Archive for the 'Our Kids Count' Category

Number of School Age IDEA-eligible Students Increases 3 Percent in 2022

Tuesday, February 27th, 2024

February 28, 2024.

The U.S. Dept. of Education has released new data on students with disabilities (eligible under the Individuals with Disabilities Education Act or IDEA). Section 618 of the IDEA requires that each state annually submit data about the infants and toddlers, birth through age 2, who receive early intervention services under Part C of IDEA, and children with disabilities, ages 3 through 21, who receive special education and related services under Part B of IDEA.

The new data show the number of IDEA-eligible children in 2022 increased significantly from 2021, which also showed a 2% increase.

Students ages 3-21 increased by 3.8% (additional 277,629 students, totaling 7,630,45) which breaks down as follows:

  • students ages 3-5 (not in kindergarten) increased by 13.6% (additional 64,015 students, totaling 535,392)
  • school age students (ages 5 in kindergarten to 21) increased by 3%, topping 7 million for the first time (additional 213,614 students, totaling 7,095,053).

The percent of the population served under IDEA continues to vary significantly across states, ranging from a high of 13.38% in Maine to a low of 6.37% in Hawaii with a nationwide rate of 9.82%.

CHANGES BY STATE

Changes from 2021 in state-level rates of school age students range from a high of 13.7 percent in Louisiana to a low of just .6 percent in Missouri and West Virginia.

DISTRIBUTION BY RACE AND ETHNICITY

The representation by race and ethnicity of students with disabilities ages 5-21 compared to total school enrollment shows significant under-representation of Asian students, significant over-representation of Black/African American students and slight over-representation of Hispanic/Latino students.

CHANGES IN DISABILITY CATEGORIES

The distribution across disability categories of School Age Students (ages 5 (in kindergarten) to 21) with disabilities in 2022 showed an increase in the Autism category while other categories remain unchanged. Autism now accounts for nearly 13% of school age students with disabilities, up from 10% just 5 years ago.

2021 – 2022 changes by disability categories (see table below) show a significant increase in Autism and Developmental delay.

NUMBER OF YOUNG CHILDREN ALSO SHOWS LARGE INCREASE

The number of children served under IDEA Part C (birth through age 2) also increased in 2022, to 441,515, an increase of 8.7% over 2021.

The race/ethnicity of children served under IDEA Part C is White 48.2%, Hispanic/Latino 28.8%, Black/African American 13.0%, Asian 4.2%, Two or more races 4.9%, American Indian/Alaska Native .62% and Native Hawaiian/Pacific Islander .29%.

The percent of state population served by IDEA Part C varies across states from a high of 11.2% in New Mexico to a low of 1.18% in Arkansas. Nationwide rate is 4.01%.

The section 618 data collection provides data on the following

· School Year 2021-22 Part B Assessment
· School Year 2022-23 Part B Child Count and Educational Environments
· School Year 2021-22 Part B Discipline
· School Year 2021-22 Part B Dispute Resolution
· School Year 2021-22 Part B Exiting
. School Year 2021-22 Maintenance of Effort Reduction and Coordinated Early Intervening Services
· School Year 2021-22 Part B Personnel
· School Year 2022-23 Part C Child Count and Settings
· School Year 2021-22 Part C Dispute Resolution
· School Year 2021-22 Part C Exiting

How the States Stack Up: 2023 IDEA State Determinations

Tuesday, June 27th, 2023

JUNE 27, 2023: The U.S. Dept. of Education (ED) Office of Special Education Programs (OSEP) has released the annual IDEA state determinations for 2023.

The Individuals with Disabilities Education Act (IDEA) requires ED to annually assign every state a “rating” on its implementation of IDEA, based on the state’s performance on its State Performance Plan (SPP). The 2023 determinations are based on performance for fiscal year 2021. Each state is assigned one of the following ratings:
– Meets requirements and purposes of the IDEA Part B
– Needs assistance in implementing the requirements of IDEA Part B
– Needs intervention in implementing the requirements of IDEA Part B
– Needs substantial intervention in implementing the requirements of IDEA Part B

The OSEP Fact Sheet on 2023 determinations is here. How OSEP made the 2023 determinations is explained here.

The map below shows the 2023 determination for each state.

2023 Ratings by state

Changes from 2022 Determinations

  • Rating improved for 6 states: AL, AR, ID, OH, RI, WA
  • Rating dropped for 6 states: GA, ME, OK, OR, NH, VA, as well as the Bureau of Indian Education (not shown on map) and the Federated States of Micronesia
  • Just 6 states have received a Meets Requirements rating each of the past 10 years (2014-2023): KS, MA, MN, MO, PA, WI.

