ESEA Bills Are ‘Full Retreat From Accountability’ for Special Education

The new House Republican bills that tackle reforming the Elementary and Secondary Education Act (otherwise known as No Child Left Behind) "represent a full retreat from accountability for students with disabilities and other disadvantaged children," the National Center for Learning Disabilities said this week. (Read what other groups say about the bills here.)

Like the Senate rewrite of NCLB, the Republican bills would do away with adequate yearly progress, the crux of the law and the mechanism by which schools are held accountable for their students' performance.

That's the big problem with the bills, NCLD's executive director, James Wendorf, said.

"Even with its imperfections, NCLB has compelled schools to focus on whether students with disabilities were learning and achieving. Rather than require schools to address these issues, the bills retreat from setting performance goals for students and do not require any meaningful instructional interventions and supports for struggling students," he said.

The proposed Student Success Act would turn accountability over to the states, Mr. Wendorf said, essentially taking schools back to a time when students with disabilities weren't expected to graduate high school or attend college.

(Other proposals to reform NCLB aren't much better from the perspective of advocates for students with disabilities. See thoughts on the NCLB waivers and the Senate proposals.)

Another concern: The bill would eliminate the current cap on the so-called 1 percent rule, which restricts the use of scores on less-challenging tests given to students with severe cognitive disabilities. These tests take students off the track for a standard diploma.

"Rather than continuing to support students with disabilities in achieving a high school diploma and pursuing employment and additional education, the bill virtually encourages schools to expect less from students with disabilities. This will jeopardize their true potential to learn and achieve," Mr. Wendorf said.

The bills, the other is called the Encouraging Innovation and Effective Teachers Act, cut the federal focus on literacy, a hit for students struggling with that skill. The teachers bill would would allow federal education funds to be used for a private school vouchers, which can be risky for students with disabilities.

"Just as school accountability has begun to make the difference for students with disabilities," Mr. Wendorf said, "now is not the time to turn back the clock on our children."

Group Acts to Address Overidentification of Black Children as Disabled

A new initiative hopes to tackle one of special education's most persistent problems: the disproportionate identification of black children as having disabilities.

Now, the National Association for the Education of African American Children with Learning Disabilities will use grant money from the Oak Foundation to train parents how to better advocate for their children and address this persistent disproportionality.

How big is the problem? While African Americans make up approximately 17 percent of public school enrollment, they account for 31 percent of students identified as having mental retardation or intellectual disabilities, 28 percent of students labeled as having an emotional disturbance, and 21 percent of students who have learning disabilities. Some of these categories aren't pure medical diagnoses, calling judgment, and perhaps bias, into play.

Advocacy and special education go hand in hand. Parents who push for diagnoses and services do have a leg up over parents who rely on schools to do the heavy lifting. (I have been told by some special educators that while some white students are diagnosed with having autism based on their characteristics, sometimes, black children with identical behavior will wind up with a diagnosis of emotional or behavioral disturbance based on parents' persistence, or lack thereof.)

With the grant money, the association will create 20 African American master teachers and train more than 1,100 parents to become leaders.

"Parents need information to help their children succeed in school," said Nancy Tidwell, founder and president of the AACLD. "This project will start a movement of parents that are not solely dependent upon the school system for their children's success but will allow them to discover how to work with schools in order to achieve academic success based on learning style."

The states targeted for the first parent trainings include Alabama, Arkansas, California, Delaware, the District of Columbia, Florida, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.

‘The Single Most Important Issue Facing Special Education Today’?

Remember all the concern from last fall about how school districts were given more leeway about special education spending?

Well, special education advocates haven't let up. In December, the Advocacy Institute and the Center for Law and Education reiterated their worries to the National Disability Council.

They were reacting to a letter last June from the federal Department of Education that said if districts lower their special education spending for any reason, whether or not it's because of the exceptions built into the law, it's now permissible not to resume spending at the previously higher level.

In the past, federal law was interpreted to mean that once a district set its special education budget, it could not be reduced permanently except for very specific reasons. The so-called maintenance-of-effort provision was built into special education spending rules to buffer students with disabilities from changes in services triggered by the ups and downs of public spending and politics.

