice of “out-of-level testing” (OOLT) of students with disabilities and resulted in schools and parents getting information on how students with disabilities perform vs. their same age/grade non-disabled peers. It will be important to maintain the prohibition on OOLT in any ESEA re-write.

ALTERNATE ASSESSMENTS. About the only issue that is specific only to students with disabilities is that of participation in alternate assessments. Both bills allow states to develop and administer alternate assessment on alternate academic achievement standards (AA-AAS) for students with the most significant cognitive disabilities. However, the bills vary significantly:

  • Limitation. Senate bill limits the number of students with disabilities who can be assessed using an AA-AAS to one percent of all students assessed – which equates to roughly 9%-10% of students with disabilities. This provision is similar to a NCLB federal regulation and is designed to ensure that students with disabilities are not inappropriately assigned to an alternate assessment. The House bill contains no such limitation and would open the door for abuse of alternate assessment.
    Prohibition. The Senate bill also contains a prohibition on any state developing any other alternate assessment for students with disabilities. Maintaining this provision in any ESEA re-write is critical to ensuring that students with disabilities – other than those with the most significant cognitive disabilities – participate in states’ general assessment at their enrolled grade.

GRADUATION. Attention to the graduation rate of all students, including students with disabilities, was significantly enhanced via the promulgation of federal ESEA regulations in 2008. The new regulations ensured that graduation received enhanced focus, particularly in those high schools failing to graduate at least 60% of students in four years (called drop-out factories) by disaggregating graduation rates by student subgroups, setting annual graduation rate targets and linking those targets to Adequate Yearly Progress (AYP). Most of these advancements are lost in both the Senate and House ESEA bills. While both bills maintain the requirement to report graduation rates using the 4 Year Adjusted Cohort Graduation Rate (ACGR) for all students and student subgroups, neither incorporates serious consequences for failing to achieve annual targets or make significant improvements. More from AEE.

BOTTOM LINE: In their current form, neither the Senate nor House bill to reauthorize ESEA is good enough for students with disabilities. With these as starting points for conference, we can anticipate only an unacceptable produce to emerge.

USED announces 2015 state determinations on IDEA Implementation

July 3rd, 2015

July 3, 2015

The US Dept. of Education has released its 2015 determinations of how states are implementing the IDEA. In 2014 the Department added a new procedure in making these determinations – known as a Results Matrix. The Results Matrix and the existing Compliance Matrix now make up what is called the “Results Driven Accountability Matrix (RDA).” The Department has made a few very significant changes to the Results Matrix in 2015. These include:

  • In 2014 states were evaluated on the performance gap between students with disabilities and all students on state assessments in reading and math. These elements have been ELIMINATED in 2015. Proficiency on state assessments is no longer part of the results matrix.
  • In 2015 the Department ADDED two new elements:
    • the percentage of students with disabilities exiting school by graduating with a regular diploma (this is a different calculation than the 4-year adjusted cohort graduation rate (ACGR) that states report each year under NCLB rules)
    • the percentage of students with disabilities exiting school by dropping out.

The Department has not yet posted details of each state’s determination. These should be available here in the coming days. (We reported details of the 2014 Results Matrix here.)

Meanwhile, here is a list of each State’s performance in meeting the requirements of IDEA Part B, which serves students with disabilities, ages 3 through 21 (also available here):

Connecticut, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Republic of Palau, Republic of the Marshall Islands, Rhode Island, Vermont, Virginia, Wisconsin, Wyoming

Delaware, Federated States of Micronesia, Georgia, Ohio, Virgin Islands

NEEDS ASSISTANCE (two or more consecutive years)
Alabama, Alaska, American Samoa, Arkansas, Arizona, California, Colorado, Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Idaho, Illinois, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Puerto Rico, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia

NEEDS INTERVENTION (two consecutive years)

NEEDS INTERVENTION (four consecutive years)
Bureau of Indian Education

NEEDS INTERVENTION (nine consecutive years)
District of Columbia

IDEA identifies specific technical assistance or enforcement actions that the Department must take under specific circumstances for States that are not determined to “meet requirements.” If a State “needs assistance” for two consecutive years, the Department must take one or more enforcement actions, including, among others, requiring the State to access technical assistance, designating the State as a high-risk grantee, or directing the use of State set-aside funds to the area(s) where the State needs assistance. If a State “needs intervention” for three consecutive years, the Department must take one or more enforcement actions, including among others, requiring a corrective action plan or compliance agreement, or withholding further payments to the State.

Details on how the Department made the 2015 determinations are available here: http://www2.ed.gov/fund/data/report/idea/partbspap/2015/2015-part-b-how-determinations-made.pdf

The 2014 determinations are available here: http://www2.ed.gov/fund/data/report/idea/2014-chart-1.pdf

Smarter Balanced Field Test Results Show Major Gaps for Students with Disabilities

January 1st, 2015

Smarter Balanced Assessment Consortium
Disaggregated 2014 Field Test Data

The Smarter Balanced Assessment Consortium (SBAC) released results of its 2014 field testing on December 22, 2014. Results included projections of student performance on the assessments based on the field test demographic sample by content area, grade level and demographic groups as defined by No Child Left Behind.

