Meeting of the Board of Regents | January 2009
THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
Rebecca H. Cort
Mandate Relief – Special Education Requirements
December 23, 2008
Goals 1 and 2
Issue for Discussion
Considerations of potential cost-saving mandate relief proposals in special education.
Reason for Consideration
This item will come before the Committee for discussion at its January 2009 meeting.
In response to the fiscal situation in New York State (NYS), the Board of Regents has requested that VESID provide a summary of requirements that may result in significant cost savings to school districts, but that will not significantly impact the quality of special education supports and services available to students with disabilities. Annually, VESID conducts a review of its special education requirements that are not otherwise required by federal law or regulation, makes this information available to the public and seeks public comment on recommendations relating to these requirements.
In December 2008, the Commission on Property Tax Relief issued its blueprint for how to solve New York State’s property tax problem. This report included recommendations for cost savings relating to special education services, including recommendations to:
- Shift the emphasis of the State Education Department (SED) from regulatory enforcement to outcome-based accountability through targeted intervention to promote best practices in school districts.
- Dramatically accelerate the integration of special education with general education, improving and increasing opportunities to benefit students who need extra help within the general education setting.
- Decrease special education classification rates by requiring SED to review those school districts with classification rates 20 percent higher than the State average and determine whether assistance is needed.
- Reduce the cost of litigation by promoting alternative dispute resolution, improving the consistency and effectiveness of hearing officers, and by shifting the burden of proof back to the plaintiff except when the family is unable to afford counsel.
- Increase collaboration to enhance local and regional service delivery to students.
- Secure additional federal funding to reduce the pressure on the property tax.
The following information is responsive, in part, to the Commission on Tax Property relief recommendations and identifies SED actions that align with the above recommendations:
Shift the emphasis of SED from regulatory enforcement to outcome-based accountability through targeted intervention to promote best practices in school districts.
- Federal law and regulations establish the accountability measures for special education and they include important outcome measures such as graduation and drop out rates, participation and performance on State assessments, and placements of students in the least restrictive environment. They also include accountability measures that are compliance (regulatory) requirements that have been determined to be directly related to student outcomes (e.g., completion of evaluations within State required timelines; transition planning documentation on students' individualized education programs (IEPs); whether disproportionality in the identification of students with disabilities by race/ethnicity is the result of inappropriate policies and procedures).
- The U.S. Department of Education has increased its emphasis and requirements on states to identify and ensure timely correction of all findings of noncompliance (regulatory enforcement). VESID has advocated at the federal level for a reduction in the number of accountability measures in special education, which present data collection and reporting burdens on both the states and school districts. We have also strongly advocated for a shift in their focus from compliance to performance results. Effective December 31, 2008, federal regulations were amended to add that all issues of noncompliance must be corrected as soon as possible, but not later than one year from the date of the compliance finding.
- Each year VESID identifies school districts that are in need of assistance or in need of intervention to reach the targets set for these accountability measures and provides technical assistance, professional development and grant funds to those identified districts to promote best practices in school districts. These technical assistance efforts are directly aimed at bringing and sustaining research-based instructional practices in these school districts. VESID is also identifying best practice schools throughout the State with a goal to promote district-to-district sharing and replication of these best practices.
Dramatically accelerate the integration of special education with general education, improving and increasing opportunities to benefit students who need extra help within the general education setting.
- One of the major initiatives promoted at the federal level to support this recommendation is Response to Intervention (RtI). In 2007, the Board of Regents adopted regulations that define RtI. SED has internal and external workgroups to promote development of RtI programs in all school districts in this State. VESID has awarded a contract to Buffalo State College to serve as the State's technical assistance center on RtI and will be working closely with up to 14 school districts in this State to develop model RtI programs.
- Each school district may opt to use up to 15 percent of its Individuals with Disabilities Education Act (IDEA) funds for "comprehensive early intervening services" (CEIS). CEIS are services provided to students not yet identified as having a disability. For any school district whose data shows significant disproportionality by race/ethnicity in the identification, classification, placement and/or suspension of students with disabilities, it must use the full 15 percent of its IDEA funds for CEIS.
Decrease special education classification rates by requiring SED to review those school districts with classification rates 20 percent higher than the State average and determine whether assistance is needed.
