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LDA NEWS FROM WASHINGTON

A Publication of The Learning Disabilities Association of America
MAY 15, 2005

 

STUDENTS WITH DISABILITIES AND NO CHILD LEFT BEHIND REQUIREMENTS OF NCLB

The goal of No Child Left Behind Act, signed into law on January 8, 2002, is to have all children proficient in reading and math by the 2013-14 school year. States set the standards, establish tests to measure the standards, and determine the rate at which they are moving towards that goal. Each subgroup in a school must meet the state's Adequate Yearly Progress (AYP) goal, which is based on the results of state tests and one additional academic indicator, such as graduation rate, or the school will be found in need of improvement. However, a school can be considered to meet AYP if

  1. The school reduces the percentage of students failing to meet state goal by at least 10% (the Safe Harbor Provision) and
  2. The school includes proficient scores (capped at 1% of the total population tested) for students with significant cognitive disabilities on alternate assessments based on alternate achievement standards.

States are also allowed to set their "n" which is a number that

  1. would yield reliable data that can be compared from year to year;
  2. is small enough to ensure that large numbers of students and schools are not excluded from accountability; and
  3. ensures that individual students cannot be identified.

Some states currently have a larger "n" for students with disabilities than for other subgroups, thus lowering the risk that a school could be found in need of improvement. Currently 8 states have larger "n's" for students with disabilities. Several other states have applied for larger "n's".

OPPOSITION TO NCLB

As more schools were found to be in need of improvement, opposition to the law increased. This opposition has been demonstrated by action in various states, including legislation, a lawsuit by the NEA, and proposed Congressional amendments to the law.

Specific examples include Connecticut, which is threatening to sue the Department because NCLB is an "unfunded mandate" which requires that children be tested annually in grades 3-5. Connecticut tests in grades 3,5,and 7. Connecticut is unhappy because recently released scores in the state show no overall improvement and continuing huge gaps in achievement between its poor and non-poor children and between white children and children of color. At the same time, Delaware, Massachusetts, and New York have narrowed its gaps and raised achievement levels for all children. Utah passed legislation which allows local education agencies to use state education goals when there is a conflict between those of the state and NCLB. Utah is unhappy because NCLB data show that Latino students in the state are three grade levels below White students in the state and below Latino students in 33 states.

Texas is negotiating with the Department of Education over the fact that 9% of students were tested using a state mixed grade-level version of the state assessment. The Department ruled this is an out-of-level test. The state has not developed a state alternate assessment for students with significant cognitive disabilities. This is left to the districts.

The National Education Association (NEA) filed a lawsuit on behalf of 9 school districts and 10 NEA affiliates asking that school districts be exempt from any requirements of NCLB that are not funded by the federal government.

FEDERAL LEGISLATION AMENDING NCLB

Although no federal action on NCLB is expected until it is due to be reauthorized in 2007, a number of bills challenging the accountability requirements of the law have been filed. The bills in the 109th Congress In chronological order are:

  • HR 224 Comprehensive Learning Investment for Students and Schools (CLASS) Act (Jan. 4, 2005, Strickland, D, OH) includes a provision which would permit the IEP team to allow a student with disabilities whose instructional level in core academic subjects is below the grade level in which the student is enrolled to be assessed using the State assessment that most closely responds to the student's instructional level.
  • HR 1177 State and Local Flexibility Act of 2005 (Mar. 8, 2005,Terry, R NE) includes provisions to allow 1) a student with a disability who graduates with a regular diploma in more than four years to be counted as meeting the graduation requirements of the law and 2) scores on curriculum modifications and assessments based on the student's IEP to count as proficient in making AYP.
  • S 724 No Child Left Behind Reform Act (Apr. 6, 2005,Dodd, D CT) (HR 1506 ) revises requirements for (1) adequate yearly progress (AYP); (2) academic assessment and local educational agency and school improvement; (3) school choice and supplemental services options; and (4) teacher qualifications.
  • HR 1722 To direct the Secretary of Education to Revise Regulations to Increase the Percentage of Proficient and Advanced Level Scores Based on Alternate Assessments and Alternate Achievement (Apr. 20, 2005, Bradly, R-NH) would make it easier to reach adequate yearly progress requirements by 1) increasing the percentage of proficient scores based on alternate assessments and alternate achievement standards for students with the most significant disabilities and 2) decreasing from 10 to 7% the percentage of students who meet or exceed the proficient level of academic achievement .
  • S 901 Flexibility for Champion Schools Act (Apr. 26, 2005, Allen, R-VA)(HR 1821) would waive certain requirements of AYP for states that have high accountability standards. The bill would also allow the state to determine the conditions under which students with disabilities take state tests and alternate assessments.

DEPARTMENT OF EDUCATION ANNOUNCEMENTS

FLEXIBILITY FOR STUDENTS WITH DISABILITIES

On April 7, Education Secretary Margaret Spellings announced the Department's willingness to allow new "flexibility" in meeting the mandates of No Child Left Behind.

The first step in easing the burden on states is a new policy on measuring adequate yearly progress (AYP) in reading and math for students with "persistent academic disabilities" served under IDEA. Students who score on a proficient level on a "separate assessment" based on "modified academic achievement standards" in the area of their disability can be counted as proficient in meeting the Adequate Yearly Progress requirements of NCLB. "Persistent academic disabilities", alternate assessments and modified achievement standards are not defined. The policy applies to "students who are not likely to reach grade-level achievement because of their disability in the same time frame as all other students, but who can make significant progress". The IEP team will describe which assessment the student should take and justify why the student cannot participate in the regular assessment, with appropriate accommodations, if necessary. Thus, the team may decide that a student may be able to take the standard assessment in grade level math but may need an alternate assessment based on a modified achievement standard in reading. The IEP decisions must be made about the student on an annual basis. Although there is no limit on the number of students who may take the alternate assessments, the scores are capped at 2% of all students taking the assessments (20% of students with disabilities).