Projections of student results are valid only for the Consortium as a whole and cannot be interpreted on a state-by-state basis. SBAC states are listed here.

Below is a comparison of the percent of all students and students with Individualized Education Programs (IEPs) performing at each of the following achievement levels:

Level 4 – Highest Level  – At Gr. 11 – Ready for credit-earning college work

Level 3 – At Gr. 11 — Ready for credit-earning college work if continues to progress in Gr. 12

Level 2 – Approaching readiness

Level 1 – Lowest Level




Level 1

Level 2

Level 3

Level 4




Level 1

Level 2

Level 3

Level 4

Gr. 3






Gr. 3


























Gr. 4






Gr. 4


























Gr. 5






Gr. 5


























Gr. 6






Gr. 6


























Gr. 7






Gr. 7


























Gr. 8






Gr. 8


























Gr. 11






Gr. 11


























Compiled by The Advocacy Institute
Disaggregated Field Test Data (DOCX) (PDF)



Fall 2014 Education & Disability Policy Webinar Series

October 13th, 2014

Education & Disability Policy
3 Part Webinar Series

This three part webinar series addressed federal policy as it relates to disability and education.  The series was hosted by nine national organizations focused on students with disabilities, listed below.

Webinar Archives

Topic: Introduction to Education Policy ~ Understanding ESEA and IDEA

Conducted October 30, 2014
View archive  ::  Download handout

Topic: High Expectations, Assessments, and Quality of Education

Conducted November 20, 2014
View archive

Topic: Graduation ~
Considerations and Implications for Students with Disabilities

Conducted December 11, 2014
View archive
  ::  Download handout



Webinar sponsors




Support UDL in Education Funding Priorities

July 24th, 2014

Kids need your help! The US Department of Education (Department) has published its draft priorities and definitions to guide its discretionary grant programs for the coming years. The priorities were last undated in 2010.

To support a comprehensive education agenda, the Secretary proposes 15 priorities and related definitions for use in discretionary grant programs.

Sadly, the proposed priorities do not include universal design for learning (UDL).  The Department’s own National Educational Technology Plan as well as the Higher Education Act (last reauthorized by Congress in 2008) emphasis the potential of UDL to raise educational opportunity and outcomes for all learners. But it won’t happen without funding! 

To help support UDL in the new education funding priorities, submit a comment by following these steps:

 The deadline to submit comments is 11:59 p.m. EDT on Thursday, July 24



I urge the US Department of Education to include universal design for learning (UDL) in its proposed supplemental priorities and definitions for discretionary funding. Given the potential of UDL to support students in the development of college- and career-readiness as well as the prominence of UDL in the Department’s National Educational Technology Plan 2010 and the Higher Education Act, it is essential that UDL have a prominent role in the Departments comprehensive education agenda. This will not happen without inclusion in the proposed priorities and definitions.


I am writing to express concern with the apparent absence of universal design for learning (UDL) in the proposed priorities and definitions. In particular, Proposed Priority 3 – Promoting Personalized Learning – fails to mention the principles of UDL in the discussion on personalized learning. This oversight is unfortunate, given the emphasis in the Department’s National Educational Technology Plan 2010 on personalized learning and UDL as two key concepts that can support learners who have been marginalized by traditional educational settings (Goal 1.3).

Proposed Priority 3 further confuses the matter by using the phrase “universal design principles.” Although similar, the concepts of “universal design” and “universal design for learning” have two very different meanings.

The term “universal design for learning” is defined in the Higher Education Act as follows:

The term “universal design for learning” means a scientifically valid framework for guiding educational practice that—

(A) provides flexibility in the ways information is presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and

(B) reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and students who are limited English proficient (20 U.S.C. § 1003(24)).

The Higher Education Act also refers to UDL in the context of teacher preparation programs that enroll students receiving Federal assistance – for example, by requiring states to describe how these programs prepare future teachers to integrate technology effectively into curricula and instruction, including the use of activities that are consistent with the principles of UDL (20 U.S.C. § 1022d(b)(1)(K)).


Given the potential of UDL to support students in the development of college- and career-readiness as well as the prominence of UDL in the Department’s National Educational Technology Plan 2010 and the Higher Education Act, I recommend the following:

  • Rename Proposed Priority 3, consistent with the National Educational Technology Plan 2010, as follows: “Promoting Personalized Learning and Universal Design for Learning.”
  • Replace the phrase “universal design principles” in Proposed Priority 3 with the phrase “principles of universal design for learning.”
  • Revise the background discussion under Proposed Priority 3 to acknowledge the role that UDL can play as a means to facilitate personalization and the effective use of technology in education. With its emphasis on providing multiple means of representation, multiple means of strategic action, and multiple means of engagement, UDL can serve as a guide for improving curricular and instructional goals, materials, methods, and assessments in a manner that addresses the anticipated variability among all students.
  • Revise the third bullet under Proposed Priority 11 – Leveraging Technology to Support Instructional Practice and Professional Development – as follows: “Enabling the creation of personalized learning environments based on the principles of UDL.”
  • Add a definition of UDL (as defined in the Higher Education Act) to the proposed definitions.



