Hats off to the Education Advocacy Coalition for Students with Disabilities – a Maryland group of approximately 30 organizations and individuals concerned with special education issues!  On January 6, 2012, the group sent a letter the Interim State Superintendent of Schools to share a number of comments regarding Maryland’s possible forthcoming application to the U.S. Dept. of Education for ESEA Flexibility.

In its thoughtful and thorough letter, the Coalition addresses a series of important issues critical to maintaining strong accountability for students with disabilities.

BACKGROUND: On September 23, 2011, the U.S. Department of Education introduced an ESEA Flexibility Program which allows States to waive certain key accountability and funding allocation requirements of the Elementary and Secondary Education Act (ESEA-formerly referred to as NCLB, the No Child Left Behind Act). Eleven states submitted Flexibility Request on Nov. 14: Colorado, Florida, Georgia, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, New Mexico, Oklahoma, and Tennesse. The Requests for these states are available here. Decisions about these requests will be announced soon!

Advocates in one state – New Jersey – have sent a letter to US. Education Secretary Arne Duncan expressing concerns about the N.J. request and asking the US Dept. of Ed to postpone a decision until its concerns are addressed.

The following States  plan to apply in mid-February: Arkansas, Arizona, Connecticut, the District of Columbia, Delaware, Hawaii, Idaho, Illinois, Iowa, Kansas, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New York, Ohio, Oregon, Puerto Rico, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington and Wisconsin.

So get involved…here’s how:

Read “ESEA Flexibility Request: Tips for Protecting Students with Disabilities” to learn about the key issues to investigate.

Read the letter sent to Secretary Duncan by the Consortia for Citizens with Disabilities in December 2011 expressing concerns with requests submitted in December.

Read the Maryland and New Jersey letters for more information.

December 22, 2011

Arne Duncan
Secretary
U.S. Department of Education
400 Maryland, Ave, SW
Washington, DC 20202

Dear Secretary Duncan:

The undersigned organizations of the Consortium for Citizens with Disabilities Education Taskforce are writing to provide the U.S. Department of Education with observations drawn from review of the November submissions of ESEA Flexibility Requests. We offer these comments in hopes that they might be used to provide additional direction to those States that submitted requests in November 2011 as well as feedback to States that have indicated their intent to submit requests in February 2012.

While we understand the Department’s rationale for offering to provide State educational agencies (SEA) with flexibility regarding several of the current provisions in the Elementary and Secondary Education Act (ESEA), we hope that the significant advances regarding the accountability of the academic performance of our nation’s 5.8 million school-age students with disabilities made under No Child Left Behind will not be diminished in the process. To that end, we respectfully request that the Department ensures that ESEA Flexibility Requests provide meaningful information about how students with disabilities will be included in new State-developed plans as the process moves forward.

More specifically, we wish to address the following:

Consultation

The ESEA Flexibility Request FAQ document, and its addendum, makes clear that an SEA developing a request for ESEA flexibility must “meaningfully engage and solicit input from diverse stakeholders, such as students, parents, community-based organizations, civil rights organizations, organizations representing students with disabilities and English Learners, business organizations, and Indian tribes.” However, after reviewing the 11 Flexibility Requests submitted in November, it is clear that states need additional guidance from the Department about how to meaningfully engage and solicit input from these stakeholders.

When describing how an SEA fulfilled this requirement, most relied heavily on input solicited in prior years about some components of the Flexibility Request with much less detail about soliciting input directly on the Request itself. In addition, few states indicated they provided a draft upon which to provide input. It is not reasonable to expect stakeholders, especially parents, to provide comments based on a brief summary that omits key details affecting accountability for students with disabilities. Even those few states that provided a draft did not request public input until the final week, at most 2 weeks, prior to the submission deadline and gave stakeholders only 7 days to analyze the submission (many of which were hundreds of pages long) and submit comments. In addition, the stakeholder lists provided by the states often refer to only one or two disability organizations that represent parents and children. It is also not sufficient to get input from the state’s advisory panel on special education or other similar entity without broader disability outreach. These committees are not necessarily representative of all the disability interests in the state.

We urge the Department to provide the following guidelines for meaningfully engaging and soliciting input from parents of students with disabilities and disability organizations:

• A draft of the Flexibility Request should be posted on the SEA website along with an explanation of how the accountability changes would affect students with disabilities.

• Notices of this posting should be distributed to the disability organizations in the state that represent families of children with a full range of disabilities. LEAs should be expected to distribute the notice to local disability organizations and to parents of students with disabilities. Such efforts could also be assisted by the state’s parent training and information centers, parent community resource centers, and protection and advocacy agencies.

