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

February 18th, 2014

ATTENTION MICHIGAN ADVOCATES FOR STUDENTS WITH DISABILITIES

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.

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

BACKGROUND

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 NEW OUT-OF-LEVEL TESTING PROPOSAL

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.

Rationale

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.

WHY THIS IS A BAD PROPOSAL

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

Students with disabilities perform poorly in TUDA

December 23rd, 2013

December saw the release of the results of the 2013 TUDA – the Trial Urban District Assessment – part of the National Assessment of Educational Progress (NAEP) conducted by the U.S. Dept. of Education. (We blogged about the release of the NAEP at the state and national levels earlier.)

The TUDA reports the achievement of public school students in 21 urban districts in reading and math at grades 4 and 8. Results are broken down by racial/ethnic groups as well as special populations, such as students with disabilities and students eligible for free/reduced-price lunch meals. More info on TUDA is available here.

The achievement of students with disabilities (including both IDEA and 504 eligible students) varied substantially across the TUDAs. However, few districts achieved at a level equal to or better than the nationwide level for students with disabilities.

While most participating districts performed below the nationwide rate on all measures, some districts stand out as exceedingly poor performers. Only one district achieved exceptionally good performance when compared to the nation as a whole. These are:

EXCEEDINGLY POOR (in alphabetical order): Cleveland, Detroit, Fresno, Los Angeles, Milwaukee

EXCEPTIONALLY GOOD: Hillsborough County (FL)

Hillsborough County in Florida was the only district participating in TUDA that outperformed the nation on all four measures (4th/8th Reading and Math). Hillsborough’s TUDA results were reported in the Tampa Bay Newswire.

The performance of students with disabilities compared to those without disabilities is shown below.

MATH – Grade 4

2013 TUDA Math 4th

 MATH – Grade 8

2013 TUDA Math 8th Grade

READING – Grade 4

2013 TUDA Reading 4th Grade

READING – Grade 8

2013 TUDA Reading Grade 8

NAEP and Students with Disabilities: No where to go but up!

November 7th, 2013

The results of the 2013 National Assessment of Educational Progress (NAEP) in Reading and Math were released today. Details are available here. User-friendly digital tools let you display results by state and student groups such as students with disabilities.

Sadly, the performance of students with disabilities has shown little if any improvement over the last three administrations (2009-2011-2013) and the gaps between students with disabilities and those without disabilities continue to be substantial.

However, there has been a substantial improvement in the rate of exclusion of students with disabilities, i.e., the percentage of students with disabilities selected to participate in the sample who were not tested. This practice was addressed by a resolution of the National Assessment Governing Board in 2010. The resolution sought to have students with disabilities participating at a rate of at least 85% in every state. As a result, exclusion rates have plummeted, as shown in the table below. This high rate of participation makes the NAEP results for students with disabilities more representative of the group as a whole. However, high exclusion rates still exist in some states, such as California, Georgia and Maryland. Details on exclusion rates by state on each NAEP assessment are available here.

NAEP exclusion of SDs

Turning to achievement, students with disabilities continue to perform poorly on all NAEP measures.

READING – 4TH GRADE:

NAEP 2013 Reading 4th grade

 

READING – 8TH GRADE:

NAEP 2013 Reading 8th

MATH – 4TH GRADE:

NAEP 2013 Math 4th

MATH – 8TH GRADE:

NAEP 2013 Math 8th

 

No Small Task: Phasing Out the Alternate Assessment on Modified Achievement Standards

August 14th, 2013

For purposes of accountability under the Elementary and Secondary Education Act (ESEA), states were allowed to develop Alternate Assessments based on Modified Academic Achievement Standards (AA-MAS) beginning back in 2005, despite serious objections from disability rights groups like the Center for Law and Education.

While most states did not develop this assessment, those that did are now faced with the need to discontinue its use.

The Obama administration signaled its intent to do away with the AA-MAS back in March 2011 when Ed Secretary Arne Duncan said …

“I want to say here and now for the record that we are moving away from the 2% rule. We will not issue another policy that allows districts to disguise the educational performance of 2% of students. That’s unacceptable, and that must change. We have to expect the very best from our students and to tell the truth about student performance so that we can give all students the supports and the services they need.”

Recently the Education Taskforce of the Consortium for Citizens with Disabilities called for an end to the policy authorizing the AA-MAS in a letter to the White House.

And, for states to receive approval for ED’s ESEA Flexibility (aka “waivers”), they needed to commit to phasing out the AA-MAS by 2014-2015.