June 2nd, 2014

DAY OF ACTION :: JUNE 12, 2014



On June 12, 2014, please call your two U.S. Senators and your Member of the U.S. House of Representatives and ask them to cosponsor the Keeping All Students Safe Act, Senate Bill S. 2036 and House Bill H.R. 1893. Ask your friends and family to do the same.

HERE’S HOW: Call 202-224-3121 and ask for your Senators and Representative. If you cannot call, then please email (Senate information available here;  House information available here)

Congress must hear from thousands of parents, people with disabilities, students, advocates, professionals, friends, families, and neighbors.  Personalize your message!  Describe your connection to disability. If you have a story about restraint or seclusion or worry that it could affect your child or friends, please say so.  Explain how you, your family members, friends, and those with disabilities whom you advocate for have the right to be protected.



Please cosponsor the Keeping All Students Safe Act, S.2036 and H.R. 1893, and protect all American students nationwide from restraint and seclusion in our nation’s schools.  Over 110,000 students were subjected to restraint and seclusion in 2011-12.  These procedures have killed, injured, and traumatized students, according to Congressional reports.  They include a child suffocated in restraint after he tried to get lunch; a 7 year old who died in restraint after blowing bubbles in her milk, and a young teen who hung himself while his teacher sat outside the seclusion room.  These dangerous procedures are often used when no one is at risk of harm.  Parents often are not notified or find out much later; prompt notification is necessary to detect concussions and seek medical help.  The Keeping All Students Safe Act, S. 2036 and H.R. 1893, will forbid the use of restraint except in emergencies threatening physical safety.  Both will prevent non-emergency seclusion.  Both require schools to notify parents on the same day.  The bills will promote a necessary shift towards positive behavioral interventions that evidence shows will keep students safe.



  • A Government Accountability Office (GAO) report found that 20 students had died in seclusion; countless others have been injured and traumatized, according to numerous reports.   One teen hung himself in a seclusion room while staff sat outside the locked door; a seven year old died face down in physical restraint after blowing bubbles in her milk; and a young teen was suffocated face down in restraint by his teacher twice his size when he tried to get lunch.  Recent stories include an 8 year old with Down Syndrome whose shoes were duct-taped so tightly that she could not walk; a 10 year old with autism who was pinned face down after a tantrum over a puzzle; and a child with Cerebral Palsy who severed her finger when confined in seclusion.  Parents often do not learn that restraint/seclusion occurred or learn long after the events.  Prompt notification is important to seek medical care and to work with schools to prevent future episodes.
  • The most recent data has shown that in 2011-12, over 110,000 students were subjected to restraint and seclusion.  These included at least 70,000 students were subjected to physical restraint; 37,000, to isolated seclusion; and nearly 4,000 to mechanical restraint.  The actual total is likely much higher.  Restraint and Seclusion are used disproportionately upon students with disabilities and minority students.
  • Both Congressional bills, S. 2036 and H.R. 1893, will forbid the use of restraint except in emergencies threatening physical safety.  Both seek to prevent non-emergency seclusion:  the House bill, by limiting it to threats of physical harm; the Senate, by banning it.  Both bills require schools to notify parents on the same day.  Prompt notification enables parents to seek medical care for concussions or other injuries and to work with schools to prevent recurrences.  Both bills will ban restraints that impede breathing, and dangerous mechanical and chemical restraints.  They will ensure that teachers have the tools and resources they need to prevent challenging behaviors.  The bills will enhance public oversight by requiring data reporting and collection.
  • The Keeping All Students Safe Act will shift schools towards preventing problematic behavior through evidence-based positive behavioral interventions and supports, and keep students and staff safe.  In many cases, the use of positive supports and interventions greatly diminishes and even eliminates the need to use restraint and seclusion.  For example, the Centennial School in Pennsylvania cut restraint and seclusion use from over 1,000 occurrences per year to less than ten through the use of positive intervention plans.  Montgomery County, Virginia uses “easily accessible, evidence-based practices” that have reduced crisis-level behaviors by 78% and targeted problem behaviors by 81%, according to Senate testimony.  Restraint and seclusion are rarely used.
  • Many states don’t adequately protect all students from restraint and seclusion.  Many allow their use when no one’s safety is in danger.  Only 14 states restrict restraint to dangers threatening safety emergencies for all children; only 18, for children with disabilities.  Only 1 state bans seclusion of all children; 4 ban seclusion of children with disabilities, and another 10 limit seclusion to physical safety emergencies.  Only 20 states require parents of all children be informed of restraint and seclusion use.  Roughly half of all states allow restraints that impede breathing.