Each year, VESID identifies school districts whose graduation and drop out rates and/or performance and participation of students with disabilities on State assessments falls dramatically far from the State's target. In many instances, these are the school districts that also have classification rates of students with disabilities that are above the State's average. Through a focused review monitoring of these school districts, VESID identifies those policies, procedures and practices that may be leading to high classification rates. VESID will add consideration of classification rates of students with disabilities that are in excess of approximately 15 percent to its criteria to determine if a school district is in need of assistance or intervention.
Reduce the cost of litigation by promoting alternative dispute resolution, improving the consistency and effectiveness of hearing officers, and by shifting the burden of proof back to the plaintiff except when the family is unable to afford counsel.
For an extensive discussion on actions the State is taking to promote alternative dispute resolution and improve the consistency and effectiveness of hearing officers, see the Regents item "Dispute Resolution in Special Education – A Review and Analysis of New York State Due Process System."
Secure additional federal funding to reduce the pressure on the property tax.
With each reauthorization of IDEA, the Board of Regents, in their federal agenda, has strongly advocated for additional federal funds to implement IDEA. In addition to IDEA dollars that the State flows through to school districts, VESID uses the majority of its IDEA discretionary funds to provide direct technical assistance and grant funds to school districts. These funds offset expenditures from local funds that may be necessary to improve instructional practices for students with disabilities.
Areas for Consideration for Mandate Relief/Cost-Saving Proposals
VESID has identified the following State law and/or regulatory requirements that are not otherwise required by federal law and regulation that the Regents may wish to consider as areas for cost-saving mandate relief.
- Aging Out Notifications
Education law establishes procedures and timelines for the Committee on Special Education (CSE) to provide written notice to the parents of students who are in residential care or who are receiving full-time special education programs to obtain consent to share information on the student with appropriate adult agencies; and to forward information to these adult agencies and submit an annual report to SED. This statute was enacted prior to the date that federal law mandated individual IEP transition planning requirements. With the requirement that transition planning occur for each student and representatives of other agencies likely to provide or pay for transition services must, with the consent of the parent, be invited to the CSE meetings, the aging out notifications could be eliminated without significantly impacting sound transition planning for individual students. The proposed repeal of this requirement was included in the 2009-10 Executive Budget.
Question: Should SED propose legislation to repeal these aging out notifications?
- Special Education Space Planning Requirements
Education Law requires that each Board of Cooperative Educational Services (BOCES) submit a special education space requirements plan every five years. This regional planning requirement has been effective in providing for appropriate educational space for students with disabilities in the least restrictive environment (LRE). Subsequent to the initiation of this requirement, the reauthorized IDEA instituted a range of data submissions that each state must include in the State Performance Plan (SPP). As a result, the State collects and publicly reports on each school district's LRE placements for students with disabilities in relation to the State's targets. These SPP requirements can ensure that each school district provides appropriate educational space for students with disabilities in the least restrictive environment, which is the intended purpose of special education space planning requirements.
Question: Should SED propose legislation to repeal the Space Planning requirement?
- District Plans
State law and regulations require each school district that receives State aid for students with disabilities to use such apportionments for special education programs and services and to prepare satisfactory plans periodically at the intervals required by Education law (which is every two years), that describes:
- nature and scope of special education programs and services available to students with disabilities;
- number and age span of students and preschool students to be served by type of disability and recommended setting;
- method to be used to evaluate the extent to which the objectives of the program have been achieved;
- policies and practices of the board of education to ensure the continual allocation of appropriate space within the district for special education programs;
- policies and practices of the board of education to ensure that appropriate space will be continually available for students with disabilities who attend special education programs provided by BOCES;
- how the district intends to ensure that all instructional materials to be used in the schools of the district will be made available in a usable alternative format that meets the federal standard, at the same time as such instructional materials are available to nondisabled students;
- estimated budget to support such plan;
- date on which the plan was adopted; and
- how the district plan is consistent with the BOCES regional space plan.
Question: Should SED propose legislation to repeal the district plan requirements?
- Due Process Statute of Limitations
Education law was amended in 2005 to establish a two-year statute of limitations for filing an impartial hearing request. Prior to 2005, NYS required that an impartial hearing be commenced within one year of the date on which the parent or public agency knew or should have known about the action that forms the basis for the complaint. The effect of a two-year statute of limitations has been to double the amount of time for a party to bring a complaint, thereby increasing the complexity of impartial hearings and imposing substantial additional due process costs on school districts and the State. Requests for impartial hearings, in particular for claims for tuition reimbursement or compensatory education have increased since 2005. In addition, a statute of limitations of more than one year to request an impartial hearing is programmatically inappropriate since IEPs are developed for one year. IDEA due process procedures should be designed to resolve disputes within one year so that any resulting changes needed to assure that the student receives a free appropriate public education are made in time to benefit the student.