Most recently, the US Dept. of Education released a proposed federal regulation that will require all states using the AA-MAS to stop its use (for NCLB accountability purposes) by the start of the 2014-2015 school year. Comments to the proposed regulation must be submitted by October 7, 2013. (See Huffington Post article here.)

So things would appear to be pretty rosy, yes?

NOT SO FAST.

- In school year 2010-2011, more than 400,000 students with disabilities were assigned to take an AA-MAS in reading, math, or both. Despite provisions in the federal regulations designed to prevent overuse, some states have put way too many students into the AA-MAS. Here are the top offenders:

1st Place: OKLAHOMA – 52% in Reading, 49% in Math
2nd Place: TENNESSEE – 42% in Reading and Math
3rd Place: TEXAS -38% in Reading, 40% in Math
4th Place: CALIFORNIA – 39% in Reading, 27% in Math (See more about CA here.)
5th Place: CONNECTICUT – 30% in Reading, 25% in Math

Our complete report on states’ use of the AA-MAS is available here.

- An analysis by the National Center on Educational Outcomes uncovered lots of shortcomings in states’ plans to phase out the AA-MAS.

So, the road ahead for more than 400,000 students with disabilities could be very rocky. Students unprepared to move from an alternate assessment to the regular assessment are highly likely to fail.

Advocates in states are currently administering an AA-MAS  (CA, CT, GA, IN, LA, MD, MI, MN, NC, ND, OK, TN, TX and VA). Advocates in these states should press state and local school districts to provide a sound transition plan for these students.

See also: ESEA Flexibility: Issues for Students with Disabilities

The Ills of H.R. 5

July 22nd, 2013

The U.S. House of Representatives has passed a bill to reauthorize the Elementary and Secondary Education Act, currently known as No Child Left Behind (NCLB).

The House bill, H.R. 5, the “Student Success Act,” strips out most of the key provisions of NCLB and established some dangerous new provisions that will have a serious impact on students with disabilities.

Here are some of H.R. 5′s most dangerous ills:

  • eliminates current system of school accountability – known as Adequate Yearly Progress (AYP) – to be replaced by state-developed accountability systems (This is similar to what states have been allowed to do under ED’s ESEA Flexibility program – aka “waivers.” We’ve reported on many issues regarding students with disabilities under these state-developed systems);
  • requires assessments to be administered to not less than 95 percent of all students and every student subgroup – including students with disabilities – but requires no action if schools fail to meet this requirement (as required by NCLB);
  • requires schools to report on graduation rates – using the Four-Year Adjusted Cohort Graduation Rate – as part of school report cards, but requires no action for high schools with low graduation rates for all students or any student subgroup (read about the graduation rate of students with disabilities);
  • eliminates all requirements regarding actions and interventions for persistently poor performing schools;
  • eliminates all restrictions on use of Alternate Assessments on Alternate Academic Achievement Standards (AA-AAS) for students with disabilities (known as the “1% rule” – this alternate assessment is intended only for students with the most significant cognitive disabilities, estimated to be about 1/2 of one percent of all students. Current ESEA regulation limits the proficient/advanced scores on the AA-AAS that can be counted for school accountability purposes at one percent of all students assessed);
  • allows high schools to count students taking the AA-AAS as having received a regular high school diploma;
  • allows states to develop computer-based adaptive tests (CAT) and to use results from such assessments – including items below the student’s grade level – as a measure of both growth and proficiency in the accountability system. (For information on CAT and concerns regarding its use for students with disabilities, see this statement by the Consortium for Citizens with Disabilities’ Education Task Force);
  • eliminates provision that teachers be “highly qualified” and makes use of teacher evaluation systems that include student performance optional for states;
  • allows Title I money to follow students to the school of their choice, including charter schools. (Charter schools have been found to under enroll students with disabilities);
  • requires states to set aside 3 percent of Title I money to provide competitive grants to school districts
    that wish to offer tutoring or public school choice to their students, under a new program called “direct student services” – despite a long history of school districts not using Title I funds required for supplemental educational services under NCLB;
  • locks in post-sequestration funding levels (Title I lost $725 million in federal funds);

While H.R. 5 maintains the provision in NCLB that requires states to report on the performance of students, including by student subgroups, such as students with disabilities, poor and persistent performance of any or all of these groups has no consequences.

H.R. 5 was opposed by all Democrats in the House, who offered their own substitute bill. Twelve Republicans also opposed the bill  (see vote here). Here is a long list of organizations that opposed the bill.

Keep up to date on all Congressional activities to reauthorize ESEA.

