Archive for the 'Our Kids Count' Category

2015 NAEP Shows Little Change for Students with Disabilities

Thursday, October 29th, 2015

Results of the 2015 National Assessment of Educational Progress (NAEP) in Reading and Mathematics were released October 28, 2015. Details are available here.

As in recent years, the 2015 performance of students with disabilities showed 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. The majority of students with disabilities performed in the “below basic” achievement level in all areas except 4th grade Math. See table below.

NAEP 2015 Achievement levels SD vs. No SD

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. (Details on exclusion rates by state on each NAEP assessment are available here.)

NAEP participation was also addressed by the US ED Office of Special Education Programs in 2014 when it began including NAEP participation and performance in the determination for each State under section 616(d) of the Individuals with Disabilities Education Act (IDEA).

The table below shows the rates of exclusion in NAEP administrations from 2003-2015.

NAEP exclusion rates for students with disabilities

In fact, the significant improvement in testing students with disabilities was noted by U.S. Education Secretary Arne Duncan as possibly causing overall declines in Maryland, as reported in the Baltimore Sun “U.S. Secretary of Education Arne Duncan noted to Maryland and Baltimore’s large declines, but said the drops were “good news” because they reflected the state’s efforts to be more inclusive of certain populations — such as students with disabilities and English Language Learners.” 

Below are achievement levels for students with disabilities and students without disabilities in each NAEP area from 2003 through 2015.


NAEP Reading Grade 4 achievement levels for students with disabilities 2003-2015


NAEP Reading Grade 8 achievement levels students with disabilities 2003-2015


NAEP Math Grade 4 achievement levels students with disabilities 2003-2015


NAEP Math Grade 8 achievement levels students with disabilities 2003-2015


See also: Our reports on 2015 TUDA and 2013 NAEP results.

New ACGR Data Show Graduation Gaps Persist

Wednesday, October 21st, 2015

On October 19, 2015, the U.S. Dept. of Education (ED) released preliminary graduation rates reported by states for the 2013-14 school year.

According to ED “The vast majority of states – 36 – saw increases in overall graduation rates, while 6 states saw decreases and another 8 saw no change since 2012-13. The majority of states also shrank the achievement gap for black and Hispanic students, as well as students with disabilities, English language learners and low-income students”

ED reported that 21 states showed a decline in the graduation rate gap between all students and students with disabilities, 17 states had increases in the gap and 12 states showed no change.

Our analysis (below) found 21 states and D.C. decreased, 15 increased and 14 had no change (the difference could be caused by rounding). Two states are outliers  – Alabama (19 point gap increase) and Oregon (gap decrease of 11 points).

Most states had negligible changes (a decrease or increase of just 1-2 points) which could be characterized as statistically insignificant.

Without a doubt, the bigger issue continues to be the huge gaps between students with disabilities and all students earning a regular high school diploma in four years.

Four Year Adjusted Cohort Graduation Rate
Gaps between All Students and Students with Disabilities
SY 2012-13 and SY 2013-14

Download ACGR Comparison Chart .

See also: Study Finds Wide Variation in Graduation Rates for Students with Disabilities; Little Relationship with Graduation Policies

California Kids with Disabilities Fare Poorly on New Assessments

Saturday, September 12th, 2015

Results are out for the first full administration of the Smarter Balanced (SBAC) tests administered to California students in grades 3-8 and grade 11.

California is important because the state educates 11 percent of the nation’s students with disabilities ages 6-21 (622,602 of 5,847,624). It’s also important because the state has been firmly committed to the Common Core State Standards (CCSS) and the Smarter Balanced Assessment Consortia for several years, putting lots of money into transitioning to the CCSS. In previous years California administered a modified alternate assessment to a large number of students with disabilities.

Of the 3.2 million students tested in 2015, 313,076 were students with disabilities or 9.6 percent.

In English Language Arts 48 percent of students without disabilities met or exceeded the standard compared to 12 percent of students with disabilities. Seventy-eight percent of students with disabilities did not meet or nearly met the standard compared to 52 percent.

In Math 36 percent of students without disabilities met or exceeded the standard compared to 9 percent of students with disabilities. Ninety-one percent of students with disabilities did not meet or nearly met the standard compared to 63 percent.

These gaps are more troubling when examined at each achievement level. The vast majority of students with disabilities performed at the “Standard Not Met” level – 70 percent in English Language Arts and 75 percent in Math.

Achievement by grade level for each group of students is shown below.

Students with No Disability – English Language Arts

Students with Disabilities – English Language Arts

Students with No Disability – Math

Students with Disabilities – Math

Complete statewide results can be downloaded here (PDF). Results can also be accessed by county, district, or school from the California 2015 Test Results page.