Question: Should SED propose legislation to restore the one-year statute of limitations that applied until Chapter 352 of the Laws of 2005 extended the period to two years? The time limitation would not apply if the parent is prevented from requesting an impartial hearing due to specific misrepresentations by a school district or the district’s withholding of information it was required to provide under federal law.
- Dissemination of Copies of IEPs
Education law and regulations require that copies of IEPs be provided to teachers and providers before the implementation of the IEP. This means that each of the student's special education teachers and related service providers must be given his/her individual copy of each student's IEP. This requirement exceeds federal law which requires that teachers have access to a copy of a student's IEP and is informed of their specific responsibilities for implementation of each student's IEP.
Question: Should SED propose legislation to repeal the requirement for dissemination of copies of students’ IEPs?
- Membership of the CSE and Committee on Preschool Special Education (CPSE)
Federal law establishes the required membership of IEP teams. In NYS, a subcommittee on special education has the same membership as the federal IEP team. However, State law added the following additional members to the CSE and CPSE.
- School psychologist
- Additional parent member
- School physician - required only at the written request of the parent or district at least 72 hours before the meeting (for CSE)
- Representative of the municipality (for CPSE) - participation not required for a quorum
The participation of the additional parent was first enacted in NYS at a time when the federal law did not include the provision that the parent could bring other individuals to the IEP meeting. Ensuring that a parent of another student with a disability is available to participate in CSE/CPSE meetings has presented many challenges to school districts. These challenges were addressed somewhat by changes to State law a few years ago allowing the parent to decline the additional parent member's participation and allowing school districts to use parents from neighboring school districts or parents of students with disabilities who had graduated within five years. While the additional parent members cannot be compensated for their participation on the CSE/CPSE, school districts do incur related administrative costs to ensure additional parent member participation and training. The lack of availability of the additional parent member can result in difficulty meeting mandated timelines for required meetings and possible due process challenges.
School psychologists are required members of the CSE/CPSE and sometimes the Subcommittee on Special Education but they are not federally required members. However, school psychologists often fill the federal and State mandated member role of the school district representative on the committee, since State law provides this flexibility to Committee membership.
Should SED propose legislation to align the CSE and CPSE membership to the federally-required members?
- Parental Consent for July/August Services
Federal regulations require that parental consent be obtained prior to an evaluation or reevaluation of a student suspected of having a disability and prior to the first time a child is provided special education services. In NYS, written parental consent is also required prior to initial provision of special education services in a 12-month special service and/or program (i.e., July/August services). Minimizing the instances when consent from parents must be obtained would provide some relief from procedural compliance requirements.
Question: Should SED propose legislation to repeal the requirement for parental consent prior to the provision of July/August services provided for the first time to a student with a disability?
- Level 1 Vocational Assessments
State regulations require that the school district conduct a review of school records, that includes teacher assessments, and conduct parent and student interviews to determine the vocational skills, aptitudes and interests of each student with a disability who is age 12. While the IEP is not required to address transition planning until the school year in which the student turns age 15, these Level 1 vocational assessments are the first step to inform this planning process. Since school districts must consider appropriate vocational assessments in the transition planning process, the mandated Level 1 vocational assessment for every student with a disability at age 12 may or may not inform this individual transition planning process in a meaningful way.
Question: Should SED propose regulations to repeal the Level 1 Vocational Assessment requirement?
- Minimum Level of Service, Instructional Group Size and Maximum Caseload
State law/regulations establish minimum levels of service requirements for consultant teacher, resource room and speech and language services, maximum caseload of consultant teacher and speech and language therapists, and maximum group sizes for related services and resource room programs. While these minimum level of service requirements may be necessary for State aid purposes, the determinations of the level of service necessary for each student should be made on an individual basis, in consideration of the extent to which such services are needed for the student to reach his/her annual goals.
Consultant teacher services
- The total number of students with disabilities assigned to a consultant teacher cannot exceed 20. Current regulations allow a waiver to the maximum caseload requirement.