• States should allow at least 2-3 weeks for public comments and at least an additional week for the state to review the comments and make the necessary changes to the draft.

•   The SEA should meet personally with key state disability organizations beyond the state advisory panel, including representatives from the parent information and training center, parent community resource centers, the protection and advocacy organization and disability organizations that represent children with the various categories of disabilities under IDEA.

• Information provided by the SEA, either in public formats or via electronic deliveries should meet the required ADA accessible documentation laws and be available in multiple languages.

•   The accessibility needs of the community for public meetings should be determined in advance. Based on the needs of the community, information should be provided in multiple languages and in accessible formats, including but not limited to large print, Braille, and audio recording where needed. In addition, American Sign Language (ASL) translation and Communication Access Realtime Language Translation (CART) should be provided where needed.

Assessments

States submitting ESEA Flexibility Requests must select from one of three options pertaining to the SEA’s development and administration of annual, statewide, aligned, high-quality assessments that provides an accurate measure of student achievement and student growth. Two issues arise regarding assessments for some students with disabilities (IDEA-eligible) in our review of the 11 States that submitted requests in November 2011, as follows:

• Alternate Assessment on Modified Academic Achievement Standards (AA-MAS)

  States that currently administer an AA-MAS as allowed by ESEA regulations (Georgia, Indiana, Minnesota, Oklahoma, and Tennessee) and have indicated that they are participating in one of the two Race to the Top (RTTT) Assessment State consortia should be required to provide the Department with a comprehensive plan to transition students with disabilities currently taking AA-MAS into the general assessments.

Since the RTTT Assessment consortia are not developing an AA-MAS based on the Common Core State Standards (CCSS) and given the Department’s clear commitment to no longer allow use of AA-MAS for accountability under ESEA, it is critical that those States currently administering this alternate assessment begin planning a responsible phase-out process that protects students from abrupt changes in assessment as well as guarantees these students will be provided instruction in the CCSS curriculum at their enrolled grade level. Such planning should also provide guidance for IEP teams, including parents, on how to achieve a smooth transition for students.
While the current federal regulation governing the use of AA-MAS seeks to limit its use by way of a cap on the percentage of proficient or advanced scores that can be used in AYP determinations, it is increasing evident that many States are vastly exceeding the percentage of students with disabilities that should be assigned to an AA-MAS. As a consequence of this overuse, significant numbers of students with disabilities will be impacted by the shift away from use of AA-MAS.

•   Alternate Assessment on Alternate Academic Achievement Standards (AA-AAS)

All States currently administer an AA-AAS for students with the most significant cognitive disabilities. Under current ESEA regulations, this alternate assessment must provide results on student achievement that can be aggregated into the performance of the subgroup of all students with disabilities, any other applicable subgroup to which those students being assessed by an AA-AAS belong, as well as the performance for all students. [“To serve the purposes of assessment under title I, an alternate assessment must be aligned with the State’s content standards, must yield results separately in both reading/ language arts and mathematics, and must be designed and implemented in a manner that supports use of the results as an indicator of AYP.” Federal Register, Vol. 68, No. 236, Tuesday, December 9, 2003, Rules and Regulations, page 68699] Furthermore, the IDEA requires that all students with disabilities be included in State and district-wide assessment programs.

As measures of student growth become part of accountability systems, it is essential that such models include student performance on its AA-AAS. To leave students with disabilities being assessed by AA-AAS out of the growth component of the assessment and accountability program would be a violation of IDEA.

We appreciate your consideration of our comments and stand ready to assist the Department in the ESEA Flexibility process.

Sincerely,

Association of Assistive Technology Act Programs
Bazelon Center for Mental Health Law
Council of Parent Attorneys and Advocates
Council for Learning Disabilities
Disability Rights Education & Defense Fund
Easter Seals
Epilepsy Foundation
Mental Health America
National Alliance on Mental Illness
National Association of Councils on Developmental Disabilities
National Association of School Psychologists
National Down Syndrome Congress
National Down Syndrome Society
National Parent Teacher Association
The Advocacy Institute
The National Center for Learning Disabilities
The National Council on Independent Living
The National Disability Rights Network
United Cerebral Palsy

The Consortium for Citizens with Disabilities is a coalition national consumer, advocacy, provider and professional organizations headquartered in Washington, D.C. Since 1973, the CCD has advocated on behalf of people of all ages with physical and mental disabilities and their families. CCD has worked to achieve federal legislation and regulations that assure that the 54 million children and adults with disabilities are fully integrated into the mainstream of society.

