April 26, 2012

The Florida Association of Special Education Attorneys has submitted comments to the Florida Board of Education and Dept. of Education concerning the recommendations of the Taskforce on Inclusion and Accountability. Read the letter here.

The Taskforce was convened by the Florida Board of Education to develop new policies on including all of Florida’s students with disabilities in the state school accountability system. This change is required for Florida to meet the conditions of the ESEA waiver from the U.S. Dept. of Education. Information on the Taskforce, including the full report, is available here.

Among the recommendations, the Taskforce wants consideration of student IEP goals as a means for accountability. This issue has been examined by the U.S. Dept. of Education and found to be inappropriate. We report on it here.

Thanks to the Florida Association of Special Education Attorneys for its thoughtful comments to the FL BOE.

Florida was among the first group of states to receive approval from the U.S. Dept. of Education (USED) to move away from several requirements of the current version of the Elementary and Secondary Education Act (ESEA) – better known as No Child Left Behind.

The sunshine state asked to be allowed to use its system of assigning schools a grade (A-F) as its accountability scheme under ESEA. (To date, the state has been running two parallel systems.) Most of what the state proposed passed muster with USED – except for the fact that Florida’s system doesn’t include students with disabilities or English language learners. While these students count in the area of improvement, how they score on the FCAT is not taken into consideration in the school grading system.

In its letter of approval to Florida’s Dept. of Education, USED stated that Florida must include ALL students with disabilities and English language learners, stating:

“Our decision to place conditions on the approval of Florida’s request is based on the fact that Florida has not formally changed its inclusion policies to ensure that all students, including all English learners and all students with disabilities, are fully included in the State’s system of differentiated recognition, accountability, and support.” 

So the issue came before the FL Board of Education (BOE) at its meeting on February 28th. Proving to be too thorny an issue for board members to tackle, the BOE voted to appoint a citizen task force to sort out the details of how Florida will comply with the conditions of its waiver.

Among the issues to be resolved is how to include the students with disabilities who attend special schools. (We assume that such students are placed into these segregated settings by their IEP Teams.) The Florida Association of Special Education Attorneys has proposed an appropriate solution to this problem: assign the performance of these students to the school they would attend if not otherwise placed in a segregated school. (Read the full statement here)

While the FL BOE couldn’t bring itself to address the issue of how to include students with disabilities and ELLs fully in its accountability system, it was able to decide on ways to take the sting out of it – an altogether much more important issue. To ensure that the result doesn’t hurt too bad (unlike the hurt felt by students with disabilities), FL’s BOE approved new policies to keep schools from dropping more than one letter grade at a time. (See this article for more details)

Sadly, the angst brought about by the change forced on Florida by the USED is the result of a system that excluded a significant number of the state’s students. Such a system deceives its citizens and shortchanges the students being ignored.

Kudos to USED for exposing this system of exclusion. Now let’s get it fixed.

The Virginia Coalition for Students with Disabilities reviewed the Virginia Dept. of Education’s Request for ESEA Flexibility and submitted comments to the VDOE on Feb. 16, 2012.

Among the areas of concern identified in the comments are:

• INADEQUATE STAKEHOLDER INPUT
• SUB-GROUP ACCOUNTABILITY
• TEST PARTICIPATION
• CURRENT ‘N’ SIZE
• ALTERNATE ASSESSMENTS
  

Virginia’s lack of effort to meaningfully engage the public in development of its ESEA Flexibility Request – filed with the U.S. Dept. of Education on Feb. 28, 2012, has resulted in serious flaws in the Request.

Virginia Coalition for Students with Disabilities Comments on VA ESEA Flexibility Request

FOR IMMEDIATE RELEASE – February 27, 2012
Contacts:
Rosemary N. Palmer, (850) 668-9203 (Tallahassee)
Allison Hertog, (305) 663-9233. or
Kimberly O’Spire 561-307-9620 (Miami)

Attorneys for Parents of Students with Disabilities Support Accountability

The Florida Association of Special Education Attorneys is an association of attorneys who represent parents of students with disabilities. There are almost 362,000 students identified as students with disabilities in Florida. http://www.fldoe.org/ese/pdf/2011LEA/SEA.pdf

We applaud and support DOE’s proposal to link the progress of students with disabilities who are placed in segregated schools to their home zone schools. If there is no accountability for schools that serve only disabled students (or alternative and second chance schools that are disproportionately populated by students with disabilities, identified or not), schools will continue to have an incentive to place children in these more restrictive environments. We instead urge that there be incentives to serve these students effectively so they can learn in regular classrooms in their local schools, participate in extracurricular activities, and make friends with students who are not disabled.