    Get ratings by state for 2014 to 2023 here. (PDF, 1 pg)

Beginning in 2014, OSEP began using the “Results-Driven Accountability” (RDA) Matrix to arrive at state determinations. Our critique of the current RDA process is examined in depth in this report, “Results Driven Accountability Needs Substantial Intervention.” We discuss in detail what’s working and not working after several years of RDA-based state determinations.

Under the current RDA determinations matrix, it is mathematically impossible for all states to achieve a “meets requirements” rating given the heavy use of scoring based on rank-ordering of States. Consequently, as the chart below shows, the number of states earning a “Meets Requirements” rating has changed little under RDA.

Determinations by category 2007-2023

Annual Performance Report documents for states and territories are available on this page. The Results Matrix is found toward the end of the WORD document titled 2023 SPP/APR Submission – Part B.

See also:
How the States Stack Up: 2022 IDEA State Determinations
How the States Stack Up: 2021 IDEA Determinations
How the States Stack Up: 2020 IDEA Determinations
Little Improvement in States’ Implementation of IDEA Part B in 2017

Comment on Your State’s Application for IDEA Part B Federal Funds for FFY 2023

Friday, March 24th, 2023

States are required to submit an annual application for Federal funds to the U.S. Dept. of Education (ED) in order to be eligible to receive their IDEA Part B Federal funds.

States must make their FFY 2023 IDEA Part B applications for Federal funds available to the public at least 60 days prior to submission to ED’s Office of Special Education Programs (due by May 24, 2023), accept public comment for at least 30 days, review and consider all public comments and make any necessary modifications to the application or policies and procedures, as appropriate. This means applications should be posted to SEA websites by March 24, 2023.

Through these applications, states must make a number of “assurances” regarding compliance with IDEA including assuring FAPE is available to all identified students, services are provided in the least restrictive environment (LRE) to the maximum extent practicable, identifying significant disproportionality and many more! States must also provide information on their maintenance of state financial support as well as a list of state special education rule, regulation, or policy that are State-imposed requirement and not required by Part B of the Act and Federal regulations.

More information about the annual application is available in the following documents:

Find your state’s application by visiting your state’s dept. of education special education section.

Below are some documents that can assist in compiling comments to your state application:

2022 State Performance Plan/Annual Performance Report (SPP/APR). Download your state’s latest Part B SPP/APR here. Examine the performance of your state on key indicators such as graduation rate, drop-out rate, performance on annual state assessments. Question low performance on these indicators and if performance equates to FAPE as required by Assurances 1 and 2.

SPP/APR Targets.
Our series of Special Reports can be used to determine the rigor that your state’s targets on key performance indicators. Question targets that seek to achieve little if any improvement.

Annual Determinations.
Check the rating that your state has received over the past years as determined by the annual determination made by the Office of Special Education Programs. The latest determinations are available in this blog. Ratings for 2014 through 2022 are available here. The Results Matrix (a PDF appended to the end of your state’s SPP/APR) provides details on how the rating was determined.

Dispute Resolution Data.
Encourage your state to use dispute resolution data as suggested in this document:
Five Ways to Effectively Use Dispute Resolution Data in State General Supervision Systems to Improve Implementation of IDEA and to make state complaint reports available to the public if they do not currently do so.

New Data: Number of IDEA eligible Students Increased by 2% in 2021

Tuesday, March 21st, 2023

March 21, 2023. The U.S. Dept. of Education has released new data on students with disabilities (eligible under the Individuals with Disabilities Education Act or IDEA). Section 618 of the Individuals with Disabilities Education Act (IDEA) requires that each state annually submit data about the infants and toddlers, birth through age 2, who receive early intervention services under Part C of IDEA, and children with disabilities, ages 3 through 21, who receive special education and related services under Part B of IDEA.

The new data shows the number of IDEA-eligible children in 2021 increased significantly from 2020. Students ages 3-21 increased by 1.9%; school age students (ages 5-21) increased by 2.5% following a slight decline in 2020.

The percent of the population served under IDEA continues to vary significantly across states, ranging from a high of 12.95% in Maine to a low of 6.22% in Hawaii with a nationwide rate of 9.48%.

CHANGES IN DISABILITY CATEGORIES

The distribution across disability categories of School Age Students (ages 5-21) with Disabilities in 2021 showed an increase in the Autism category while other categories such as Specific learning disabilities and Emotional disturbance continue to decline. Autism now accounts for a full 12% of school age students with disabilities, up from 10% just 5 years ago.

NUMBER OF YOUNG CHILDREN RETURNS TO 2019 LEVEL

The number of children served under IDEA Part C also increased in 2021, after a significant decline in 2020. Part C served 407,807 children in 2021 compared to 363,387 in 2020. Equally important, the percent of the population served grew from 3.2% to 3.7%, returning to 2019 level.

