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The “sleight of hand” process used by the Duncan Dept. of Education (ED) in reviewing requests for ESEA waivers continued with the approval of a waiver for the Commonwealth of Virginia on June 29, 2012. After providing limited information regarding exactly how the state would set new annual measurable objectives (aka proficiency rates in reading and math)  in its initial request, ED told Virginia to pony up more specifics if it wanted an OK. (See ED Letter Regarding Peer Review Feedback).  Specifically, the feds told the state it had significant concerns with respect to  Virginia’s lack of ambitious but achievable annual measureable objectives (AMO) that provide a meaningful incentive for schools to improve (page 2).

In response, Virginia cooked up a methodology for calculating new AMOs that it claims is based on current ESEA law, but different (huh?). It did not, however, provide a simulation of those AMOs – a picture of exactly how the methodology would play out – in its response to ED (and ED didn’t ask), leaving us waiver watchers to proclaim “Huh?” again. But not to worry. ED bought the proposal and gave Virginia’s plan its blessing. (See approval letter)

With waiver in hand, Virginia set out to calculate its new AMOs for the next 6 years, proudly announcing them to the state on July 24, 2012. (See VDOE announcement). Virginia can’t yet determine new AMOs for reading – since they’ll be based on the new reading assessments being administered this coming school year. That said, the new AMOs for math (below) paint a dismal picture for Virginia’s underachieving students – now assigned the pejorative moniker “Proficiency Gap Groups.”

(Click here to enlarge) (Note: Proficiency Gap Group 1 combines students with disabilities, ELL students, and economically disadvantaged students, with no student counting more than once even if the student belongs to more than one group)

For students with disabilities, expected proficiency rates rise from 33% to 49% and close the gap between themselves and all students by just 4 points over 6 years. If Virginia had selected another approach offered in the waivers, say, to “reduce by half the percentage of students in the all student group and in each subgroup who are not proficient within six years,” 67% of students with disabilities would be expected to be proficient in math in 2016-2017 instead of 49%. Now that’s a GAP.

Since Virginia didn’t provide these AMOs in its final waiver request, perhaps ED failed to get the full picture of just how the proposed methodology would play out. Or, maybe, they just chose to look the other way.

Yes, Virginia, you are a swing state.

Click here for Virginia AMO Fact Sheet

Click here for the Protest Virginia AMOs FACEBOOK page

Click here for statement of the Virginia State Conference NAACP

Click here for Roanoke Times article on new Virginia AMOs

Click here for Editorial in Newport News Daily Press

Click here for August 16th Eduwonk Blog by Andy Rotherham

Click here for Wrightslaw blog

The No Child Left Behind (the current version of the Elementary and Secondary Education Act or ESEA) requirement that schools, school districts and states test at least 95 percent of all students in the required grades and academic areas—and at least 95 percent of each required subgroup—finally catapulted special education students into the realm of full accountability.

Despite a requirement introduced in the Individuals with Disabilities Education Act (IDEA) in 1997 that all students with disabilities be included in all state and district wide assessments, students with disabilities were systemically excluded from state testing and/or assessed with tests designed for students in lower grades (known as “out-of-level” testing).

There can be no doubt that NCLB’s participation requirement—part of the trifecta known as “Adequate Yearly Progress” or, simply, “AYP”—finally motivated states to begin to fully include all students in state assessments, including students receiving special education services.

Under AYP, test participation was self-policing. Intended as “quality control,” the provision ensured test participation by inflicting automatic AYP failure if any student subgroup fell below the required 95% threshold. Student performance on state assessments could not trump poor participation. 

Figure 1 shows the percentages of special education students who participated in the general assessments (with or without accommodations) of several states in the 2000-2001 school year. Only one state – Kansas – performed at or above the NCLB requirement for at least 95 percent participation.

By contrast, three years later, participation rates showed a marked improvement. Figure 2 shows the participation rate for 21 states in the 2003-2004 school year (following NCLB implementation) for students receiving special education.

Why Test Participation is Important for Students with Disabilities.

First, it is essential that all kids, including students with disabilities, participate in assessments, because through assessment and public reporting, schools and school districts are held accountable not only to the State but to the students who have a right to be provided an opportunity to learn to the same standards set for all students.  No student can be denied—on the basis of disability— inclusion in their respective state accountability system without violating their civil rights under Section 504 and the ADA.

Second, allowing any students with disabilities (e.g., students with the most significant cognitive disabilities) to be excluded from testing cannot be justified and creates a slippery slope. y. Both IDEA and ESEA require alternate assessments for students with disabilities who cannot participate in general state or district assessments with accommodations.

