Aligning the IDEA & NCLBA NASDSE 67 th Conference

1. Aligning the IDEA & NCLBANASDSE 67th Conference Legal Implementation Issues for State Education Agencies Presenter: Art Cernosia, Esq.

2. Major Legal Issues • Monitoring/Complaints/Hearings • Assessment Accommodations/Alternate Assessments • Personnel Qualifications • State Oversight

3. NCLBA Rights • The Court held that the NCLBA does not confer “any direct benefit, entitlement or right upon individuals, such as parents and students”. Association of Community Organizations For Reform Now v. New York City Department of Education et. al. (2003)

4. IDEA FAPE Implications • SEA Monitoring • SEA Administrative Complaints • Special Education Due Process Hearings

5. Free Appropriate Public Education • FAPE means the provision of special education and related services that meet the standards of the SEA, including the requirements of this part. (34 C.F.R. 300.13(b))

6. FAPE Issues Monitoring/Complaints/Hearings • Adequate Yearly Progress/Appropriate Special Education Services • Highly Qualified Personnel • Teachers • Paraprofessionals • Scientifically Based Instruction

7. Special Education • Specially Designed Instruction “to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children” (34 C.F.R. 300.26(b)(3)(ii))

8. Highly Qualified Teachers • Special Education Teachers who provided instruction in core academic subjects must meet the highly qualified teacher requirements under the NCLBA. • Exception for those special educators who only provide consultation services. (USDOE Guidance, Sept. 12,2003)

9. Special Education Paraprofessionals • Special Education Paraprofessionals who provide instructional support in a Title 1 school must meet the NCLBA paraprofessional qualification requirements. (U.S. DOE Guidance, March 2004)

10. Assessment Accommodations • A state must develop, disseminate information on, and promote use of appropriate accommodations to increase the number of students with the most significant cognitive disabilities who are tested against grade level academic standards; and

11. Assessment Accommodations • The state must ensure that regular and special education teachers and other appropriate staff know how to administer assessments, including making appropriate use of accommodations to students with the most significant cognitive disabilities. (34 C.F.R. 200.6(a)(2)(iii)(c)and (d))

12. Alternate Assessments • States must establish and ensure implementation of clear and appropriate guidelines for IEP Teams to use in determining when a student with a significant cognitive disability needs to be assessed using alternate academic standards (34 C.F.R. 200.6(a)(iii)(A)(1))

13. Litigation • Advocates For Special Kids v. Oregon State Board of Education • Smiley v. California Department of Education • Noon v. Alaska State Board of Education

14. NCLBA State Oversight Issues • Schools In Need of Improvement • School Improvement Plans • Public School Choice/LRE • Supplemental Educational Services/IEPs

15. SEA Determination of AYP • Each SEA must review the results of academic achievement measures in reading/language arts, mathematics, student participation rates in these assessments, graduation rates and other academic indicators to determine if AYP has been met for all public schools and LEAs.

16. Schools In Need of Improvement • A state’s determination that 19 schools did not make AYP was upheld. Provision of technical assistance by the SEA is a consequence of a school’s identification as being “in need of improvement”, not a prerequisite for the designation. Reading School District v. Pennsylvania Department of Education (2004)

17. Public School Choice • For students with disabilities under the IDEA and students covered by Section 504, the public school choice option must provide a FAPE. (34 C.F.R. 200.44(j)) • A change in the location of the delivery of services, in and of itself, does not constitute a change of placement

18. Supplemental Educational Services • For students with disabilities under the IDEA and students covered by Section 504, the provisions of the agreement between the LEA and each SES provider selected by the parents must be consistent with the IEP or Section 504 services. (34 C.F.R. 200.46(b)(3)) • SES should not be in IEPs or 504 plans

19. NCLB and Students with Disabilities Policy Issues and Dilemmas? Margaret McLaughlin NASDSE Annual Meeting, October 25, 2004

20. Policy vs. Legal Issues • Legal issues refer to interpretations of existing law • Policy issues are concerned with the goals, assumptions, and strategies that are stated in law and which reflect a “theory of action”

21. What are the Implementation Issues? • Policy Implementation : can be fixed through regulation, policy guidance, R & D, and technical assistance • Interpretations of specific provisions in the law (e.g. “standard”; “alternative achievement standard”; “alternate assessments; etc.) • Technical knowledge (e.g., assessment design and impact of accommodations, etc.) • Human and system capacity (e.g., teacher quantity and knowledge and skill; sufficient time to understand and implement; organization of curriculum and instruction in schools, etc.)

22. What are the NCLB Design Issues? • Universal challenging content & achievement standards are necessary to achieve educational parity • Educational parity means closing the achievement gap between certain sub groups of students • Academic achievement can be reliably measured • Consequences are necessary to achieve action • Public accountability is essential • The school is the unit of accountability and improvement

23. Students with Disabilities & Assumptions of NCLB: Convergence • Higher levels of student achievement are necessary and possible • Every student needs to learn more challenging thinking and problem solving skills as well as basic facts and skills • Public accountability and transparency are critical to program achievement • Schools should be the focus of improvement efforts for all children

24. Students with Disabilities & Assumptions of NCLB: Divergence • Heterogeneity of the population: we are trying to make one policy that may work for most students but not for all and we don’t know where to draw the line. [1% rule, AAS, alternate assessments, etc.] • Enormous overlap of students who receive special education with other subgroups, but there is enormous variability at the margin.