The percent of population served under Part C varies by state ranging from 9.95% in Massachusetts to 1.14% in Arkansas.

The section 618 data collection provides data on the following

· School Year 2020-21 Part B Assessment
· School Year 2021-22 Part B Child Count and Educational Environments
· School Year 2020-21 Part B Discipline
· School Year 2020-21 Part B Dispute Resolution
· School Year 2020-21 Part B Exiting
– School Year 2020-21 Maintenance of Effort Reduction and Coordinated Early Intervening Services
· School Year 2020-21 Part B Personnel
· School Year 2021-22 Part C Child Count and Settings
· School Year 2020-21 Part C Dispute Resolution
· School Year 2020-21 Part C Exiting

US Dept. of Ed seeks comments on interpreters and translators in educational settings

Friday, February 10th, 2023

A Request for Information published in the Federal Register on February 8, 2023, is seeking comments on interpreters and translators in educational settings. Comments must be submitted to the US Dept. of Education’s Office of English Language Acquisition (OELA) on or before March 27, 2023 via regulations.gov.

According to the announcement, “OELA’s stakeholders within the educational community have expressed concerns that the communication that takes place between educators, students, parents, families, and legal guardians may be adversely impacted if an interpreter or translator is not prepared to navigate the intricacies of “student pathway to success” meetings (e.g., meetings that address Individualized Education Programs (IEPs), Individualized Family Service Plans (IFSPs), Section 504 plans, disciplinary action, or extracurricular or advanced learning opportunities).”

Thus, OELA invites stakeholders who are aware of policies and practices that are specifically relevant to interpreters and translators in all education settings to address a series of questions when submitting comments.

The issue of inadequate provision of/access to translators for parents in special education communications has been the subject of state complaints, class-action law suits and other civil rights litigation for many years. Some of these activities have resulted in significant efforts, such as:
– In 2021 the Illinois state board of education passed final rules regarding school districts providing interpreters at IEP meetings to support parents whose native language is other than English.
– A recent legal settlement requires Chicago Public Schools to offer translation services to parents of students with disabilities.
– The Washington state legislature recently passed Ch. 107, which requires schools to develop language access plans and more.

The U.S. Dept. of Education’s Office of Special Education Programs has not opined on this issue (with regard to IEP translation) since this statement in 2016 related to a law suit. So, in addition to comments to OELA, it might be time to ask OSEP to provide states with guidance and remind them of the responsibility in IDEA federal regulations at 34 CFR 300.322(e) which states: “The public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English.”

Get your comments into OELA by March 27, 2023, especially if you have good policies and practices to share! Go here to comment.



State-by-State Graduation Rates for Students with Disabilities:: 2019-2020

Tuesday, January 10th, 2023

States are required to report annually to the U.S. Dept. of Education (ED) the “4-Year Adjusted Cohort Graduation Rate (ACGR)” for all students and separately for many student subgroups, including students with disabilities. The 4-Year ACGR for the 2019-2020 school year was released on December 19, 2022.

ABOUT THE ACGR: The ACGR was put into place in 2008 via Federal regulations to help bring uniformity to the way states calculate the high school graduation rate. Reporting began with the 2010-2011 school year. The ACGR was subsequently included in the Every Student Succeeds Act (ESSA) passed in 2015. It was also the subject of non-regulatory guidance released by ED in January 2017.

States are to report only those students who graduated with a “regular high school diploma” in four (or fewer) years. ESSA defines a “regular high school diploma” as the “standard high school diploma awarded to the preponderance of students in a State that is fully aligned with the State’s standards.”

The table below provides the GAP between all students and students with disabilities in 2019-20 by state. (Keep in mind that the GAP would be larger if it were possible to compare students with disabilities to those without disabilities.)
Download the chart (PDF)

ACGR Gap students with disabilities vs. all students 2019-20


The chart below shows the performance of students with disabilities over the ten years since ACGR reporting began. Download the chart (PDF)

ACGR for students with disabilities 2010-11-2019-20

See also:

State-by-state Graduation Rates for Students with Disabilities:
2018-2019
2017-2018
2016-2017
2015-2016

How the States Stack Up: 2022 IDEA State Determinations

Tuesday, June 28th, 2022

JUNE 28, 2022: The U.S. Dept. of Education (ED) Office of Special Education Programs (OSEP) has released the annual IDEA state determinations for 2022. The Individuals with Disabilities Education Act (IDEA) requires ED to annually assign every state a “rating” on its implementation of IDEA, based on the state’s performance on its State Performance Plan (SPP). The 2022 determinations are based on performance for fiscal year 2020. Each state is assigned one of the following ratings:
– Meets requirements and purposes of the IDEA Part B
– Needs assistance in implementing the requirements of IDEA Part B
– Needs intervention in implementing the requirements of IDEA Part B
– Needs substantial intervention in implementing the requirements of IDEA Part B

The OSEP Fact Sheet on 2022 determinations is here.