The shift, the advocates say, is a threat to the fundamental protections afforded to students with disabilities in federal law: a free, appropriate public education in the least restrictive environment. When combined with other budget issues—including the spike in federal funding for education spending because of the economic stimulus act that prompted districts to reduce their special education budgets—the budget woes "seem destined to converge to form the single most important issue facing special education today," they wrote to the National Council on Disability.

Districts, however, may have a different perspective on new special education budget flexibility.

The Advocacy Institute and Center for Law and Education want the department to rescind their interpretation of federal special education spending rules. They are hoping the Council, which advises the president and Congress, will advocate for the same thing.

GAO Says College-Entrance Exams Fall Short on Accommodations

College entrance exams such as the ACT and SAT aren't always reformatted for students with disabilities the way they should be, a recent report from the Government Accountability Office finds. The same goes for some tests that students need to get into graduate school, medical school, law school, and other programs.

Under the federal Americans with Disabilities Act, the standardized tests some colleges require have to offer accommodations, such as more time or changes in the test format, to students with disabilities.

And the federal Department of Justice hasn't done enough to address the complaints lodged by individuals about how the tests are handled for these students, the GAO report says, although it has clarified requirements for the testing accommodations mandated under the ADA.

Testing companies told the GAO that they found it difficult to balance fairness to all test takers, maintaining the reliability of their tests, and accommodating students who need adjustments. Students most often requested more time to take the tests—50 percent more time—and that was the accommodation testing companies granted most often.

Students said they weren't always granted accommodations in the way they expected or the way they were used to being accommodated at school. For example, one testing company told the GAO that if test candidates with ADD or ADHD request extra time on a test, they might instead be granted extra breaks if they are unable to sit still or a separate room if they are easily distracted. Students also said testing companies' requirements for documenting the need for an accommodation was often complicated or unreasonable.

While states and school districts have struggled for years with the same issues around test accommodations, some of those problems are expected to go away because of the new common-core tests, which will be computer-based and are expected have many accommodations built in.

In With the New; Out With (Some of) the Old

As we start a new year, I'm still reflecting on the last one. Sometimes you have to look backward to look forward, I suppose. (Cue "History Repeating.")

Looking over what I wrote about in this space over the course of the year, and what interested readers the most, I have the feeling I will be revisiting many of these subjects in 2012.

One issue I just wrote about—using response-to-intervention in identifying students with disabilities—was also the subject of another blog post earlier this year. My colleague Christina Samuels used to have this gig, and one of her last posts before she took on other duties addressed the same subject. It was the most viewed post on this blog for the year.

Also in the top 10 was this post about neuroscience research being used with students with disabilities. Look for more on this topic from me in the coming weeks.

Here are the rest of the most-read posts of the year:

3. Special Education Court Decisions on the Rise;
4. Rules Finally Issued on Infants, Toddlers With Disabilities;
5. Q&A on Co-Teaching with CEC President Marilyn Friend: Part I;
6.Shortage of Special Education Teachers Includes Their Teachers;
7. Senate Bill Would Increase Federal Support for RTI (Note: Another post about RTI.);
8. 'Serving All Kids, No Exceptions';
9. More English-language Learners, More ELLs with Disabilities?; and
10. ESEA Proposals, NCLB Waivers Trouble Special Ed. Advocates.

Looking ahead, what are you curious to read about in this space? It's obviously A-OK if it's something I've touched on in the past.

After Jail, Youth With Disabilities Need Special Support to Stay Out

When young people with disabilities end up in the juvenile justice system, they're less likely to return to youth prisons after their sentence is up if they have jobs or go to school quickly after being released, a new paper says.

However, comprehensive programs that help these youth go from prison to the outside world are scarce, says this piece from Project Forum at the National Association of State Directors of Special Education. And juveniles with disabilities have a high recidivism rate—more than the 55 percent rate for youth without disabilities.

The report looks closely at the practices in four states—Arizona, Georgia, Hawaii, and Oregon—when it comes to supporting all juveniles, including those with disabilities, who are leaving the justice system.