During debate on the Senate HELP Committee bill to amend the Elementary and Secondary Education Act (ESEA) on October 19-20, HELP committee members rejected an amendment that sought to remove any limitations on the numbers of students with disabilities who can be assessed via alternate assessments for school accountability purpose.

Senators voting against the amendment:

Tom Harkin (D- IA)
Barbara A. Mikulski (D- MD)
Jeff Bingaman (D- NM)
Patty Murray (D-WA)
Bernard Sanders (I) (VT)
Robert P. Casey, Jr. (D- PA)
Kay R. Hagan (D-NC)
Jeff Merkley (D-OR)
Al Franken (D-MN)
Michael F. Bennet (D-CO)
Sheldon Whitehouse (D-RI)
Richard Blumenthal (D-CT)
Lisa Murkowski (R-AK)
Mark Kirk (R-IL)

Senators voting in favor of the amendment:

Michael B. Enzi (R-WY)
Lamar Alexander (R-TN)
Richard Burr (R-NC)
Johnny Isakson (R-GA) (amendment sponsor)
Rand Paul (R-KY)
Orrin G. Hatch (R-UT)
John McCain (R-AZ)
Pat Roberts (R-KS)

Video of the debate is available here.

Thanks to all who worked to stop this amendment! Our letter of thanks to Senators who voted against the Isakson amendment is here.

SENATOR ISAKSON PROPOSAL WOULD DISCRIMINATE AGAINST CHILDREN WITH DISABILITIES

It is expected that Senator Isakson (R-GA) will offer an amendment during Senate HELP Committee consideration of the Elementary and Secondary Education (ESEA) Reauthorization Act of 2011 on October 19th.  The Isakson amendment would allow schools to discriminate against student with disabilities by significantly lowering the academic expectations for all students with disabilities.

This proposal was part of S 1571, a bill to amend ESEA which was introduced by Senator Isakson in September. S 1571 is strongly opposed by advocates for students with disabilities!!

Our kids need your help today!  Tell your Senator to vote NO on the Isakson Amendment because students with disabilities deserve access to the same education as other students!  It is especially important to contact the members of the Senate HELP Committee, from NM, IA, MD, WA, VT, PA, NC, OR, MN, CO, RI, CT, WY, TN, NC, GA, KY, UT, AZ, KS, AK, IL.

The Isakson amendment would remove the limits on how many students with disabilities can be counted as being proficient on state assessments or making adequate growth toward proficiency (also called “on track” in proposed legislation) by using less challenging systems of standards and assessments.  This amendment would allow schools to take millions of students with disabilities off track for a regular high school diploma as early as 3^rd grade when assessment decisions are made in schools, relegating them to lower career and college expectations—simply because they receive special education services. 

• The Isakson amendment INCORRECTLY promotes that most students with disabilities can’t learn or achieve when most students with disabilities are able to learn and achieve, just like all other students, when provided appropriate services and supports.
• The Isakson amendment promotes abuse and overuse of alternate assessments by allowing any student with a disability to be tested through these assessments.
• The Isakson amendment will turn back the clock on the advances made in educating students with disabilities over the past 10 years.

CALL TODAY!!.   Call your Senators 202-224-3121 (TTY 202-225-1904).  If you do not know who they are, you can look them up at www.senate.gov.  Ask for the staff member who handles education or disability.  Tell them to vote NO on the Isakson Amendment on October 19th.

Send an email – You can email your Senators through a Web Form available on the Senate website, http://1.usa.gov/Senat

Want to make a bigger impact? Personalize your message.

Members of Congress pay particular attention to personalized messages from their constituents. Include a personal story about how your child has had academic success and has achieved in the regular classroom with his/her peers due to high expectations and appropriate services and support.

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Message: Vote NO on Isakson amendment to lift caps on alternate assessments for students with disabilities

Dear Senator (on HELP Committee)

Under current law and regulations, States have established a set of assessments and modified (lower) standards for children with disabilities who are supposedly not able to participant in regular assessments even with accommodations, due to the impact of their disability.  This is commonly referred to as the 2% regulation.  (Currently, half of all students with disabilities go to school in states that have already implemented this ‘modified assessment.’)

Under current ESEA regulations, States are only permitted to use a limited amount of these assessment results in their accountability systems, the results of approximately 20% of students with disabilities.  There is also a similar regulation for students with the most significant cognitive disabilities which also limits the number of results for accountability purposes to approximately 10% of students with disabilities.  This is commonly referred to as the 1% regulation.