The map below shows the 2022 determination for each state.

Beginning in 2014 OSEP began using the “Results-Driven Accountability” (RDA) Matrix to arrive at state determinations. We have spent a great deal of time examining RDA. Our critique of the current RDA process is examined in depth in this report, “Results Driven Accountability Needs Substantial Intervention.” We discuss in detail what’s working and not working after several years of RDA-based state determinations. As the chart below shows, the number of states earning a “Meets Requirements” rating has not improved under RDA. Get ratings by state for 2014 to 2022 here. (PDF, 1 pg)


Here is how to locate information for your state’s 2022 determination:
– Go to this page
– Locate your state’s 2022 SPP/APR Submission Part B and State Determination Letters PART B
– Click and download the MS WORD document of the 2022SPP/APR Submission PART B
– Go to the end of the MS WORD document and click on the PDF icon that says “results matrix -2022b.” This document – titled “2022 Part B Results-Driven Accountability Matrix” – provides the scoring for each element of the matrix used to determine the state’s rating.

Recommendations for Revised Section 504 Regulations

Monday, June 27th, 2022

The U.S. Department of Education’s Office for Civil Rights (OCR) has announced that it intends to propose amendments to its regulations under Section 504 of the Rehabilitation Act of 1973, the landmark disability civil rights law. The Department is seeking suggestions from the public to help identify proposals that will best improve current regulations at 34 C.F.R. Part. 104. Interested parties may go to www.ed.gov/policy/rights/reg/ocr/ to submit suggestions.

OVERALL RECOMMENDATIONS

  • OCR should revise the terminology used in the current regulations from “handicap” or “handicapping condition” to “disability” and other outdated language.
  • The ADA Amendments Act provisions must be explicitly integrated into the Section 504 regulations.

SPECIFIC RECOMMENDATIONS

34 CFR Part 104 Subpart D – Preschool, Elementary, and Secondary Education

§104.31 Application of this subpart.

  • Charter schools

Revised regulations should explicitly state that all public schools, including public charter schools, public virtual schools, and typical public schools, as well as any non-public schools that receive federal financial assistance directly or indirectly, are bound by the provisions of Section 504, and that students with disabilities (and those seeking to attend) in these institutions have the same Section 504 rights as other public school students with disabilities. See, for example,
www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201612-504-charter-school.pdf   

  • Online/virtual schools

Revised regulations should explicitly identify that Section 504 applies to a public online school operated statewide by a public school district via contract with a private entity. (See Quillayute Valley (WA) School District, 49 IDELR 293 (OCR 11/26/07); see also Elkhart (KS) Unified School District 218, 51 IDELR 51 (OCR 3/26/08) Online school operated by school district and available to students across the country required to inform students of the procedures to request accommodations and should be able to provide, at a minimum, modifications to the regular education program including test taking and assignment deadlines).

  • Non-public schools

Further to the above, there is wide spread misunderstanding that private schools are exempt from Section 504. To address this, revised regulations should make clear that non-public schools, such as private schools including religious schools, that accept ANY form of federal financial assistance are required to adhere to Section 504. Federal financial assistance includes such funds as free and reduced lunch program, any funding program under the ESEA (Title I, etc.), IDEA grants. Providing a non-exhaustive list would help further understanding of this provision.

  • Juvenile Justice facilities

Revised regulations should explicitly identify that all juvenile justice residential facilities and any other entities that receive Federal funds–either directly or indirectly through another State or local agency–and that provide educational services in such facilities are subject to Federal civil rights laws including Section 504. See
www2.ed.gov/about/offices/list/ocr/letters/colleague-residential-facilities-201412.pdf

  • Before and after-school programs & summer programs

Revised regulations should include specific language indicating that before and after-school and summer programs operated by, and/or functioning on the premises of, and/or advertised by a school or district as the school or district’s before and after-school or summer program, are bound by Section 504 even if they are run by a non-district entity and even if that entity itself does not receive federal financial dollars. The regulations must specify that districts may not provide significant assistance to outside entities such as before and after-school programs and summer programs if those entities discrimination, even if that outside entity is not covered under Section 504.

§104.32 Location and notification

  • Child Find

This is a critical area for regulatory strengthening. Data from the Civil Rights Data Collection (CRDC) indicate a serious lack of compliance with §104.32. Disability advocates have attempted to highlight the evidence of serious violations as indicated by the CRDC. See https://c-c-d.org/fichiers/CCD-Education-TaskForce-Letter-on-504-Recs-12_18.pdf, www.civilrightsproject.ucla.edu/news/press-releases/2021-press-releases/national-analysis-details-troubling-levels-of-pre-existing-education-inequities-for-students-with-disabilities.