For 2011, only 35% of the nearly 362,000 students with disabilities were at Level 3 in reading, and 41% in math. A mere 49% graduated with their cohort. http://schoolgrades.fldoe.org/default.asp. Yet only nine percent were identified as students with intellectual disabilities. http://www.fldoe.org/ese/pdf/b-621.pdf

Too many Florida School Districts have accepted the bigotry of low expectations represented by the position of the Florida Association of District School Superintendents. Their letter opposing DOE’s proposal can be found at http://www.fadss.org/_docs/_content/pressReleases/pr2212012.pdf.

We take a different view because in our practices we have seen students who have made multiple years of
progress in a single year when they finally received research proven interventions and instruction. Regrettably, we have also spoken with many teachers and staff who cannot name or describe research proven interventions or effectively deliver them. Notably, some of these teachers work and teach in the very segregated schools and classes of concern. Teachers and districts need incentives to learn, deliver and help students progress. These new accountability rules are not perfect. However, they are long past due and necessary to prompt school districts to change.

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Find the Florida Association of Special Education Attorneys on FACEBOOK.

Chairman Kline’s Student Success Act (H.R. 3989) will let schools discriminate against students with disabilities by taking them off track to graduate high school and be college and career ready.  It will slash academic expectations for students with disabilities, allowing schools to provide a poor and inadequate education with no accountability.  Please join us and vote against the bill.

Under current law, schools must teach students with disabilities the same challenging curriculum as everyone else. As a result, the law ensures that students with disabilities learn at grade level.  The law also is designed to put pressure on schools when students fall behind to give them the extra support they need.  Only students with the most significant cognitive disabilities take an alternate assessment on alternate achievement standards.  The law allows this alternate assessment for up to 1% of all students (10% of students with disabilities).

But H.R. 3989 bill would change all of this.  It would allow schools to give as many students as they wish the alternate assessments by lifting the 1% cap.  In reality, schools could provide vastly inferior educations, since they would not have to ensure proficiency at grade level.  Under H.R. 3989 no one would be accountable for making sure that students actually learn what they need to graduate and succeed.  If a child struggles to read, the school could simply use an alternate achievement standard–rather than provide the extra assistance he needs to learn to read at grade level.  And if children cannot read, they cannot succeed.

No state gives alternate assessments on alternate standards to more than 10% of students with disabilities.  To ignore this data by eliminating the cap would violate the legal rights of students who do not have the most significant cognitive disabilities and who should not be assessed on alternate standards. As data and student/family experience show, the decision to place a student in the alternate assessment on alternate achievement standards can take students off track for a regular diploma as early as elementary school. These limitations raise concerns for many students who are currently placed in these assessments. The problem would grow if the cap were eliminated.

Rather than continuing to support students with disabilities in achieving a high school diploma and pursuing employment and postsecondary education, the lack of a cap on the use of the assessment virtually encourages schools to expect less from students with disabilities. This will jeopardize their true potential to learn and achieve.  The bill allows 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.  This will relegate them to lower career and college expectations—simply because they receive special education services. 

H.R. 3989:

• allows States and school districts to officially marginalizeevery student with a disability (and their academic potential), and expect less of them by virtue of having a disability.
• 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.
• promotes abuse and overuse of alternate assessments by allowing any student with a disability to be tested through these assessments.
• will turn back the clock on advances made in educating students with disabilities in the past 10 years:
• Most students with disabilities taking the general state assessment
• Improved results in reading and mathIncreased graduation from high school and higher college attendance rates

Use the Action Alert at the National Center for Learning Disabilities to send your message to your member of Congress!

Senator Tom Harkin, Chairman of the Senate Committee on Health, Education, Labor and Pensions and Congressman George Miller, Ranking Member of the House Education and Workforce Committee has sent a letter to U.S. Education Secretary Arne Duncan expressing concern about the lack of accountability for student subgroups in many of the ESEA Flexibility requests submitted to the U.S. Dept. of Education in November.

Specifically, Harkin and Miller point out the proposal  to combine the reporting on student subgroups required to be reported separately in current law, among them the subgroup of students with disabilities. Call ‘em “super groups,” “gap groups” — whatever you like — this change is sure to undermine the progress of students with disabilities!

We urge parents and advocates in states that have proposed this type of new accountability system to voice their concerns.

Read the letter here.

See also: 

ESEA Flexibility Requests: Tips for Protecting Students with Disabilities

Center on Education Policy Waiver Watch

Center for American Progress :: Analysis of Waiver Applications

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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