Some common practices the report found in states with programs intended to reduce recidivism for these young people include: a continuum of supports for youth that begins in prison and keeps going once they leave; transition facilitators or coordinators who are dedicated to working with these youth; and programs for reentering society that are comprehensive, addressing education, employment, social and behavioral skills, mental health, substance-abuse issues, housing, and transportation. Another common theme in the report? Budget problems often keep these programs from going long-term.

Here are some details of individual state's programs:

•Before youths' release, Arizona's Department of Juvenile Corrections assigns them a transition coordinator who establishes a relationship and supports them after they leave. Four of these coordinators travel the state and work with parole officers, the state director of special education, and school districts to ensure these juveniles are enrolled in the right programs at the end of their sentences. These coordinators even go to students' IEP meetings.
•Georgia's "Think Exit at Entry" program provides educational planning, progress reviews, transition facilitators, and other supports to youth in the juvenile justice system, including those with disabilities. The program has been scaled back since a federal grant expired in 2007, although some parts of it have kept going because of the partnerships already established among state agencies.
•Hawaii's Olomana School serves students in the Hawaii Youth Correctional Facility, and youth participate in regular meetings about their behavior and school work. Because the state runs all schools in Hawaii, transferring records back to schools when students are released is seamless—and transfer of records is critical to a successful reentry for students with disabilities, the report says.
•Oregon's Project STAY OUT—Strategies Teaching Adolescent Young Offenders to Use Transition Skills—is specifically for youth with an IEP, 504 plan, or mental health diagnosis. Youth work on self-determination skills, social skills, finding work, and other goals. One study found that 66 percent of STAY OUT participants were either employed or in school during the first six months after their release from juvenile justice programs, the very things that are likely to keep them from returning.

In RTI Era, is Federal Special Education Law Out of Date?

When districts first started adopting response-to-intervention, the approach quickly became the target of criticism from parents who believed school districts were trying to put off more costly special education services.

RTI, an approach that involves using an escalating set of techniques to address skills a student is struggling with, got a boost in 2004, when the federal law changed to require states to let districts use it if they chose.

The hope was that its use would help distinguish between children who truly have specific learning disabilities and students whose learning difficulties could be resolved with general education interventions. Sure enough, in the last few years, the number of students identified as having learning disabilities has dropped.

But there are still lots of questions about how RTI is used, and whether it's being used correctly, considering the federal rules about identifying students with disabilities haven't changed. The RTI Action Network recently posted this piece about whether those rules and RTI jive. It comes almost a year after the federal Department of Education warned states about not using RTI to delay or deny evaluations for special education services.

"Ultimately, the key question is how schools can both make effective use of available high-quality research-based interventions while at the same time avoiding potentially complicated child-find legal claims," writes Texas attorney Jose L. Martin, whose practice works exclusively on disabilities issues and litigation affecting public schools.

He says schools would be wise to avoid one-sided decisions on regular education interventions, including decisions on time lines for interventions and schedules for progress monitoring, and the point at which to initiate an evaluation for special education.

"Schools appear to stand in the best position to defend their actions if they are undertaken in collaboration with parents who are informed they are free to request an IDEA evaluation at any time," Mr. Martin writes.

He notes that in some court cases, districts have successfully defended their use of RTI. But in others, he writes, they lose when they use RTI—in response to parental demands for a special ed evaluation—but then don't actually provide that evaluation. (Although I suppose this can make sense to districts who aren't solely focused on whether their actions will trigger a lawsuit: RTI takes time to have an effect. What if it hasn't had time to take effect and an evaluation takes place? What if the interventions, applied outside of the special education spectrum, work?)

Even if districts document the steps they take to intervene with struggling students, even if they communicate their plans to parents and are clear about their option to request a special education referral, however, Mr. Martin wonders whether it isn't time for federal law to evolve again, this time with the perspective of years of RTI and other interventions at work in schools.

"As a broader range of struggling students' needs can be met outside of the special education system, IDEA might evolve to reflect this reality by updating its definition of special education services," he said. "Perhaps this debate will also lead to reform in child-find and referral rules, in recognition of schools' local intellectual and resources investments in high-quality intervention programs."