The current regulatory language is too cursory to provide sufficient information to families, students, schools and districts of the requirements for identification/child find under Section 504: “A recipient that operates a public elementary or secondary education program or activity shall annually: (a) Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient’s duty under this subpart.” In addition, this language could be interpreted to mean that a school or district only has to identify and locate potentially eligible students, or notify students with disabilities and their parents of their duty to do so, only once a year. To address this problem, the regulations must contain stronger language regarding the obligation of districts and schools to identify all potentially eligible children. Information about Section 504 and how to ask for 504 services must be shared in multiple ways with parents and on an ongoing basis. All staff must be aware of their obligations to identify all potentially eligible students. Section 300.111 of the Individuals with Disabilities Education Act (IDEA) regulations provide some guidance for this language: “The State must have in effect policies and procedures to ensure that – all children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State…regardless of the severity of their disability…are identified, located, and evaluated; and a practice method is developed and implemented to determine which children are currently receiving needed special education and related services…Child find also must include – children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade; and highly mobile children, including migrant children.” Note: Since the obligation for child find under Section 504 rests with the school/district, “State” in the above example should be replaced with “school and LEA.”

§104.33 Free appropriate public education

Across the nation, there is a major misunderstanding among schools and districts that only accommodations can be provided under Section 504. This is in direct conflict with the current regulatory language at
§104.33 (b).

Therefore, revised regulations must provide explicit language that both regular and special education services and related services as well as accommodations and nonacademic and extracurricular activities available to students with disabilities are available under Section 504 and at no cost to families except to the extent that there are fees that are imposed on all students and families including those without disabilities.

  • Compensatory Services Under Section 504

OCR should make clear in revised regulations that compensatory services can be awarded under Section 504. Seehttps://www2.ed.gov/about/offices/list/ocr/docs/fape-in-covid-19.pdf

§104.34 Educational setting

  • Online/Remote/Virtual Instruction

Revised regulations should include specific language that Section 504 should not prevent any school from offering educational programs through distance instruction. See

www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf

§104.35 Evaluation and placement

  • Parent Consent for initial evaluation

OCR’s interpretation that Section 504 requires informed parental consent for the initial evaluation must be included in revised regulations. In addition, revised regulations should require such parental consent to be in writing, as well as any district notification regarding evaluation.

  • Requirements for evaluations

Revised regulations should include detailed information on (a) the need for qualified evaluators to do the evaluations, (b) the requirement for a timely evaluation (with a reasonable timeframe), (c) the right of parents to be part of the team that determines whether an evaluation will be conducted and if so, what it will entail, (d) the need to ensure that evaluations use tools and are conducted in ways that do not result in inappropriate identification or disproportionality, (e) that all evaluations must be conducted at no cost to the families and that families cannot be required to fund/produce their own evaluations, and (f) that any information, evaluations, etc. that parents bring to the Section 504 meeting must be reviewed and considered as part of the evaluation.

OCR guidance indicates that, if a child is not eligible under IDEA, the school/district must consider potential eligibility under Section 504. This should be explicitly included in revised regulations, as should OCR guidance that a district may not simply refuse to evaluate a child.

Revised regulations should also make clear that schools/districts should consider providing 504 eligibility for students with health conditions rather than providing such students with “health plans” which do not provide the same level of protection and procedural safeguards.

Independent Educational Evaluation

Revised regulations should address the right to an independent educational evaluation at public expense including frequency, etc.

Non-Discrimination/Access Issues

  • Access to Accelerated Programs

Students with disabilities are routinely denied the opportunity to participate in accelerated programs such as Advanced Placement and International Baccalaureate classes or programs. OCR’s 2007 Dear Colleague Letter indicates that the practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates Section 504. Revised regulations must explicitly address this. (See
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20071226.pdf)  

  • Access to Electronic Book Readers

Revised regulations should explicitly include language about the need to provide access to assistive technology including electronic book readers among other AT devices and tools in the regulations. See
https://www2.ed.gov/about/offices/list/ocr/docs/dcl-ebook-faq-201105.html

  • Access to Extracurricular Athletics

OCR’s interpretation of Section 504 that students with disabilities must have an equal opportunity for participation in nonacademic and extracurricular services and activities should be explicitly included in revised regulations. See
https://www2.ed.gov/about/offices/list/ocr/docs/dcl-factsheet-201301-504.html