The Isakson amendment would remove the limits on how many students with disabilities can be counted as making sufficient progress using less challenging systems of standards and assessments.  This amendment would allow schools to take millions of students with disabilities off track for a regular high school diploma as early as 3^rd grade when assessment decisions are made in schools, relegating them to lower career and college expectations—simply because they receive special education services. 

Please vote NO on this amendment so that students with disabilities can have the same opportunities to achieve college and career ready standards as all other students. 

This proposal is both unnecessary and discriminatory! I request that you oppose this amendment.

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After passing the most sweeping changes in federal education policy by passing No Child Left Behind (NCLB) back in 2001, the Republicans in Congress now want to turn back the clock on education reform and accountability.

As noted in Why Students with Disabilities Need No Child Left Behind, NCLB has finally brought students with disabilities into state and district-wide assessments. Despite a requirement added to the Individuals with Disabilities Education Act (IDEA) in the 1997 amendments requiring all students with disabilities to be included in state and district-wide assessments, it was not until the passage of NCLB that schools, school districts, and states finally began to include all students in the state’s accountability system, to teach them what they have a right to learn and to report their performance.

In Rewards and Roadblocks: How Special Education Students are Faring Under No Child Left Behind, the groundbreaking report authored by The Advocacy Institute for the National Center for Learning Disabilities, we documented years of excluding students with disabilities from state assessments or testing them with tests designed for students in lower grades (a practice called “out-of-level testing” not allowed under NCLB).

Some argue that NCLB’s requirements are too harsh and students with disabilities shouldn’t be expected to become proficient on state standards in reading and math – that students are frustrated by tests they can’t pass and teachers are being asked to perform miracles. Excluding students with disabilities from accountability systems would let us get back to the real business of special education: making students feel good about themselves.

Those critics may just get their wish! A band of Republicans in the U.S. Senate have introduced a bill to reauthorize the Elementary and Secondary Education Act (ESEA, known as NCLB) that will roll back the clock on the progress made by students with disabilities because of key provisions of NCLB. It’s S. 1571, sponsored by Senator Johnny Isakson of Georgia, and its part of a package of bills to address NCLB.

While S. 1571 pretty much annihilates every aspect of NCLB – mainly by letting states do their own thing (I think we’ve been there, done that) it doesn’t stop there when it comes to students with disabilities. Rather, it takes direct aim at this particular group of students by providing states with the opportunity to put all students with IEPs into alternate assessments – those assessments designed for a very small group of students with disabilities and currently permitted by NCLB regulations with strict limitation.

Whether there is a continuing need for several alternate assessments, which students should take them, how to decide who takes what, and what restrictions should be placed on their use is really not the issue here. The issue is that S. 1571 discards all students with disabilities – simply because they have disabilities. Sounds a bit discriminatory.

Today the Senators sponsoring S. 1571 will receive a letter signed by 37 disability organizations and associations. The letter points out an array of issues that will work against students with disabilities if S. 1571 became law.

Soon we will see a bill to reauthorize ESEA from the Senate committee with jurisdiction, the Health, Education, Labor and Pensions Committee – or HELP. We’re hoping for a more respectful approach to students with disabilities. We’ve never needed HELP more than now.

See also: Senate Republicans’ ESEA bill rolls back accountability for Our Kids

Our Kids Count is flummoxed by information regarding “alternate assessments” included in the new ESEA Flexibility materials released Sept. 23, 2011, by the US Dept. of Education (ED). The flexibility seeks to provide States with the ability to get a waiver for ten provisions of ESEA (currently known as No Child Left Behind) and their associated regulatory, administrative, and reporting requirements (presumably because Congress has failed to produce an update to ESEA).

However, ED has also taken the liberty of redefining the requirement regarding “alternate assessments” for students with disabilities in its Flexibility package.