A New ESEA? Senate/House Bills Offer Little to Like for Students with Disabilities

Tuesday, August 11th, 2015

With passage of bills to reauthorize the ESEA in both the U.S. Senate and the House of Representatives (details here) the likelihood of getting an update to current law – known as No Child Left Behind (NCLB) – seems probable for the first time since NCLB “expired” in 2007. While few supporters stand behind all the original tenets of NCLB, some of its requirements helped improve education for students with disabilities.

However, few states are still operating under NCLB rules, most having obtained ESEA Flexibility from the U.S. Dept. of Education starting back in 2012. The new accountability plans states were allowed to develop under their ESEA Flexibility (to replace Adequate Yearly Progress or AYP) raised many questions about just how students with disabilities would be impacted,  as we laid out in our 2013 report, ESEA Flexibility: Issues for Students with Disabilities.

Now Congress is moving toward a new ESEA that will completely eliminate many of the provisions of current law (maintained in ESEA Flexibility) that have worked to gain needed attention to the specialized services and supports necessary for students with disabilities to benefit. A few are recapped below.

INTERVENING IN LOW PERFORMING SCHOOLS. The overarching issue – for all historically under-performing groups of students including students with disabilities – is the lack of any requirement for states to take action in poor performing Title 1 schools in either the Senate or House ESEA bills. This concern has been best articulated by the Leadership Conference & 41 organizations in their letter to Senate HELP Committee leadership. The Education Trust also stands firmly opposed to this abandonment of accountability and encourages action via its All Kids Matter campaign. Intervention should be required in low performing schools and schools with significant gaps in the performance of student groups/categories.

MAKING STUDENT GROUPS COUNT. A major driver in the identification of low performing schools is the issue of “n” size. Schools and districts are held accountable only for the student groups that meet or exceed this minimum number of students.

For example, if a state established an “n” of 35, a school with only 20 students with disabilities in the tested grades would not be held accountable for this group of students. Under current law and both the Senate and House bills, states will continue to determine the minimum number of students necessary to hold schools and districts accountable for the performance of each student group (called “categories” in the Senate bill) directed only by a requirement for it to be statistically significant and not disclose personally identifiable information. This latitude in determining “n” size resulted in significant numbers of students with disabilities being left out of accountability systems. A 2013 report, The Inclusion of Students with Disabilities in School Accountability Systems, found that as many as 85% of students with disabilities in one state (AZ) were excluded from accountability systems due to “n” size.

One glimmer of hope in getting states to be more responsible in setting “n” size is contained in the Senate bill (Title I, Sec. 1016). It requires the U.S. Dept. of Education to publish a report on “best practices for determining valid, reliable, and statistically significant minimum numbers of students for each of the categories of students for the purposes of inclusion as categories of students in an accountability system.” (The National Center for Education Statistics recommends an ‘n’ size of 10) Presumably states would look to this report to determine “n” sizes going forward. However, there is nothing binding about this and furthermore, it is not specified in either bill that the “n” size must be the same for all student groups/categories (as is the case in current law).

MAKING TEST PARTICIPATION MATTER. Three important issues here:

(1) While both the Senate and House bills include a requirement that schools and districts test a minimum of 95% of all students and a minimum of 95% of each student group/categories, neither bill puts the same emphasis on this requirement as does current law (failing to reach the 95% testing threshold was automatic failure of the school regardless of academic achievement). The veracity of this provision was also relaxed in some of the accountability plans approved under the ESEA Flexibility program (discussed in our report, ESEA Flexibility: Issues for Students with Disabilities).  Simply maintaining the requirement while not assigning any weight to it within the accountability system is likely to result in diminished attention to ensuring the testing of all students. (More about this from our friends over at Third Way.)

(2) Another threat to this provision is found in the House bill which provides that students who are “opted out” of testing – in states that allow such parental action – will not be counted against the school or district for purposes of the participation rate requirement. (More on state opt-out policies here.)

(3) While neither Senate nor House bills speak specifically to this, current NCLB regulations require that students with disabilities are assessed on the assessment for their enrolled grade level. This requirement helped to eliminate the practice of “out-of-level testing” (OOLT) of students with disabilities and resulted in schools and parents getting information on how students with disabilities perform vs. their same age/grade non-disabled peers. It will be important to maintain the prohibition on OOLT in any ESEA re-write.

ALTERNATE ASSESSMENTS. About the only issue that is specific only to students with disabilities is that of participation in alternate assessments. Both bills allow states to develop and administer alternate assessment on alternate academic achievement standards (AA-AAS) for students with the most significant cognitive disabilities. However, the bills vary significantly:

  • Limitation. Senate bill limits the number of students with disabilities who can be assessed using an AA-AAS to one percent of all students assessed – which equates to roughly 9%-10% of students with disabilities. This provision is similar to a NCLB federal regulation and is designed to ensure that students with disabilities are not inappropriately assigned to an alternate assessment. The House bill contains no such limitation and would open the door for abuse of alternate assessment.
  • Prohibition. The Senate bill also contains a prohibition on any state developing any other alternate assessment for students with disabilities. Maintaining this provision in any ESEA re-write is critical to ensuring that students with disabilities – other than those with the most significant cognitive disabilities – participate in states’ general assessment at their enrolled grade.