Third, both schools and parents need to know how students with disabilities are performing on a state’s academic standards for the student’s enrolled grade. This information is critical to planning instruction, identifying effective interventions, improving professional development and considering appropriate accommodations. It helps inform a student’s need(s) for intervention to attain proficiency in core academics such as reading and mathematics for same grade peers. Test results provide objective information to guide IEP teams in decision making and development of goals linked to standards. In many states, test participation at the middle and high school levels may also carry serious consequences such as placement in classes teaching higher order thinking earning a regular high school diploma.

Test Participation in ESEA Flexibility Requests.

ESEA Flexibility  does not waive the statutory requirement under section 1111(b)(2)(I)(ii) of the ESEA mandating  student participation in State assessments (see http://www.ed.gov/esea/flexibility)

Therefore, schools must continue to assess not less than 95 percent of all students and each student subgroup to make Adequate Yearly Progress, though the punitive sanctions for failing to make AYP may be modified.

States receiving ESEA waivers cannot treat students with disabilities differently than other students with respect to the statutory mandate to ensure the participation of all students in state and district assessments that are a key component to the state-developed accountability systems..  The civil rights of students with disabilities cannot be waived.

Based on information contained in the approved ESEA Flexibility Requests (Round 1), the following states have maintained an acceptable focus on test participation, for all students and student subgroups: Kentucky, Massachusetts, Minnesota, and Tennessee.

The following states have failed to articulate how test participation will count in their accountability systems and/or have designed systems that lessen the impact of test participation on schools and districts, compared to current law:  Colorado, Florida, Georgia, Indiana, New Jersey, New Mexico, and Oklahoma.

State specific information

*indicates states with less than adequate test participation requirements or use of test participation within the accountability system.

Colorado*

Colorado’s request indicates the state will require schools/districts to meet a 95% participation rate on the Colorado Student Assessment Program (CSAP) subject areas of reading, math, writing and science (similar to current AYP), as well as a 95% participation rate on the ACT.

Specifically, if a school/district does not meet this 95% participation rate in more than one area, its plan type or accreditation rating is lowered one level. For example, while a school’s overall percent of framework points earned may earn it an Improvement Plan, if it does not meet the participation rate requirement, it is lowered to a Priority Improvement Plan. (pg. 310)

However, according to Appendix 7 – Annotated School Performance Framework Report (High School), schools do not get any credit for test participation and the participation requirement does not apply to student subgroups (as required by current law). It states:

“Schools do not receive points for test participation. However, schools are assigned one accreditation category lower than their points indicate if they do not (1) meet at least 95% participation rate in all or all but one subject area (reading, writing, math, science and COACT), or (2) for schools serving multiple grade levels, meet at least a 95% participation rate in all or all but one subject area when individual subject rates are rolled up across grade levels AND the school makes AYP participation (in reading and math) for each grade level overall (not including disaggregated groups).“

This provision is in direct conflict with current law.

Florida*

Florida’s request indicates that its school grading system includes test participation.  “Schools cannot receive a grade of “A” if they have tested less than 95% of their students. Schools that test less than 90% of their students are not eligible to receive a school grade. If a school does not test at least 90% of the students the school will receive an “incomplete” grade status and an investigation is conducted culminating in a report to the Commissioner of Education providing the circumstances and reasons for not meeting the percent tested requirement. An “incomplete” grade is not erased until after the investigation is complete and the Commissioner makes a decision as to the consequence of not meeting the minimum participation required.” (Pg 52)

According to Florida’s school grading system (below), a school can earn a “B” if it tests at least 90% of eligible students.

This provision is in direct conflict with current law.

Georgia*

Georgia’s request states that the state’s proposed College and Career Ready Performance Index* (CCRPI) will continue to include participation as an overall factor in the statewide accountability system. “Combining the rigorous indicators within the CCRPI, the innovative way of capturing all High Needs Students, with the participation component will ensure schools and districts receive complete feedback on all student performance.” (pg. 53)

However, no details are provided regarding test participation requirements.

* The CCRPI is under development and not part of the approved waiver request.

This suggests that the state’s system may not comply with current law.

Indiana*

Indiana’s request makes no mention of participation requirements in its state accountability system.

This suggests that the state’s system may not comply with current law.

Kentucky

Kentucky’s requests states clearly that “Prior to making the AMO and being placed into a category, all schools would need to meet a 95% participation rate for all groups of students being tested, and the high schools would need to meet their individualized graduation goal.” (Pg. 56)

Every school in the state will have an AMO/AYP goal. If the school obtains the AMO goal, then the school has made Adequate Yearly Progress (AYP) if it also meets the required participation rate and the graduation goal if it is a high school. (Pg. 58)

Kentucky will calculate test participation rates for each school. The goal for test participation rate shall be at least 95% of the total population and of all groups of students. Making or missing the goal will be used in conjunction with the school’s AMO. If the school makes its AMO but misses its test participation goal, for the All Students group or any subgroup, then the school will be considered to have missed its AMO.