Current ESEA requires all States to have assessment systems that include:

(2) Alternate assessments. (i) The State’s academic assessment system must provide for one or more alternate assessments for a child with a disability as defined under section 602(3) of the Individuals with Disabilities Education Act (IDEA) whom the child’s IEP team determines cannot participate in all or part of the State assessments under paragraph (a)(1) of this section, even with appropriate accommodations. 34 C.F.R. § 200.6(a)(2)

The ED ESEA Flexibility definition of “High-Quality Assessment” includes this requirement:

provides for alternate assessments based on grade-level academic achievement standards or alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities, consistent with 34 C.F.R. § 200.6(a)(2)

So, the ED ESEA Flexibility appears to substantially change what States must do regarding alternate assessments for students with disabilities — making the requirement into an explicit choice between an alternate assessment on grade-level achievement standards (AA-GLAS) and an alternate assessment on alternate achievement standards (AA-AAS) …two alternate assessments that are very different, according to ED. What’s the difference? The following explanation of AA-GLAS and AA-AAS is from: Alternate Achievement Standards for Students With the Most Significant Cognitive Disabilities, Non-Regulatory Guidance, U.S. Dept. of Education, August 2005, at page 16:

Q: What are alternate assessments based on grade-level achievement standards, and how are scores from these assessments incorporated into the accountability system?

A: An alternate assessment based on grade-level achievement standards must address the same content and hold students to the same expectations as does the regular test. As part of the standards and assessment peer review process under Title I, a State must document that its results from an alternate assessment based on grade-level achievement standards are comparable in meaning to its results from the regular assessment for the same grade level.  Further, alternate assessments need to meet the general Title I requirements for assessments. For AYP calculations, results from an alternate assessment based on grade-level achievement standards should be treated in the same manner as results from the regular assessment. The 1.0 percent cap does not apply to those results.

Q: What are alternate assessments based on alternate achievement standards?

A: An alternate assessment based on alternate achievement standards may cover a narrower range of content (e.g., cover fewer objectives under each content standard) and reflect a different set of expectations in the areas of reading/language arts, mathematics, and science than do regular assessments or alternate assessments based on grade-level achievement standards.  The questions on an alternate assessment might be simpler than those on a regular assessment or the expectations for how well students know particular content standards may be less complex but still challenging for students with the most significant cognitive disabilities. If a State chooses to use such assessments, it must establish alternate achievement standards through a documented standards-setting process; the assessments based on alternate achievement standards must yield separate results for reading/language arts, mathematics, and (beginning in the 2007-08 school year) science. Proficient and advanced scores in reading/language arts and mathematics from an alternate assessment based on alternate achievement standards may be used in AYP decisions in the same manner as any other scores, subject to the 1.0 percent cap at the LEA and State levels.

According to a report prepared for ED’s National Center for Special Education Research,  State Profiles on Alternate Assessments Based on Alternate Achievement Standards, A Report From the National Study on Alternate Assessments, every state except one had an AA-AAS in place in the 2006-2007 school year. Given that, ED’s Flexibility provision regarding alternate assessments would appear to essentially preclude the development of an AA-GLAS, just the type of assessment many students with disabilities need!

(To be clear, the Individuals with Disabilities Education Act (IDEA) has required all States to have alternate assessments for students with disabilities who can not participate in the general assessment since 1997.)

More on ED’s new ESEA Flexibility:

NPR report :: Ed Week Special Education Blog

Last week a group of Republican Senators introduced a package of bills to address several aspects of the Elementary and Secondary Education Act (ESEA) currently known as No Child Left Behind (NCLB).

Among the bills is S. 1571, The Elementary and Secondary Education Amendments Act of 2011 introduced by Senator Johnny Isakson (R-GA). S. 1571 proposes to eliminate – almost entirely – federal accountability requirements of student performance. It mostly allows States to develop their individual accountability systems, eliminates “adequate yearly progress” and requires that ONLY the bottom 5% of schools engage in some sort of school improvement activity. Just how those bottom 5% of schools are to be identified is also left to the states.

However, on one issue S. 1571 speaks loud and clear: States need NOT hold students with disabilities accountable to learning and achieving at the same level as their nondisabled peers. To facilitate this, S. 1571 lets States use alternate assessments to measure the performance of any – and perhaps all – students with disabilities.

Known currently as the 1% rule and 2% rule, these alternate assessments don’t measure students on the same academic content as their same-grade peers. As such, student performance on these alternate assessment don’t provide parents with information about how their children are doing on the academic content expected to be learned at their grade level. Seems that this type of information isn’t important for students with disabilities.

The National Center for Learning Disabilities has communicated its concerns about these provisions in S. 1571. Groups working on behalf of minority students have also spoken out, like this blog from the president of La Raza.

Current outcomes for students with disabilities not only do not warrant an expansion of testing students with alternate assessments, these sobering facts demand an increased effort to do better. For example, minority students with disabilities graduate with a regular diploma at alarmingly low rates, as shown below. Yet S. 1571 also eliminates current requirements for all states to use a uniform graduation rate calculation, to report graduation rates by student subgroups, including students with disabilities, and to set annual graduation targets to close the gaps between student groups.