Listen Up, Louisiana

May 15th, 2014

H.B. 1015 :: Right Problem, Wrong Solution



A bill working its way through the Louisiana state legislature (H.B. 1015) proposes significant changes to the manner in which the state’s 70,000 + students with disabilities will be educated.

Designed to address the exceedingly low rate that students with disabilities earn a regular high school diploma (see table below), H.B. 1015 will allow IEP teams to substitute IEP goals for any and all of the state’s graduation requirements that apply to all other students. The same applies to grade promotion.

The proposal has lots of support – from parents, from legislators, and from the state’s Developmental Disabilities Council, which is working hard for its passage. There is alot of misinformation associated with the rationale for this bill – primarily the inaccurate claim that 28 states leave graduation requirements for students with disabilities up to the IEP team. While many states allow IEP teams some level of involvement in matters related to how a student will exit school, most are restricted by state and local policies. Few are as sweeping as the policy proposed by H.B. 1015.

There’s a couple of things fundamentally wrong with the provisions in H.B. 1015, particularly those pertaining to graduation. The “alternate pathway” will lead to students with disabilities receiving a regular high school diploma with no guarantee that the document represents attainment of skills and knowledge needed for life beyond high school. Unfortunately, inappropriate use of IEP goals – and the IEP team that is charged with formulating the goals – is rampant. In fact, it found its way into discussions of federal education policy a few years back, as we detailed here. The consequences are depicted in the cartoon below, from the works of Michael Giangreco:

Reprinted with permission: Giangreco, M.F. (1998). Ants in his pants: Absurdities and realities of special education. Minnetonka, MN: Peytral Publications www.peytral.com

The well-meaning folks in Louisiana need to go back to the drawing board for the following reasons:

  • the sweeping authority given the IEP team in H.B. 1015 is almost certain to result in a violation of the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973. Specially, their right to comparable benefits as those that confer to their non-disabled peers;
  • special education services are terminated when a student is awarded a regular diploma, thus, students in great need of services through age 21 (as allowed by state law) may be shortchanged;
  • the complete lack of involvement and oversight by the Board of Elementary and Secondary Education and the Louisiana Department of Education provides no checks and balances for the application of the “alternate pathway,” thus, a student who receives 30 minutes of speech therapy per week for articulation problems could be excused from graduation requirements just as easily as a student with significant cognitive disabilities;
  • students, parents, institutions of higher education and employers will be confronted with a regular diploma that means little if anything to life beyond school – and means something different for every student.

The poor academic performance of students with disabilities in Louisiana shouldn’t be used as a rationale for moving away from state standards, assessment results, and graduation requirements. While H.B. 1015, if implemented, might produce a bump in graduation rates, it will do little to improve academic performance. In fact, states with the highest graduation rates for students with disabilities have very tough and tight policies – states like Massachusetts and Maryland.

As articulated by Jeff Spitzer-Resnick in his recent blog post, its time to Stop Paternalizing Children with Disabilities.

As first appeared in Education Week January 28, 2014. Reprinted with permission from Editorial Projects in Education.

The writer is director of The Advocacy Institute and author of Diplomas at Risk: A Critical Look at the Graduation Rate of Students with Learning Disabilities, a 2013 report published by the National Center for Learning Disabilities. The sponsor of H.B. 1015 misrepresented the purpose and recommendations of this report in his opening statement to the House Education Committee on April 29, 2014. The National Center for Learning Disabilities has sent this letter to the members of the Louisiana House and Senate.


Say NO to Proposed Revisions to Michigan Administrative Rules for Special Education

February 18th, 2014


Action  Alert  *  Action  Alert  *  Action  Alert  Action  Alert

Tell Michigan Department of Education, State Superintendent Michael Flanagan and Governor Rick Snyder, NO to Devastating Revisions to the Michigan Administrative Rules for Special Education.

Public Comment period is short and ends at 5:00 p.m. on Thursday, March 13, 2014

ISSUE: The Michigan Department of Education is proposing catastrophic changes to the rules that govern how students with IEPs are educated in Michigan public schools.

The public comment period is SHORT and WAYS TO COMMENT ARE LIMITED. If these rule revisions become reality in Michigan it could lead to a landside of similar revisions in states across the U.S.

Proposed revisions and additional information available here.

Public Comment will only be accepted through the following methods:

  • At two Public Hearings, both on March 10th:

March 10, 2014 – 1:00 p.m.–3:00 p.m.
Detroit School of Arts
123 Selden Street
Detroit, Michigan 48201

March 10, 2014 – 4:00 p.m.–6:00 p.m.
Lansing Community College West Campus
5708 Cornerstone Drive
Lansing, Michigan 48917

  • Via U.S. Mail to:

Public Comment
Office of Special Education
Michigan Department of Education
P.O. Box 30008
Lansing, MI 48909

Say NO to these special education rule revisions …

× Giving local control to Intermediate School Districts (ISD) and school districts to determine special education staffing annually based upon the number of students will explode special education staff caseloads.