No Child Left Behind Waivers Leave Behind Students With Disabilities

UPDATED

What concerns the National Center for Learning Disabilities and other groups about the applications 11 states filed with the Education Department seeking waivers from the No Child Left Behind law?

What they don't say.

In a letter to federal Education Secretary Arne Duncan this week, NCLD Executive Director James Wendorf writes that the department's flexibility amounts to a trade off, with students with disabilities on the losing end of the swap.

Many groups that advocate for students with disabilities, including NCLD, heralded the No Child Left Behind law for finally holding schools accountable for these students.

But with the waivers, "important reforms such as college and career ready standards, higher quality assessments ... and a focus on sound teacher and principal evaluation systems are being driven by the department's guidelines for states seeking flexibility. Unfortunately, these reforms are being exchanged for a significant departure from accountability for achievement by all schools and for all students," he wrote.

Their concerns are reflected in a story earlier this month, in which my colleague Michele McNeil reviewed the applications and found that "a hallmark of the law—the emphasis on traditional subgroups of at-risk students, such as minority children, those with special needs, and English-language learners—would be scaled back."

In addition, NCLD took issue with the lack of detail in the applications about how states would phase out alternate exams taken by some students with disabilities, the so-called 2 percent exams. These alternate tests, which measure grade level work but are modified to have fewer questions or ask them more simply, can alter a student's ability to take certain classes or even graduate with a standard diploma, in some cases, and the administration had indicated a move away from these tests when NCLB is rewritten. However, five states that give the exams—Georgia, Indiana, Minnesota, Oklahoma and Tennessee—didn't explain how they would taper off use of these tests in their applications, Mr. Wendorf said.

The group also took issue with the applications' lack of attention to professional development for teachers and the lack of specificity about special educators in teacher and principal evaluation and support systems.

But NCLD's greatest problem was with the stark lack of accountability for student subgroups the flexibility could provide.

They cited Kentucky as an example of a state where it would be highly unlikely that the performance of students with disabilities and other groups of students—based on race, income, and so forth—would ever be looked at closely again because of the way the state wrote its application.

"NCLD remains disappointed," Mr. Wendorf wrote, "that the department has sought to trade away the focus on accountability in exchange for flexibility rather than reforming what has made the difference for students with disabilities over the past decade."

This afternoon, the Consortium for Citizens with Disabilities chimed in with other concerns about the waivers and the waiver process. Their letter, which includes about 20 endorsements including from Easter Seals and the National PTA, complains that parents didn't have nearly enough time to review states' applications before they were submitted. States gave stakeholders no more than two weeks (some gave less) to weigh in on complex applications that are in some cases hundreds of pages long.

They echoed NCLD's concerns about alternate tests based on grade-level standards, and the group worried that students with severe cognitive disabilities who take another alternate exam, based on alternate standards, would be left out of the accountability picture altogether.

The Individuals with Disabilities Education Act "requires that all students with disabilities be included in State and district-wide assessment programs," the group pointed out. "To leave students with disabilities being assessed by [the alternate assessment based on alternate standards] out of the growth component of the assessment and accountability program would be a violation of IDEA."

Senate Introduces Bill Limiting Restraints, Seclusion

UPDATED

A U.S. Senate bill filed late last week would limit physical restraint and locked seclusion of students—measures often used with students with disabilities who are considered out of control, harmful to themselves or others, or in need of being calmed.

Iowa Democratic Sen. Tom Harkin's "Keeping All Students Safe Act," is similar to a bill filed by Rep. George Miller, D-Calif., in April. The U.S. House has previously passed the bill, but it wasn't taken up by the Senate. However Rep. Miller's bill has bipartisan support. Sen. Harkin's bill has no cosponsors, at least not yet.

Among other things, the bill would: ban the use of physical restraints except in emergency situations; prohibit physical restraints that affect a student's primary means of communication; forbid putting seclusion or restraint into a student's individualized education program or IE; require states to collect data on the use of the measures, and ask schools to meet with parents and staff after a restraint is used and plan interventions that would prevent their use in the future.