  • Access to an education during public health emergencies

School officials have an obligation to avoid discrimination on the basis of disability under Title II and Section 504, while cooperating with public health authorities to ensure that students with disabilities have access to the school’s education program. This should be addressed in revised regulations. See www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf

  • Bullying & Harassment

OCR should explicitly indicate in revised regulations that bullying of a student on the basis of his or her disability may result in a disability-based harassment violation under Section 504. See www2.ed.gov/about/offices/list/ocr/letters/colleague-bullying-201410.pdf

  • Discipline protections: Manifestation determination, functional behavioral assessment, positive behavior support, limitations on exclusions (consecutive or a series of short-term)

Revised regulations should clarify requirements to conduct manifestation determination reviews and also to identify exclusion from school for more than 10 consecutive school days or for a series of short-term removals if the total days are more than 10 school days and there is a “pattern” of exclusion. OCR considers an exclusion from the educational program (for example, an out-of-school suspension) of more than 10 consecutive school days to be a significant change in placement. OCR also considers a series of short-term exclusions (each 10 school days or fewer) from the educational program to be a significant change in placement, if the short-term exclusions total more than 10 school days and create a pattern of removal.  (See Parent and Educator Guide to Section 504: https://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf) Revised regulations should explicitly address this.

Note: In Springfield School District #186, 55 IDELR 206 (OCR June 29, 2010), the Office for Civil Rights determined that a school district violated Section 504 when it expelled a student with a 504 Plan without conducting a manifestation determination.

OCR should specifically address the use of restraint and seclusion by school districts as behavior/actions that may result in discrimination against students with disabilities, thereby violating Section 504. In many states, the only students who are allowed to be restrained or secluded are students with disabilities, which on its face should be discrimination and a violation of Section 504. See

OCR should include in revised regulations language indicating that all Section 504 plans and all communication related to Section 504 plans, such as notice of 504 meetings, must be in writing. Currently, OCR has indicated its position that schools may incorporate a 504 plan into a written document but are not required to do so. (See Parent Educator Resource Guide,

www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf.)

This approach makes it virtually impossible for families to participate effectively in the process, or even to know what is contained in the 504 plan and how to ensure that the necessary services are implemented. It is also unrealistic to expect teachers and other school staff to be able to implement a plan that is not in writing.

Since current regulations state that implementation of an IEP is one means of meeting the FAPE standard (104.339b)(2)) revised regulations should, at a minimum, require that the provision of FAPE require a written plan.

OCR should also include in revised regulations the requirement for parent participation in the development, updating, and/or revision to the 504 plan, and a requirement for at least annual review and revision, as necessary, of the 504 plan. Currently, OCR “urges” schools to allow for parental participation when considering any change in the student’s Section 504 provision of FAPE, including location of services, but does not require it. This minimizes the critical role of parents in the decision-making process and makes it less likely that the decisions that are made, including the contents of the 504 plan, will be appropriate and meet the needs of the student with a disability. Additionally, revised regulations should require the participation of the student with a disability starting no later than transition age and certainly when the student becomes an adult.

  • Transition – Legal Rights and Responsibilities of Students with Disabilities as They Transition from High School to Institutions of Postsecondary Education

OCR is encouraged to incorporate requirements regarding the critical transition from school to adult life in revised 504 regulations, including a requirement for schools to coordinate and collaborate with state and local adult service providers/systems and assisting students to connect with those adult services providers/systems. This will help avoid the current situation where students with disabilities who are not covered under IDEA are not aware of their potential eligibility for Section 504 protections in post-secondary education or the availability of adult services from agencies such as vocational rehabilitation. See https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20070316.pdf
https://www2.ed.gov/about/offices/list/ocr/letters/parent-20070316.pdf

§104.36 Procedural safeguards

  • Impartial hearing/complaints

Revised regulations should make clear that 504 eligible students maintain their current placement during the pendency of any impartial hearings requested by the parents (i.e., stay-put).

  • Burden of proof

Revised regulations should include language indicating that the burden of proof to demonstrate compliance with the requirements of Section 504 is on the school/district and not the parent, as the school/district is the entity that has access to all the documents needed to show compliance, and further, the district commits to complying with Section 504 as part of its receipt of Federal funds.

  • Parent participation in decision-making

Revised regulations should significantly strengthen the procedural safeguards, including requiring informed, written parental consent for evaluations and at least the initial 504 plan; written notification of parental rights including the right to participate in all meetings related to Section 504 eligibility, evaluation and identification, and plan development and revision.

34 CFR Part 104 Subpart E Postsecondary Education

§ 104.42 Admissions and recruitment

Require institutions to give “considerable weight” to documentation of both disability and the auxiliary aids and services previously provided (such as an IEP, 504 Plan, and/or Summary of Performance), and expand to non-examination contexts such as course, eligibility, and school services.