 

Most States Get Passing Grade for IDEA Implementation

July 9th, 2013

The U.S. Dept. of Education (ED) has released the latest round of determinations regarding states’ implementation of the Individuals with Disabilities Education Act (IDEA). These determinations, based on data for fiscal year 2011, found 38 states to be meeting the requirements of IDEA while a handful of states (12 plus DC) were found to need assistance or intervention.

The determinations by state are as follows (details available here):

– MEETS REQUIREMENTS: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Republic of Palau, Republic of the Marshall Islands, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming

- NEEDS ASSISTANCE (one year): Colorado, Delaware, Maine,

- NEEDS ASSISTANCE (two or more consecutive years):  Illinois, Indiana, Iowa, Louisiana, New York

- NEEDS INTERVENTION (seven consecutive years): District of Columbia

NEW! ED has also released – for the first time – a comprehensive profile of every state. Called a “Data Display,” these new profiles provide “certain State-reported data in a transparent, user-friendly manner” according to ED. Be sure to check out your state’s Data Display by clicking on the link below.

Alabama Kentucky North Dakota
Alaska Louisiana Ohio
Arizona Maine Oklahoma
Arkansas Maryland Oregon
California Massachusetts Pennsylvania
Colorado Michigan Puerto Rico
Connecticut Minnesota Rhode Island
Delaware Mississippi South Carolina
District of Columbia Missouri South Dakota
Florida Montana Tennessee
Georgia Nebraska Texas
Hawaii Nevada Utah
Idaho New Hampshire Vermont
Illinois New Jersey Virginia
Indiana New Mexico Washington
Iowa New York West Virginia
Kansas North Carolina Wisconsin
Wyoming

Action Needed to Protect Children in Virginia from the Use of Restraint, Seclusion and Aversives

May 16th, 2013

UPDATE: We are pleased to report a successful outcome on this issue. Thanks to the quick work by parents and advocates in objection to the first proposed regulations, the VDOE solicited additional comments and revised the proposed regs to reflect the concerns expressed by the public. The resulting regulations are available here. The VBOE approved the revised regulations at its July 27, 2013 meeting.

A great example of advocacy at work!

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

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

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

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

ACTION NEEDED!

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

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

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

Thank you for your action on this important issue.

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

UPDATE: How Safe Is The Schoolhouse?

April 9th, 2013

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

The report finds that:

  • Only 12 states by law limit restraint of all children to emergencies threatening physical danger for all children; 17, limit restraint of children with disabilities in this way.  Only 9 states protect all children from non-emergency seclusion (1 by banning it entirely); only 15 protect children with disabilities from non-emergency seclusion. 33 states lack laws requiring that parents of all children be informed of restraint/seclusion; 22, lack them for children with disabilities.
  • Restraints that impede breathing and threaten life are forbidden by law in only 18 states for all children; 25 states, for children with disabilities.  Children locked in closets and rooms unobserved have been killed and injured, when staff are not watching them.  But 29 states allow schools to seclude children with disabilities without requiring staff to continuously watch them; the number rises to 39 for all children. Mechanical restraints include chairs and other devices that children are locked into; duct tape and bungee cords, ties, rope, and other things used to restrain children; and other devices.  Only 14 states ban mechanical restraint for all children; 18, for all children.  Only 13 states ban dangerous chemical restraints for all children.
  • In general, 17 states have statutes or regulations providing meaningful protections against restraint and seclusion for all children, 30 for children with disabilities.  These have the force of law and must be obeyed.  Even these states offer varying protections, with key safeguards present in some states and missing in others.  In addition, 2 states have laws protecting against one procedure but not the other.  8 have very weak laws (e.g., Nebraska’s regulation instructs school districts to adopt any policy they choose and imposes no requirements whatsoever); and 12 have nonbinding, suggested guidelines that have no legal force and that are more easily changed by the State Department of Education.
  • In December 2009, Congressman George Miller introduced the first national  restraint/seclusion bill, and in 2011, Senator Harkin introduced a similar bill.  Together, the Miller and Harkin bills have had a substantial impact, causing states to adopt and strengthen restraint/seclusion laws to incorporate several of their features.  14 states have either adopted new laws (statutes/regulations) or substantially overhauled existing laws to incorporate their requirements.  For example, 11 incorporate the requirement that physical restraint may not be used unless there is an imminent danger of physical injury for children with disabilities, and 9 for all children.  Since the Harkin bill was introduced, 3 states have added requirements that restraints not prevent a child from communicating that he/she is in medical distress (e.g. cannot breathe).   Of the 20 students who died in the GAO report, at least 4 verbal children told staff that they could not breathe.  Many children have disabilities that prevent them from verbally communicating.

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

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

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