GRADUATION. Attention to the graduation rate of all students, including students with disabilities, was significantly enhanced via the promulgation of federal ESEA regulations in 2008. The new regulations ensured that graduation received enhanced focus, particularly in those high schools failing to graduate at least 60% of students in four years (called drop-out factories) by disaggregating graduation rates by student subgroups, setting annual graduation rate targets and linking those targets to Adequate Yearly Progress (AYP). Most of these advancements are lost in both the Senate and House ESEA bills. While both bills maintain the requirement to report graduation rates using the 4 Year Adjusted Cohort Graduation Rate (ACGR) for all students and student subgroups, neither incorporates serious consequences for failing to achieve annual targets or make significant improvements. More from AEE.

BOTTOM LINE: In their current form, neither the Senate nor House bill to reauthorize ESEA is good enough for students with disabilities. With these as starting points for conference, we can anticipate only an unacceptable produce to emerge.



USED announces 2015 state determinations on IDEA Implementation

Friday, July 3rd, 2015

July 3, 2015

The US Dept. of Education has released its 2015 determinations of how states are implementing the IDEA. In 2014 the Department added a new procedure in making these determinations – known as a Results Matrix. The Results Matrix and the existing Compliance Matrix now make up what is called the “Results Driven Accountability Matrix (RDA).” The Department has made a few very significant changes to the Results Matrix in 2015. These include:

  • In 2014 states were evaluated on the performance gap between students with disabilities and all students on state assessments in reading and math. These elements have been ELIMINATED in 2015. Proficiency on state assessments is no longer part of the results matrix.
  • In 2015 the Department ADDED two new elements:
    • the percentage of students with disabilities exiting school by graduating with a regular diploma (this is a different calculation than the 4-year adjusted cohort graduation rate (ACGR) that states report each year under NCLB rules)
    • the percentage of students with disabilities exiting school by dropping out.

The Department has not yet posted details of each state’s determination. These should be available here in the coming days. (We reported details of the 2014 Results Matrix here.)

Meanwhile, here is a list of each State’s performance in meeting the requirements of IDEA Part B, which serves students with disabilities, ages 3 through 21 (also available here):

Connecticut, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Pennsylvania, Republic of Palau, Republic of the Marshall Islands, Rhode Island, Vermont, Virginia, Wisconsin, Wyoming

Delaware, Federated States of Micronesia, Georgia, Ohio, Virgin Islands

NEEDS ASSISTANCE (two or more consecutive years)
Alabama, Alaska, American Samoa, Arkansas, Arizona, California, Colorado, Commonwealth of the Northern Mariana Islands, Florida, Guam, Hawaii, Idaho, Illinois, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Puerto Rico, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia

NEEDS INTERVENTION (two consecutive years)

NEEDS INTERVENTION (four consecutive years)
Bureau of Indian Education

NEEDS INTERVENTION (nine consecutive years)
District of Columbia

IDEA identifies specific technical assistance or enforcement actions that the Department must take under specific circumstances for States that are not determined to “meet requirements.” If a State “needs assistance” for two consecutive years, the Department must take one or more enforcement actions, including, among others, requiring the State to access technical assistance, designating the State as a high-risk grantee, or directing the use of State set-aside funds to the area(s) where the State needs assistance. If a State “needs intervention” for three consecutive years, the Department must take one or more enforcement actions, including among others, requiring a corrective action plan or compliance agreement, or withholding further payments to the State.

Details on how the Department made the 2015 determinations are available here:

The 2014 determinations are available here:

Smarter Balanced Field Test Results Show Major Gaps for Students with Disabilities

Thursday, January 1st, 2015

Smarter Balanced Assessment Consortium
Disaggregated 2014 Field Test Data

The Smarter Balanced Assessment Consortium (SBAC) released results of its 2014 field testing on December 22, 2014. Results included projections of student performance on the assessments based on the field test demographic sample by content area, grade level and demographic groups as defined by No Child Left Behind.

Projections of student results are valid only for the Consortium as a whole and cannot be interpreted on a state-by-state basis. SBAC states are listed here.