34 CFR Part 104 Subpart C Accessibility

  • Building Accessibility (§104.23)

The regulations must be amended to clarify that building accessibility must meet the ADA accessibility requirements, keeping in mind the post-1977 construction standards that buildings must, to the maximum extent feasible, be readily accessible to and usable by persons with disabilities including not only students but also families and staff.

UP AHEAD: Six Years of Low Expectations for Students with Disabilities

Wednesday, April 27th, 2022

Over the past few months states have been busy formulating new annual targets for their state performance plans (SPP) for FFY 2020-2025. The new 6 year targets were to be submitted to the Office of Special Education Programs (OSEP) at the U.S. Dept. of Education along with states’ SPP Annual Performance Report (APR) on February 1, 2022.

These new targets were to be developed with stakeholder involvement, as this OSEP memo points out. SPP targets are used to annually review states’ performance on the implementation of the Individuals with Disabilities Education Act (IDEA). And, in turn, states use the targets to evaluate IDEA implementation of local school districts. The SPP/APR submissions are currently under review at OSEP – including the new targets for FFY 2020-2025.

Here’s the problem …

Based on information shared with stakeholders in several states (see AR, CO, FL, KY, MD, SD) the data being used to set 6 years of expectations on the participation and performance of students with disabilities on state assessments (known as SPP Indicator 3) are data from the state assessments conducted in the 2020-2021 school year.

This is a BIG problem since the participation and performance of students with disabilities in 2020-2021 was heavily impacted by continued school closures, remote instruction, high absenteeism as well as lack of implementation of students’ Individualized Education Programs (IEPs) and a shortage of qualified special education and related services personnel.

So … using data from 2020-2021 to set targets on participation and performance for the next 6 years ensures low expectations. Essentially, the learning loss of students with disabilities will be baked into performance targets for 6 years!

As the U.S. Dept. of Education’s Office for Civil Rights reported in Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students, “[f]or many elementary and secondary school students with disabilities, COVID-19 has significantly disrupted the education and related aids and services needed to support their academic progress and prevent regression. And there are signs that those disruptions may be exacerbating longstanding disability-based disparities in academic achievement.”

Now, setting 6 years of annual targets for performance on state assessments in math and reading based on 2020-2021 results will exacerbate the disparate impact of COVID-19.

According to this article from the Region 15 Comprehensive Center (funded by the U.S. Dept. of Ed):

“While 2021 assessment data can still be a helpful barometer of how well educators and schools supported students’ grade-level learning, it is not appropriate to use these data alone to make inferences about student success or school quality, particularly if such inferences are attached to significant decisions or consequences. To avoid drawing incorrect conclusions from assessment data about student success or school quality, policymakers and education leaders should consider lowering or removing any high stakes attached to 2021 assessment results.”

This Education Week article on results of 2021 testing points out “even though educators are hungry for insight, assessment experts are urging caution. This year, more than any in recent memory, calls for extreme care and restraint when analyzing statewide test scores, drawing conclusions, and taking action, they say.”

And, as this NCIEA article points out, efforts should be made to “minimize the long-term influence of ‘fragile indicators’ such as proficiency rates when forced to use the imperfect assessment data from 2020-2021.”

Allowing states to set SPP targets using 2020-2021 state assessment data is sure to maximize the impact of COVID-19 on students with disabilities for years to come. Buckle up.

Comment on Your State’s Application for IDEA Part B Federal Funds for FFY 2022

Friday, March 25th, 2022

States are required to submit an annual application for Federal funds to the U.S. Dept. of Education (ED) in order to be eligible to receive their IDEA Part B Federal funds.

States must make their FFY 2022 IDEA Part B applications for Federal funds available to the public at least 60 days prior to submission to ED’s Office of Special Education Programs (due by May 27, 2022 ), accept public comment for at least 30 days, review and consider all public comments and make any necessary modifications to the application or policies and procedures, as appropriate. This means applications should be posted to SEA websites by March 28, 2022.

Through these applications, states must make a number of “assurances” regarding compliance with IDEA including assuring FAPE is available to all identified students, services are provided in the least restrictive environment (LRE) to the maximum extent practicable, identifying significant disproportionality and many more! States must also provide information on their maintenance of state financial support. 

Direct links to states’ applications are provided below.