× Removing all transparency from the ISD “alternate special education plan.”  MI ISDs have authority to override all special education programs, program sizes, teacher caseloads and student age spans, and create their own.  The MI DOE is now proposing to remove all transparency and only require that the ISD keeps a copy of this “alternate plan” on file.

× Requiring parents to initiate consent for special education prior to convening an Individualized Education Program (IEP) team is incongruent with the IDEA 300.306 and devalues the important role that parents play in determining eligibility and services

× Establishing that a student will only be a student with a disability until the high school credits necessary for a diploma are earned and then a district can unceremoniously exit the student and with no concern for the student’s preparedness for post-secondary education and employability.

× Requiring paraprofessionals to have only a high school diploma. Ensuring the lowest level of qualifications for staff who provide direct instruction in reading, written expression and mathematics.

× Narrowing the criteria to determine if a student is eligible under an Autism Spectrum Disorder. This will eliminate students on the ASD spectrum needing specialized instruction and related services.

× Eliminating short term objectives for all students. This removes accountable and measurable progress.

× Removing the ‘multidisciplinary evaluation team” and new limitations on the education personnel responsible for evaluating students in thirteen areas of eligibility.

× Watering down requirements for Hearing Impairment and Visual Impairment teachers due to the critical shortage. So students will be short-changed.

× Allowing physician assistants (bachelor’s degree and do not specialize in pediatric evaluations for disabilities) to be on the evaluation team to determine a Physical Impairment (PI), Other Health Impairment (OHI), Traumatic Brain Injury (TBI) and Deaf-Blind.

× Requiring only a psychiatrist, psychologist and social worker in determining a student’s eligibility for an Emotional Impairment How do you “rule out a learning disability” when no achievement testing or cognitive battery is conducted?

Contrary to MI DOE’s assertion, these proposed revisions have nothing to do with “improving student outcomes.” Rather, they will allow the state of Michigan, its ISDs and LEAs to balance their budgets on the backs of students with disabilities.

Eliminating the state-imposed special education rules that govern teacher caseloads, special education programs, program sizes and student age spans will not improve outcomes.

QUESTIONS? Contact MarcieLipsitt at outlook.com

See how Michigan students with disabilities perform!



Miller, Tri-Caucus Call on Department of Education to Better Protect Students’ Civil Rights and Promote Equity

February 13th, 2014

FEBRUARY 12, 2014

Rep. George Miller (D-Calif.), the Congressional Black Caucus, the Congressional Hispanic Caucus, and the Congressional Asian Pacific American Caucus sent a letter to Secretary of Education Arne Duncan expressing concerns regarding ED’s approved policies under Elementary and Secondary Education Act (ESEA) flexibility that weaken accountability for student achievement. The press release and letter text are available here.

According to the press release, 35 states are currently in the process of seeking approval from ED for an extension of an existing waiver that provides exemptions from specific ESEA requirements.

Unfortunately, some of the state waivers that were originally approved in 2012 do not adequately protect students’ right to an equal education. Student subgroups, such as students of color, low-income students, English learners, and students with disabilities, are especially vulnerable to being denied access to the same high-quality education as other American children. Miller and the Tri-Caucus are concerned that those equity provisions will be further diminished during the current extension process, and are calling on ED to require that states make any corrections to their policies that are necessary in order to promote equality.

From the letter:

Students with Disabilities

We are concerned that some policies, including graduation rate and super subgroup policies approved under ESEA flexibility, are negatively impacting students with disabilities.  Of additional concern, is the ongoing development and implementation of new regular and alternate assessments for this population.  Students with disabilities have made marked gains in recent decades, due largely to federal focus on not only ensuring that all students be taught to and assessed on high academic standards, but also that states and school districts be held accountable for reporting and improving outcomes for all students.  Through the extension process, we expect you to reaffirm ED’s commitment to ensuring that ESEA flexibility in no way undermines the federal commitment to equitably educate students with disabilities.

The letter validates many of the concerns raised in our report, ESEA Flexibility: Issues for
Students with Disabilities
, released in March 2013. As we have seen with the proposal from the New York State Education Department, the ESEA Flexibility extension process holds great peril for students with disabilities.

States now eligible to apply for a one-year extension of their ESEA Flexibility are AR, AZ, CO, CT, DC, DE, FL, GA, ID, IN, KS, KY, LA, MD, MA, MI, MN, MS, MO, NV, NJ, NM, NY, NC, OH, OK, OR, RI, SC, SD, TN, UT, VA, WA, WI. Details on all state ESEA Flexibility applications are available here.  Details on requests for an extension are available here.


New York Proposes Out-of-Level Testing for Students with Disabilities

January 14th, 2014

The New York State Education Department (NYSED) is proposing a significant change to the manner in which its students with disabilities (almost 400,000 students) are tested for purposes of school/district/state accountability. The proposal is contained in NYSED’s  application for an extension of its current ESEA Flexibility.

This proposal violates the rights of students with disabilities, conflicts with the principles established by the U.S. Dept. of Education (USED) regarding waiving some provisions of the Elementary and Secondary Education Act (ESEA) due to the inaction of Congress to update the law, and could create an incentive to inappropriately put students into special education.