25. Students with Disabilities & Assumptions of NCLB: Divergence • FAPE vs. Common Standards – can we have the same content standards for all students and the same performance expectations, e.g.," close the achievement gap” under current interpretations of FAPE? • Individually referenced standards cannot meet the goal of educational equity, but one set of standards can’t fit the population

26. Students with Disabilities & Assumptions of NCLB: Divergence • Small subgroup size and relative instability of the subgroup (as well as distribution) create a number of problems for measuring school and system progress. • Too much error in the measures so it is almost impossible to make inferences about school and district performance

27. Accountability is Working for Students with Disabilities • Transparency is important! • Focus on public accountability for increasing student achievement is a powerful tool for improving opportunities for students with disabilities • NCLB has really brought home to schools and school districts who the students with disabilities are and what they are learning • Real efforts to provide true “access to the general education curriculum”

28. Integrating IDEA and NCLB NASDSE October 25, 2004 Lawrence Gloeckler, Executive Director Special Education Institute International Center for Leadership in Education

29. Implementation Issues • Technical issues - kids in other places 2. 1% rule 3. Highly qualified teacher 4. Confusion/disagreement over the use of out-of-level testing

30. Implementation Issues • AYP 5a. Growing number of participants - growing resistance 5b. How to keep the kids in the system in a rationale way

31. In North Carolina on the multiple choice assessment, the percentage of students with disabilities who scored at grade level or above in Grade 3 Reading has increased since 2000-01. The overall rate of increase was more than that of students without disabilities. Source: NC Reports of Supplemental disaggregated State, School System (LEA) and School Performance Data for 2000-03

32. 5th Grade TAAS Texas

33. Significant gains were made in 2003. Lower percentages of students with disabilities scored at Level 1 and greater percentages scored at Levels 3 and 4. Elementary Mathematics Examination Students with Disabilities Tested 2003: 27,216 2002: 27,660 2001: 28,767 2000: 28,299 1999: 28,223 New York Public Schools-Including Charter Schools Final. OLAP 03-17-04

34. In North Carolina in 2002-03 on the multiple choice assessment, students with disabilities scored at grade level or above in Grade 10 Reading less than 1/3 as often as students without disabilities. Source: NC Reports of Supplemental disaggregated State, School System (LEA) and School Performance Data for 2002-03

36. How well do Illinois Students Read? The GAP is increasing Students w/disabilities taking tests 84.7% 2001 ISAT Percent of students who meet/exceed the standard.

37. Percent At or Above Level 3 on Grade 8 Math Thank you Larry 1999-2000 We have Major Challenges at later grades 30 Districts did not have any Students with Disabilities at this grade level in 1999-2000 583 Districts - Less than 34% 55 Districts - 34-66% 11 Districts - 67-100% New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, February 2002

38. Disability Gap Source: National Center on Educational Outcomes

39. Disability Gap Source: National Center on Educational Outcomes

40. New YorkSchools and Accountability All Schools with grades 4 and/or 8 3,312 Schools with 30 or more continuously enrolled students with disabilities held accountable under NCLB as a percentage of all schools with grades 4 and/or 8 522 (15.8%)

42. Indiana AYP Results • 197 of 292 districts identified as in need of improvement • Of 197, 188 did not make AYP for special education • Of 197, 141 had special education as sole factor in not meeting AYP • AYP failure rate is 67.5% - remove special education, it is 17.5%

43. Nevada2003-2004 AYP Summary • 210 of 567 (37.03%) Schools did not make AYP • Of the 567 schools: • 249 had IEP populations too small to conduct an ELA Achievement Analysis (43.9%) • 353 had IEP populations too small to conduct a Math Achievement Analysis (62.2%)

44. NevadaOf the 210 Schools not making AYP • 154 (73%) Failed AYP criteria with the IEP group. • 69 (32%) Failed AYP criteria with the IEP group only. • 2 (1%) Failed AYP criteria with the LEP group only. • 5 (32%) Failed AYP criteria with the IEP and LEP groups only.

45. 2003 Adequate Yearly Progress (AYP) Southwest Region – Students with Disabilities Did districts in the Southwest Region meet the percent proficient target goal (52%) in Reading Grade 10 for students with disabilities? • No districts met the percent proficient target goal for students with disabilities. • In the Region, districts’ percentages for students with disabilities ranged from 36.4% - < 5% proficient on the multiple choice assessment. • 11 districts had very few, if any, students with disabilities score at or above grade level on the NC Alternate Assessment Academic Inventory (NCAAAI)*. • In the Region, 7 districts’ percentages for students with disabilities ranged from 83.3% – 8.3% proficient on the NC Alternate Assessment Portfolio (NCAAP)* (without scores for students at North Shelby School). *Not all districts in the Region used alternate assessments for students with disabilities in Grade 10. Source: NC 2003 Adequate Yearly Progress (AYP) Report

46. Adequate Yearly Progress (AYP)Examples of District Profiles in the Southwest RegionReading Grades 3-8 – Target 68.9% EX 1. Total % Proficient 29% EX 2. Total % Proficient 42.2% Multiple Choice 29% Multiple Choice 62.2% NCAAAI < 5% NCAAAI <5% NCAAP 51.4% NCAAP 78.4% AYP Met w/SH AYP Not Met Source: NC 2003 Adequate Yearly Progress (AYP) Report

47. In Consideration of the Intentions to Leave No Child Behind What percentage of students are located in schools where their subpopulation meets the minimum n-size criteria?* *Based on Nevada 2002-2003 AYP Data.

48. Lawrence Gloeckler, Executive DirectorSpecial Education InstituteInternational Center for Leadership in Education, Inc. 1587 Route 146 Rexford, NY 12148 Phone (518) 399-2776 Fax (518) 399-7607 E-mail: larry@LeaderEd.com www.LeaderEd.com