In short, the Republican proposal will let this bad situation get worse!

The Obama Administration has announced plans to provide relief from key provisions of the No Child Left Behind Act (NCLB) – the current version of the Elementary and Secondary Education Act – to those states and districts that choose to move forward with education reform. The decision is motivated by the lack of action by Congress on an ESEA reauthorization, which was due several years ago.

The decision was announced on August 8th by Melody Barnes, Director of the Domestic Policy Council at the White House, and Education Secretary Duncan. The press announcement explains that NCLB is “forcing districts into one-size-fits-all solutions that just don’t work. The President understands this and he has directed us to move ahead in providing relief—but only for states and districts that are prepared to address our educational challenges.”

The Education department also released 5 Questions About NCLB Flexibility. Final details on ED’s NCLB flexibility are expected to be released in September.

What does this mean for students with disabilities?

While there is widespread agreement that NCLB has flaws that need fixing, the positive impact of the 2001 law on students with disabilities is undeniable. A report from the National Center for Learning Disabilities, Rewards and Roadblocks: How Special Education Students are Faring Under No Child Left Behind, determined that several of the new provisions incorporated into NCLB served to focus new attention on the academic performance of students with disabilities.

Exactly how the requirements of NCLB will be waived via ED’s “flexibility” process remains to be seen. Apparently ED will allow states to redefine adequate progress for students in various ways. If states are allowed to define adequate progress for students with disabilities  as something different or inferior to other students, much of the focus brought about by NCLB will be lost. Stay tuned.

Additional Information on NCLB Flexibility: 

June 12, 2011: ED Secretary Arne Duncan pens Op-Ed on Politico announcing his intent to develop a plan that trades regulatory flexibility for reform if Congress doesn’t reauthorize ESEA before the next school year begins.

June 17, 2011: Advocacy organizations send joint letter to ED Secretary Duncan regarding ED plan to provide regulatory relief and waivers of provisions of the Elementary and Secondary Education Act (ESEA).

June 23, 2011: Representative Kline, chair of the House Education and Labor Committee, sent a letter to Secretary Duncan questioning the Department’s legal authority to grant conditional ESEA waivers.

June 28, 2011: Congressional Research Service releases analysis of the Secretary of Education’s Waiver Authority regarding ESEA requirements.

July 6, 2011: ED Secretary Arne Duncan responds to Representative Kline’s June 23rd letter.

This week the majority on the House Education and Labor Committee introduced The State and Local Funding Flexibility Act (H.R. 2445), a bill to “provide states and local school districts maximum flexibility in how they use federal education dollars” according to the press release.

Ranking member George Miller released a statement asserting that H.R. 2445 “makes dangerous changes in federal education policy at the expense of poor and minority students.”

Among the provisions in H.R. 2445, it “Permits states and school districts to increase funds to support K-12 education programs that meet the needs of their individual classrooms, such as extra reading instruction or additional technology. Schools would also have the option to support early intervening services authorized under the Individuals with Disabilities Education Act (IDEA).”

The provision allowing schools to move federal funds from programs authorized under the ESEA to IDEA’s ‘early intervening services” provision is an underhanded attempt to garner support for the bill from those who are concerned about students with disabilities.

In fact, the “early intervening services” provision expressly states that only students who are NOT currently identified as needing special education or related services. The provision was added to the IDEA in 2004 in an effort to reduce inappropriate referrals to special education, particularly among minority students. [More info on EIS is here.]

So, by allowing schools to move ESEA funds to IDEA’s EIS provision, the nation’s 6 million students with disabilities are expressly prohibited from benefiting from those funds. But, by mentioning IDEA among the laundry list of “alternative” programs allowed by the bill, supporters of IDEA funding may well be mislead into thinking this will work to the benefit of students with disabilities.

This type of trickery should put advocates for students with disabilities on full alert! On Wednesday, July 13, the Education and the Workforce Committee will mark up and vote on H.R. 2445.

Join other organizations, such as the Council for Exceptional Children, in expressing opposition to this bill. Send a message to your member of the House of Representatives. Ask that your member encourage House Education and the Workforce Committee members to vote against the State and Local Funding Flexibility Act (H.R. 2445) because it allows the transfer of federal funds out of programs currently used by many of the nation’s students with disabilities (such as Title I services) into a program allowable under IDEA called ‘early intervening services’ that cannot be used to serve students with disabilities!