JANUARY 29, 2014 UPDATE: Thanks to everyone who submitted comments in opposition to this proposal during the public comment period (Jan. 16-28, 2014). The proposal comes before the New York Board of Regents for a vote at its meeting on Feb. 10-11, 2014. 

FEBRUARY 1, 2014 UPDATE: U.S. Education Ass’t Secretary reaffirms commitment to maintain requirement that students with disabilities be tested at their enrolled grade level for purposes of ESEA accountability. Read her statement here.

FEBRUARY 8, 2014 UPDATE: NYSED releases revised proposal to test some students with disabilities below grade level. Despite hundreds of comments in opposition to this proposal, NYSED will ask the NY Board of Regents for approval to move it forward to the U.S. Dept. of Education as part of its application for an extension of its ESEA Flexibility. The Board of Regents meets February 10-11, 2014.Info available here.

FEBRUARY 10, 2014 UPDATE: New York Board of Regents approves NYSED ESEA Flexibility Extension request including proposal for out-of-level testing for some students with disabilities. The proposal will now move forward to the U.S. Dept. of Education for consideration.

Proposed revisions to the initial proposal are stated as:

“The Department has refined its proposal to more clearly identify eligibility criteria for the subgroup of students for which this waiver can apply; limited how the scores of students on instructional level assessments can be used for accountability purposes; and has committed to public reporting of both State and district disaggregated data on the use of this assessment for students with disabilities. Additional guidance and professional development for districts, Committees on Special Education and parents will be provided upon approval of the waiver. In particular, the Department has specified five criteria that students must meet in order to be eligible for participation in instructional level testing as well as identified factors such as a student’s disability category that may not be used as a basis for determining a student’s eligibility; reduced from .93 to .7 percent in English language arts and from 2.34 to 1.5 percent in mathematics the percentage of students whose instructional level scores may be used for accountability purposes; and limited to “partial credit” the adjustment to the Performance Index that would result from a student scoring at or above Level 2 on an instructional level assessment.”

The revised amendment appears on pages 11-15 and analysis of comments appears on pags 32-40 of the full document here.


View comments submitted by leading civil rights and disability rights advocacy organizations:


New York received approval of its initial application for  (ESEA) Flexibility on May 12, 2012. New York’s approved request is available here.

New York’s ESEA Flexibility did not give them permission to assess students with disabilities in ways other than those already authorized under current ESEA Federal regulations. These options are:

    • General assessment without accommodations;
    • General assessment with accommodations;
    • Alternate Assessment on Alternate Academic Achievement Standards (AA-AAS), known in NY as the NYSAA.

Under the requirements of ESEA, all students must be administered the assessment for the grade level in which they are enrolled.

New York is currently part of assessment consortia that are developing new assessments aligned with the Common Core State Standards. These are PARCC for the general assessment and the National Center and State Collaborative for the AA-AAS.


New York’s current ESEA Flexibility expires at the end of the current school year (2013-2014). The state must now apply for a one-year ESEA Flexibility extension. Conditions for applying for an extension were laid out in a letter to Chief State School Officers from US Education Ass’t Secretary Deb Delisle back in November 2013.

As part of its ESEA Flexibility extension application, New York is proposing to create an additional way to assess some of its students with disabilities. This approach – known as “out-of-level” or “off-grade-level” testing is not allowed under current ESEA regulations. The practice was in wide-spread use before the enactment of the latest version of the ESEA – known as No Child Left Behind – not just for students with disabilities but for many students who weren’t expected to perform at grade level, as recalled by civil rights advocate Dianne Piche in this Huffington Post article.

The specifics of New York’s proposal appear below. Complete information on the proposed amendments to New York’s ESEA Flexibility extension application are at http://www.p12.nysed.gov/accountability/documents/ESEAFlexibilityRenewalforPublicComment011614_1.pdf.

Amendment Regarding Testing Requirements for Students with Disabilities
(excerpted from the full proposal available here.)

There is a group of students with significant cognitive disabilities who cannot demonstrate what they know and can do on the general grade level assessments, even with accommodations. These are students who are not eligible for the State’s alternate assessment based on alternate academic achievement standards. This subgroup of students can make significant progress, but are not likely to reach grade-level achievement in the time frame covered by their individualized education programs (IEP).

NYSED is applying for a waiver to allow school districts to administer the general State assessments to these students with disabilities, but at their appropriate instructional grade levels, provided that
(1) the State assessment administered to the student is not more than two grade levels below the student’s chronological grade level; and (2) the student is assessed at a higher grade level for each subsequent year. The student’s instructional grade level would be calculated annually and separately for English Language Arts (ELA) and math.

Allow the proficient and advanced scores of those students assessed in accordance with their instructional grade levels be used for accountability purposes, provided that the number of those scores at the LEA and at the State levels, separately, does not exceed the .93 percent of all students in the grades assessed in ELA and 2.37 percent of all students in grades 3-8 assessed in Math.