- Each student requiring consultant teacher services (direct and/or indirect) must be provided such services for a minimum of two hours each week, except that if the student is also receiving resource room services, the student may receive a combination of such services for not less than three hours per week.
- Should SED propose regulations to repeal, without affecting any State aid formulas, the minimum level of service requirements for consultant teacher services?
- Should SED propose regulations to repeal the maximum caseload requirements for consultant teacher services?
Resource room programs
- Each student requiring a resource room program must receive not less than three hours of instruction per week in such program, except that if the student is also receiving consultant teacher services, the student may receive a combination of such services for not less than three hours per week.
- The maximum number of students with disabilities in a resource room program cannot exceed five students, except that New York City (NYC) has been granted a variance for up to eight students.
- The maximum number of students with disabilities assigned to a resource room teacher cannot exceed 20 students for students in grades K-6, except that a variance has been granted for NYC for a maximum of 30 students; and 25 students at grades 7-12 or a multi-level middle school program operating on a period basis, except that NYC has been granted a variance of up to 38 students.
- Should SED propose regulations to repeal, without affecting any State aid formulas, the minimum level of service requirements for resource room programs?
- Should SED propose regulations to repeal the maximum caseload requirements of a resource room teacher?
- Should SED propose regulations to repeal the maximum group size for resource room programs? If repealed, should the district be required to include the individually determined maximum group size on each student’s IEP?
Speech and language related services
- Each student requiring speech and language services must be provided a minimum of two 30-minute sessions each week.
- The maximum caseload of teachers providing such services cannot exceed 65.
- The maximum number of students receiving services at the same time cannot exceed five students, except that NYC has been granted a variance for up to eight students.
State requirements that students receive a minimum level of service may be limiting discretion of the CSE/CPSE to determine the level a services each individual student needs based on that student's disability needs and may, in some cases, lead to some students receiving more services than are necessary.
- Should SED propose regulations to repeal, without affecting any State aid formulas, the minimum level of service requirements for speech and language services?
- Should SED propose regulations to repeal the maximum group size requirements for speech and language services? If repealed, should the district be required to include the individually determined maximum group size on each student’s IEP?
- Should SED propose regulations to repeal the maximum caseload requirement for teachers providing speech and language services?
- Notifications when the math and reading levels of students with disabilities in special classes exceed three years
State regulations require that each school district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years must, except for classrooms containing students whose management needs are determined to be intensive and requiring a significant degree of individualized attention and intervention and classrooms containing students with severe multiple disabilities whose programs consist primarily of habilitation and treatment, provide the CSE and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics, and the general levels of social development, physical development and management needs in the class, by November 1st of each year. The parent of each student entering such a class after November 1st must also be provided a description of the class. A district providing such a description must also inform the parent of each student in such class that, upon request, the parent will be afforded the opportunity to discuss the description with an appropriate representative of the district. A copy of such description must also be included in the district plan. The repeal of the three-year math and reading level requirements are not likely to have a negative impact on student performance given that other requirements exist that students grouped together for purposes of special education be placed based on similarity of need, including consideration of academic and functional, physical, social and management needs.
Question: Should SED propose regulations to repeal the notification requirements when the students enrolled in a special class have math and reading achievement levels that exceed three years?
- Parentally-Placed Students with Disabilities
Education law requires a school district where a nonpublic school is located to conduct child find activities and provide special education services to students with disabilities parentally placed in a nonpublic school that is located in the school district. These requirements exceed federal law which requires the district of location to provide special education services consistent with the district's proportionate share of federal dollars. NYS has a long history of providing comparable special education services to its parentally-placed students with disabilities as it provides to its publically-placed students with disabilities. However, the shift from the district of residence as the provider of such services to the district of location has resulted in complex and costly systems, which require individual calculations of costs of special education for billing to school districts where the parents of such students reside. SED is conducting a Roundtable discussion on this topic later this month to obtain stakeholder input on recommendations for legislative remedies to address the complexity and costs of providing such services.
Question: The questions on this topic are deferred until after the January Roundtable discussion to more fully inform the Regents on this matter.
With your direction, VESID will work with the State Aid workgroup to provide estimates of cost savings related to any designated proposals and to develop legislative/regulatory proposals, and seek public comment as required by IDEA, to provide mandate relief to school districts.
This report can be found at http://www.vesid.nysed.gov/specialed/idea/2008regsanalysis.htm.