This is in compliance with current law.

Massachusetts

Massachusetts’ request clearly states that “A school cannot reach its CPI* goals without achieving a 95-percent participation rate. This applies to students overall and each student group.”

*Math, English-language arts (ELA), and science performance as measured by the Composite Performance Index (CPI).

This is in compliance with current law.

Minnesota

Minnesota’s request presents an accountability system that maintains the current participation requirements in current law.

2.1.17 AYP Calculation: Participation Measurement 2011 (pg. 508) reads:

Schools are required to administer a statewide assessment to all students enrolled in grades three through eight and grades 10 and 11. Schools that do not meet the 95% participation requirement are identified as Not Making AYP. The participation requirement is applied to all disaggregated groups. Enrollment is based on the number of students enrolled over the testing window as reported on MARSS. Participation is based on the number of assessment records reported where the student was present for testing.

This is in compliance with current law.

New Jersey*

New Jersey’s request makes no mention of test participation requirements, by all students or student subgroups.

According to the Request, “key metrics, such as early childhood literacy, chronic absenteeism, 8th grade reading and math proficiency, growth scores on State assessments, AP passing rates, ACT and SAT scores, and high school graduation rates will paint a full and accurate picture of school and district performance.”  (Performance Report Card)

This suggests that the state’s system may not comply with current law.

New Mexico*

New Mexico’s request makes no mention of any test participation requirement (all students or student subgroups) as part of accountability system. (See DETERMINATION OF A SCHOOL’S GRADE at page 316.)

This suggests that the state’s system may not comply with current law.

Oklahoma*

Oklahoma’s request states that “participation is one of 30 objectives that districts and schools are required to meet. The Participation Index remains the same as the current AYP criteria.”

Each district and school site will be ranked based on the percent of AMOs that they achieve. Districts or sites that meet 0-33% of the AMOs will be designated in the Yellow Category. Those that meet 34-66% of the AMOs will be designated in the Yellow-Green Category. Those that meet 67-100% of the AMOs will be designated in the Green Category.

Therefore, test participation in Oklahoma is just one factor in an array of criteria used to rank schools and districts.

This approach does not align with current law.

Tennessee
Tennessee’s request states clearly that the state will continue to report data for students in a district or school group, with a minimum number of 10. Schools or districts must have at least a 95 percent participation rate in the required Tennessee Comprehensive Assessment Program (TCAP) accountability tests for all students and for each student subgroup. If a school does not meet this participation rate, the school will automatically fail both its achievement and gap closure measures.

This is in compliance with current law.

                                                                                                  Download this document in PDF (6 pgs.)

April 26, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Among the areas of concern identified in the comments are:

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

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

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

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

Attorneys for Parents of Students with Disabilities Support Accountability

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

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

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

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

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

##

Find the Florida Association of Special Education Attorneys on FACEBOOK.

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

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

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

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

Rather than continuing to support students with disabilities in achieving a high school diploma and pursuing employment and postsecondary education, the lack of a cap on the use of the assessment virtually encourages schools to expect less from students with disabilities. This will jeopardize their true potential to learn and achieve.  The bill allows schools to take millions of students with disabilities off track for a regular high school diploma as early as 3^rd grade when assessment decisions are made in schools.  This will relegate them to lower career and college expectations—simply because they receive special education services. 

H.R. 3989:

• allows States and school districts to officially marginalizeevery student with a disability (and their academic potential), and expect less of them by virtue of having a disability.
• INCORRECTLY promotes that most students with disabilities can’t learn or achieve when most students with disabilities are able to learn and achieve, just like all other students, when provided appropriate services and supports.
• promotes abuse and overuse of alternate assessments by allowing any student with a disability to be tested through these assessments.
• will turn back the clock on advances made in educating students with disabilities in the past 10 years:
• Most students with disabilities taking the general state assessment
• Improved results in reading and mathIncreased graduation from high school and higher college attendance rates

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

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

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

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

Read the letter here.

See also: 

ESEA Flexibility Requests: Tips for Protecting Students with Disabilities

Center on Education Policy Waiver Watch

Center for American Progress :: Analysis of Waiver Applications

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

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

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

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

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

So get involved…here’s how:

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

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

Read the Maryland and New Jersey letters for more information.

December 22, 2011

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

Dear Secretary Duncan:

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

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

More specifically, we wish to address the following:

Consultation

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

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

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

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

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

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

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

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

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

Assessments

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

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

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

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

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

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

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

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

Sincerely,

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

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