"Every child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed," Sen. Harkin said in a statement. "They should never be subjected to abusive or violent disciplinary strategies or left alone and unsupervised. This bill will set long-overdue standards to protect children from physical and psychological harm and ensure a safe learning environment for teachers and students alike."

A Government Accountability Office study in 2009 about the use of the measures found some horrific scenarios. In one case a 7-year-old died after being held face down for hours by school staff. Some 5-year-olds were tied to chairs with bungee cords and duct tape by their teachers, their arms broken and their noses bloodied. A 13-year-old reportedly hung himself in a seclusion room after being confined for hours.

Earlier this year, a report called "The Cost of Waiting" chronicled additional cases of death and injury because of restraints or seclusion and was intended to nudge the Senate into action.

Sen. Harkin's office said groups supporting his bill include Easter Seals, United Cerebral Palsy, The Arc of the United States, the National Disabilities Rights Network and the Council of Parent and Attorney Advocates.

But the American Association of School Administrators has many concerns about Sen. Harkin's proposal, finding its provisions overly prescriptive, and overreaching on an issue the organization believes is best left to states to address. More than 30 states have laws about restraint and seclusion, although their provisions vary.

In addition, the group takes objection with part of the bill that says restraints and seclusion could only be used in cases where a student might commit "serious bodily injury." Because these measures are often used proactively, AASA legislative specialist Sasha Pudelski said, it can be difficult to predict exactly what kind of damage a child's actions could do. That part of the bill could open school districts up to lawsuits.

They also believe the part of the bill that requires a debriefing with parents and staff involved in an episode of restraint or seclusion is cumbersome for districts. The meetings, the bill says, must happen five days after an incident.

While the Council for Exceptional Children largely supports the bill, the bill may require too big a group at such meetings, said Lindsay Jones, the group's senior director for policy and advocacy services.

"We need to get the appropriate people at the debriefing," she said, and school's shouldn't be set up for failure by not getting everyone at the meeting the bill requires.

However her organization disagrees on the point that rules about restraints and seclusion should be left to states. They have a model policy about the measures and much of it is reflected in Sen. Harkin's bill.

"It would be good to have one consistent standard that says 'We don't use this except in an emergency'," she said. "The nation's students and educators in our schools, the staff in our schools would benefit from a consistent standard."

Some Advice for Students With Disabilities Heading to College

Last week, I wrote about the growing number of opportunities to attend college for students with intellectual disabilities. Although these programs provide a lot of independence, they also monitor students closely.

For students with other types of disabilities, navigating traditional college programs doesn't often come with the same attention to detail. And sometimes, that turns out to be a big surprise for students used to the protection provided by the Individuals with Disabilities Education Act from birth through the end of high school.

"The average high school teacher has no training—unless for some reason they've sought out the information—they don't know a lot of accommodations are not commonly given, or what the access is. They can't prepare their students," said Elizabeth Hamblet, author of a new book about the transition from high school to college for students with disabilities. The book, 7 Steps for Success: High School to College Transition Strategies for Students With Disabilities, was published by the Council for Exceptional Children.

"It's a peculiarity of the law that there is no official vehicle for colleges to communicate to high schools about what postsecondary supports and services are like," she added.

She said there are several things colleges and universities, governed by the Americans with Disabilities Act rather than IDEA, don't have to do for students with disabilities, including fundamentally altering a program to accommodate a student, taking measures that would be an undue administrative or financial burden, or providing a personal service or device. (The federal Education Department's office for civil rights recently did find, however, that schools and colleges must be sure that technology is accessible to students with disabilities.)

While colleges and universities do need to work with students with disabilities, how they work with students varies widely, Ms. Hamblet said. What is considered an accommodation isn't always clear. So students and parents should do their homework before choosing a school, and they should be prepared for a very different experience from elementary, middle, and high school.

"College is a place of independent living and learning. We do expect a certain amount of independence from our students," she said. "I think students need to know they're going to a place where 12 to 15 hours a week professors teach and the rest of the learning is on your own."