More information about the annual application is available in the following documents:

STATE APPLICATIONS FOR REVIEW AND COMMENT:

AL: https://www.alabamaachieves.org/wp-content/uploads/2022/03/SPECED_2022321_Proposed-AL-FY2023-IDEA-Part-B-Grant-Application_V1.0.pdf

AK: https://education.alaska.gov/sped

AR: https://dese.ade.arkansas.gov/Offices/special-education/policy-regulations/state-part-b-application

AZ: https://www.azed.gov/specialeducation/public-notice-info-public-notice-comment-and-hearing-period-ffy-2022-idea-part-b

CA: https://www.cde.ca.gov/sp/se/as/fndapp22.asp

CO: https://www.cde.state.co.us/cdesped

CT:  http://ct.mypublicnotices.com/PublicNotice.asp?Page=PublicNotice&AdId=5282271

DC: https://osse.dc.gov/release/ffy-22-draft-state-grant-application-under-part-b-idea-open-public-comment

DE: https://www.doe.k12.de.us/Page/2383

FL: http://www.fldoe.org/academics/exceptional-student-edu/

GA: https://www.gadoe.org/External-Affairs-and-Policy/communications/Pages/PressReleaseDetails.aspx?PressView=default&pid=938

HI: https://www.hawaiipublicschools.org/TeachingAndLearning/SpecializedPrograms/SpecialEducation/Pages/home.aspx

IA: https://educateiowa.gov/pk-12/special-education/special-education-public-reporting#IDEA_Part_B_and_Part_C_Annual_State_Applications

ID: https://www.sde.idaho.gov/sped/

IL: https://www.isbe.net/Pages/IDEA-Part-B-Annual-State-Application.aspx

IN: https://www.in.gov/doe/students/special-education/

KS: https://www.ksde.org/Agency/Division-of-Learning-Services/Special-Education-and-Title-Services/Announcements-Special-Education-and-Title-Services

KY: https://education.ky.gov/specialed/excep/IDEA/Pages/Kentucky-IDEA-State-Application.aspx

LA: https://www.louisianabelieves.com/students-with-disabilities/special-education-funding

MA: https://www.doe.mass.edu/sped/osep/idea-partb.html

ME: https://www.maine.gov/doe/doe/learning/specialed/fiscal/ideapublic

MD: https://www.marylandpublicschools.org/programs/Pages/Special-Education/IDEA.aspx

MI: https://www.michigan.gov/mde/0,4615,7-140-6598-521556–,00.html

MN: https://education.mn.gov/MDE/dse/sped/fed/index.htm

MO: https://dese.mo.gov/special-education/news-and-updates

MS: https://www.mdek12.org/OSE/IP

MT: https://opi.mt.gov/Educators/School-Climate-Student-Wellness/Special-Education/IDEA-Fiscal

NC: https://ec.ncpublicschools.gov/

ND: https://www.nd.gov/dpi/education-programs/special-education (under Compliance Data and Reports)

NE: https://www.education.ne.gov/sped/

NH: https://www.education.nh.gov/who-we-are/division-of-learner-support/bureau-of-student-support/special-education/forms-guidance-documents-handbooks-reports

NJ: https://www.nj.gov/education/specialed/idea/partb/

NM: https://webnew.ped.state.nm.us/bureaus/special-education/public-notices-state-performance/

NV: https://doe.nv.gov/Inclusive_Education/

NY: http://www.nysed.gov/special-education/annual-state-application-under-part-b-individuals-disabilities-education-act-idea

OH: http://education.ohio.gov/Topics/Special-Education/Special-Education-Data-and-Funding/Special-Education-Part-B-Allocations

OK: https://sde.ok.gov/special-education

OR: https://www.oregon.gov/ode/rules-and-policies/Pages/IDEA-Part-B.aspx

PA: https://www.education.pa.gov/K-12/Special%20Education/IDEA/Pages/default.aspx

RI: https://www.ride.ri.gov/StudentsFamilies/SpecialEducation/SpecialEducationRegulations.aspx#32091104-annual-state-application-under-part-b-of-the-idea-2004-for-federal-fy2021

SC: https://ed.sc.gov/districts-schools/special-education-services/fiscal-and-grants-management-fgm/

SD:  https://doe.sd.gov/sped/ 

TX: https://tea.texas.gov/academics/special-student-populations/special-education/programs-and-services/annual-state-application-under-idea-part-b-and-idea-eligibility-documentation

UT: https://www.schools.utah.gov/specialeducation

VA: https://www.doe.virginia.gov/special_ed/grants_funding/idea_part-b/va_application_idea_part-b.shtml

VT: https://education.vermont.gov/student-support/vermont-special-education/recent-guidance-news-and-events

WA: https://www.k12.wa.us/student-success/special-education/laws-and-procedures/rulemaking-and-public-comment

WV: https://wvde.us/special-education/finance/annual-state-idea-funding-application/

WY: https://edu.wyoming.gov/downloads/communications/memos/2022/2022-031-Public-Comment-2022-23-Application-for-Part-B-Federal-Special-Education-Funds-PDF.pdf