Below is a comparison of the percent of all students and students with Individualized Education Programs (IEPs) performing at each of the following achievement levels:

Level 4 – Highest Level  – At Gr. 11 – Ready for credit-earning college work

Level 3 – At Gr. 11 — Ready for credit-earning college work if continues to progress in Gr. 12

Level 2 – Approaching readiness

Level 1 – Lowest Level




Level 1

Level 2

Level 3

Level 4




Level 1

Level 2

Level 3

Level 4

Gr. 3






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Gr. 4






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Gr. 5






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Gr. 6






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Gr. 7






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Gr. 8






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Gr. 11






Gr. 11


























Compiled by The Advocacy Institute
Disaggregated Field Test Data (DOCX) (PDF)



Fall 2014 Education & Disability Policy Webinar Series

Monday, October 13th, 2014

Education & Disability Policy
3 Part Webinar Series

This three part webinar series addressed federal policy as it relates to disability and education.  The series was hosted by nine national organizations focused on students with disabilities, listed below.

Webinar Archives

Topic: Introduction to Education Policy ~ Understanding ESEA and IDEA

Conducted October 30, 2014
View archive  ::  Download handout

Topic: High Expectations, Assessments, and Quality of Education

Conducted November 20, 2014
View archive

Topic: Graduation ~
Considerations and Implications for Students with Disabilities

Conducted December 11, 2014
View archive
  ::  Download handout



Webinar sponsors




Listen Up, Louisiana

Thursday, May 15th, 2014

H.B. 1015 :: Right Problem, Wrong Solution



A bill working its way through the Louisiana state legislature (H.B. 1015) proposes significant changes to the manner in which the state’s 70,000 + students with disabilities will be educated.

Designed to address the exceedingly low rate that students with disabilities earn a regular high school diploma (see table below), H.B. 1015 will allow IEP teams to substitute IEP goals for any and all of the state’s graduation requirements that apply to all other students. The same applies to grade promotion.

The proposal has lots of support – from parents, from legislators, and from the state’s Developmental Disabilities Council, which is working hard for its passage. There is alot of misinformation associated with the rationale for this bill – primarily the inaccurate claim that 28 states leave graduation requirements for students with disabilities up to the IEP team. While many states allow IEP teams some level of involvement in matters related to how a student will exit school, most are restricted by state and local policies. Few are as sweeping as the policy proposed by H.B. 1015.

There’s a couple of things fundamentally wrong with the provisions in H.B. 1015, particularly those pertaining to graduation. The “alternate pathway” will lead to students with disabilities receiving a regular high school diploma with no guarantee that the document represents attainment of skills and knowledge needed for life beyond high school. Unfortunately, inappropriate use of IEP goals – and the IEP team that is charged with formulating the goals – is rampant. In fact, it found its way into discussions of federal education policy a few years back, as we detailed here. The consequences are depicted in the cartoon below, from the works of Michael Giangreco:

Reprinted with permission: Giangreco, M.F. (1998). Ants in his pants: Absurdities and realities of special education. Minnetonka, MN: Peytral Publications

The well-meaning folks in Louisiana need to go back to the drawing board for the following reasons:

  • the sweeping authority given the IEP team in H.B. 1015 is almost certain to result in a violation of the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973. Specially, their right to comparable benefits as those that confer to their non-disabled peers;
  • special education services are terminated when a student is awarded a regular diploma, thus, students in great need of services through age 21 (as allowed by state law) may be shortchanged;
  • the complete lack of involvement and oversight by the Board of Elementary and Secondary Education and the Louisiana Department of Education provides no checks and balances for the application of the “alternate pathway,” thus, a student who receives 30 minutes of speech therapy per week for articulation problems could be excused from graduation requirements just as easily as a student with significant cognitive disabilities;
  • students, parents, institutions of higher education and employers will be confronted with a regular diploma that means little if anything to life beyond school – and means something different for every student.

The poor academic performance of students with disabilities in Louisiana shouldn’t be used as a rationale for moving away from state standards, assessment results, and graduation requirements. While H.B. 1015, if implemented, might produce a bump in graduation rates, it will do little to improve academic performance. In fact, states with the highest graduation rates for students with disabilities have very tough and tight policies – states like Massachusetts and Maryland.

As articulated by Jeff Spitzer-Resnick in his recent blog post, its time to Stop Paternalizing Children with Disabilities.

As first appeared in Education Week January 28, 2014. Reprinted with permission from Editorial Projects in Education.

The writer is director of The Advocacy Institute and author of Diplomas at Risk: A Critical Look at the Graduation Rate of Students with Learning Disabilities, a 2013 report published by the National Center for Learning Disabilities. The sponsor of H.B. 1015 misrepresented the purpose and recommendations of this report in his opening statement to the House Education Committee on April 29, 2014. The National Center for Learning Disabilities has sent this letter to the members of the Louisiana House and Senate.


New York Proposes Out-of-Level Testing for Students with Disabilities

Tuesday, 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.


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


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 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

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.


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.


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

Monday, 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