To ensure appropriate time for dissemination of guidance to Committees on Special Education who would make IEP recommendations for student participation in the instructional level State assessment, this waiver would go into effect during the 2014-15 school year.


Until the State can develop and implement adaptive assessments, NYSED requests to more appropriately assess, for instructional and State accountability purposes, the performance of students with significant cognitive disabilities who cannot, because of the severity of their disabilities, participate in chronological grade level instruction.

These students, while they do not meet the State’s definition of a student with a significant cognitive disability appropriate for the State’s alternate assessment, may be able to meet the State’s learning standards over time. However, these students need to be provided with instruction with special education supports and services at a pace and level commensurate with their needs and abilities and their individual rates of learning.

When students with disabilities are required to participate in an assessment at their chronological age significantly misaligned with content learned at their instructional level, the assessment may not provide as much instructionally actionable information on student performance or foster the most prudent instructional decisions. For these students, State assessments do not provide meaningful measures of growth for purposes of teacher and leader evaluations.

NYSED holds all schools and students to high expectations and believes this waiver will lead to more appropriate instruction and assessment of students, while ensuring that students with disabilities participate in the general curriculum and the same State assessments, but closer to their instructional levels in order to obtain instructionally relevant information from the assessments.

The State has calculated the percentage of students who have participated in the chronological age assessments and found that in school year 2012-13, .93 percent perform at chance level on the ELA exams and approximately 2.37 percent of students score at chance on the Math exams.

The State would establish criteria, based on objective and valid data, for demonstrating that the student’s current level of performance is two or more years below his/her chronological grade level and demonstrating the student’s progress (or lack of progress) over a sufficient period of time. The state would also create a profile of a student who, based on individual evaluation information identifies the student as having intellectual or cognitive deficits, such as autism, intellectual disability, traumatic brain injuries, neurodegenerative diseases or severe learning disabilities.

To provide further safeguards, the State would require:

• A determination by CSE that the student does not meet the State’s definition of a student with disabilities who is eligible for the State’s Alternate Assessment; and

• Documentation that shows that the student would need extensive modifications and accommodations to curriculum, instruction and assignments to access the curriculum and that even with such services, the CSE is reasonably certain that the student would fail to achieve chronological age-level proficiency; and

• Documentation of notices to the student’s parent of the recommendation and the reasons for the recommendation; and

• Assurances that the student will not be removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum and that the student will be provided instruction in in the general curriculum with his/her chronological age peers by a highly qualified teacher.

The waiver will support continued focus on ensuring students with disabilities graduate college- and career-ready by ensuring more meaningful State assessment results; support efforts to improve all schools in the State; and support closing of achievement gaps between student subgroups by better identifying the subgroups of students with disabilities and their performance levels.

Process for Consulting with Stakeholders and Summary of Comments on the Students with Disabilities Assessment Waiver Request

Stakeholders from across the State, representing teachers, administrators, parents, and community based organizations have assisted the Department in responding to the requirements of the Renewal application. During the first week of November, an external “Think Tank” was convened, and members were asked to be thought partners with the Department as it drafted its response to the renewal requirements. A large portion of the members of the ESEA Renewal Think Tank also participated in the original ESEA Waiver Think Tank that guided the creation of New York State’s approved ESEA Waiver application. To date, The ESEA Waiver Renewal Think Tank has met five times since convening in November, with various related work groups meeting at least twice additionally during that time period.

In addition to the Think Tank, the Commissioner, Deputy Commissioner and Department staff have solicited feedback on the waiver through meetings with a wide variety of organizations, including the Commissioner’s Advisory Panel for Special Education (of which the majority of members are parents of students with disabilities), representatives of each of the State’s 13 Special Education Parent Centers and federal Parent and Training Information Centers (PTIs), Title I Committee of Practitioners, the English Language Learners Leadership Group, the DTSDE Training Group, and the District Superintendents.

Throughout this process, Department staff evolved the proposed waiver to address stakeholder concerns and recommendations, which were primarily to develop objective criteria to identify the subgroup of students with disabilities who would be eligible for this waiver and to ensure that students with disabilities would continue to have access to the general curriculum in the least restrictive environment. This waiver request has been strongly supported by both parent and advocacy organizations and school personnel throughout the State.


In its ESEA Flexibility Implementation letter from the US Dept. of Ed (USED), New York was reminded that “New York and its local educational agencies (LEAs) remain obligated to comply with all other requirements of the ESEA, including, for example, the fiscal requirements in ESEA section 1120A, the report card requirements, the regulatory requirements for calculating graduation rates, the caps on the number of proficient and advanced scores of students with disabilities who take an alternate assessment based on alternate … academic achievement standards that may be included in accountability determinations, and the requirements related to equitable services.

ASSESSMENTS ALLOWED UNDER ESEA: USED’s ESEA Flexibility does not provide for the use of any other assessments nor the use of “out of level” testing. Thus, the proposal developed by NYSED to “allow districts to administer the State assessments at the students’ instructional grade levels as opposed to their chronological grade levels” does not comply with ESEA Flexibility. Furthermore, the scope of USED’s authority to grant flexibility under No Child Left Behind does not allow it to entertain such a proposal.

The U.S. Dept. of Education addressed the use of out-of-level testing when it issued final regulations to NCLB on July 5, 2002. In its analysis of comments to the proposed regulations, USED stated that:

“One of the bedrock principles of the NCLB Act is that all students can learn to high standards. As a result, section 1111(b)(1) requires challenging academic content and student achievement standards that a State applies to all schools and students in the State. Similarly, section 1111(b)(3) requires a State to develop aligned assessments that the State uses to measure the achievement of all students. These requirements are accurately implemented in Secs. 200.2(b)(1) and 200.6(a) of the final regulations. Specifically, as Sec. 200.6(a)(1) indicates, a State’s assessment system must provide accommodations so that a student with disabilities or a student covered under Section 504 of the Rehabilitation Act of 1973 can be held to the content and achievement standards for the grade in which the student is enrolled. Although “out-of-level” tests, for example, may provide instructional information about a student’s progress, they are not an acceptable means to meet the State’s assessment requirements under Secs. 200.2 and 200.6 or the accountability requirements of the NCLB Act.” (34 CFR Part 200, Final Regulations for Standards and Assessments, issued July 2002)

VIOLATION OF IDEA: The IDEA expressly states that one purpose of “specially designed instruction” is to “ensure access of the child to the general education curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” This purpose is not qualified with any language allowing the lowering of the educational standards students with disabilities are expected to meet based on their “instructional level.”

VIOLATION OF SECTION 504: Section 504 of the Rehabilitation Act of 1973 and its long-standing regulations also require that students with disabilities not be discriminated against or denied comparable aids, benefits or services. 34 C.F.R.§104.4(b). The setting of lower standards for certain students with disabilities will inevitably mean that most of those students will not be taught those skills and bodies of knowledge expected for all students, at the levels expected for all students. To the extent that New York’s students with disabilities are failing to perform at a proficient level on the state assessments in Reading and Mathematics, the response to that failure should be changes to students’ instructional programs and the level of intensity of their specially designed instruction.

New York bases its proposal on the percentage of students with disabilities who scored at the “chance” level on its state assessments in 2012-13 and then presumes that performance to be equal to performance two grades levels below the student’s chronological age. Yet New York fails to reveal how many students in other groups – such as Black, Hispanic, low-income students scored at the same level. To use this approach as a rationale to use below-level testing for students with disabilities but not other students performing equally poorly is discriminatory.

PARENTAL INVOLVEMENT: New York’s proposal fails to provide adequate parental involvement and does not recognize parents as equal members of a student’s IEP team. The IEP team decides how a student will participate in the state assessment system, as required by IDEA.

LOWER PERFORMANCE TARGETS: ESEA Flexibility allowed NY to establish new “annual measurable objectives” or “AMOs” – the percentage of students who must score at proficient or above in order for a school or district to make “Adequate Yearly Progress” or AYP.

Using this flexibility New York created a “Performance Index” to replace the AMOs required in ESEA. New York’s Performance Index is a value from 0 to 200 that is assigned to an accountability group, indicating how that group performed on a required State test (or approved alternative) in English language arts, mathematics, or science. Student scores on the tests are converted to four performance levels, from Level 1 to Level 4. Each student scoring at level 1 is credited with 0 points, each student scoring at Level 2 with 100 points, and each student scoring at level 3 or 4 with 200 points. The Performance Index16 for each accountability group is calculated by summing the points and diving by the number of students in the group.

This “differentiated” approach allowed the Performance Index for students with disabilities to be set much lower than other groups of students. Allowing these lower expectations was intended to provide schools and districts more attainable performance goals for students with disabilities over the course of six years. (See tables below.) The Performance Index targets were set against a baseline year in which students with disabilities were assessed via the two available options: the general assessment with or without accommodations and the alternate assessment on alternate achievement standards. 

Now, as part of its ESEA Flexibility extension request, NYSED  proposes to further adjust the Performance Index, using the 2012-2013 assessment results for each student subgroup (Amendment 4). This additional target reset will result in much lower expectations for students with disabilities since this group performed significantly lower in 2012-2013 than in previous years.

Just 5 percent of students with disabilities in grades 3-8 scored at or above the proficient levels in English/Language Arts and just 7 percent scored at or above the proficient levels in Math in 2012-2013 (Source: A New Baseline: Measuring Student Progress on the Common Core Learning Standards). (See charts below)

Allowing some students with disabilities to be assessed below their enrolled grade level and then measure the school/district/state against these differentiated (lower) targets would result in unreliable and inaccurate information on the performance of students with disabilities.

Performance of students with disabilities in NY ELA assessment

Performance of students with disabilities on NY Math assessment

Performance Index targets in current NY ESEA Waiver

Tables below are also available in PDF here.

Source: New York State Flexibility Request, May 21, 2012