The Secretary emphasized that this 2% cap is in addition to, and different from, the previously announced 1% cap (almost 10% of students with disabilities) for students with severe cognitive disabilities. According to the National Center on Educational Outcomes, only 10 states offer off-grade assessments for students with disabilities. Thirty seven states have discontinued such testing because NCLB did not recognize alternate assessments other than those for students with severe cognitive impairments.

RESPONSE TO THE NEW POLICY

Although many educators welcome the new flexibility, most are waiting to hear more details. The Education Task Force of the Consortium for Citizens with Disabilities sent a letter to the Secretary expressing concern that, unlike the policy for the 1% cap, the disability community was not consulted before the 2% policy was announced. The letter requested that

  1. The Department make it clear that this policy not be implemented until final regulations are issued.
  2. The proposed time frame for implementing this policy be delayed until the knowledge base to support it is in place.
  3. The Department recognize that the research and data cited for this policy are based on studies of students not yet eligible for special education (the response to intervention model) and that recent research has documented that students can be provided accommodations and universally-designed materials to overcome barriers of poor decoding and/or computational skills, so that they can be taught and master grade level skills.
  4. All states participate in implementing this policy
  5. The Department provide and disseminate acceptable and scientifically validated assessment instruments; provide training and technical assistance; and inform schools that nothing in this new policy allows schools to limit access to the general curriculum.
  6. Teachers, parents and other IEP team members be trained to make appropriate and responsible decisions about what type of assessment is appropriate for each student.
  7. The term "persistent academic disabilities" be discarded.
  8. The Department give clear guidance about the length of time a student will be assessed under modified achievement standards.
  9. The Department must clarify how states and districts will be monitored to ensure that the policy is being administered appropriately.

DEPARTMENT'S GUIDELINES

On May 10, Education Secretary Spellings announced that eligible states can adjust their 2005-06 school year AYP (adequate yearly progress) goals based on 2004-05 NCLB if

  1. At least 95% of students with disabilities participate in statewide tests for the purposes of calculating adequate yearly progress (AYP).
  2. Appropriate accommodations are available for students with disabilities
  3. Alternate assessments in reading/language arts and mathematics are available for students with disabilities who are unable to participate in the regular assessment, even with accommodations, and results from those assessments must be reported.
  4. The state's subgroup size for students with disabilities is equal to that of other student groups. This option applies only to schools or districts that did not make AYP based solely on the scores of their students with disabilities. States interested states in this flexibility must submit a statement of intention to the Department by June 1.

While allowing flexibility for eligible states, the Department is working on regulations to implement the new policy. A notice of proposed rulemaking will be published for comments before the final regulations are issued. The goal of the regulations is to:

  1. Ensure that states hold the 2 percent population to challenging, though modified, achievement standards that enable them to approach, and even meet, grade-level standards;
  2. Ensure access to the general curriculum to ensure students are taught to the same high standards.
  3. Measure progress with high-quality alternate assessments so parents are confident that their students are learning and achieving.
  4. Provide guidance and training to IEP teams to identify these students properly.
  5. Provide professional development to regular and special education teachers. States must continue to meet the requirements of NCLB related to students with disabilities.

The Department will allocate $14 million to help states provide rigorous assessment instruction, and accountability.

The guidelines can be downloaded from www.ed.gov Headlines: New Special Ed Guidelines and Common Sense NCLB Policy. While the term "persistent academic disabilities" is no longer used, alternate assessments and modified achievement standards still are not defined. In addition, in the guideline on "Adequate Yearly Progress and Modified Achievement Standards: Interim State Policy Options", Option #2 states that "Out-of level assessments do not qualify as assessments based on modified achievement standards for this purpose." It is not clear if this statement applies to out of level testing in general or just eligibility for the states applying for relief in the coming year.

BUDGET AND APPROPRIATIONS

BUDGET PASSES: Both the House and Senate passed a Fiscal Year 2006 (FY06) Budget Resolution lays out congressional spending priorities for the next fiscal year and includes the total dollar amount available to the appropriations committees to spend on whatever programs they decide. That dollar amount is $843 billion for all discretionary spending, an overall cut of 1% in discretionary spending accounts. Along with the total dollar amount, the Budget Resolution also includes "reconciliation instructions" to various committees. Reconciliation is a process whereby committees have to make cuts in mandatory programs (e.g., Medicaid, Medicare, Social Security, nutrition programs, and student loan programs) to reach a certain number, the resulting savings going to deficit reduction. Appropriators have been instructed to cut $34.7 billion over the next 5 years. Instructions include a cut of $7 billion in student loan programs and $10 billion from Medicaid.

Legislation to achieve these cuts must be reported out of the committees of jurisdiction by Sept. 16, 2005. The Budget Resolution also includes a 3-year cap on discretionary spending. In addition, there are special reserve funds for the Pell Grant Program and for the Family Opportunity Act. For Pell Grants, a reserve fund means that if a bill is reported that eliminates the accumulated shortfall in the program, the Budget Committee guarantees that the appropriate adjustment will be made for this purpose. The same holds true for the Family Opportunity Act. If the committees report legislation that expand Medicaid coverage to children with special needs to permit their parents to purchase coverage, funds will be made available to cover this purpose.

APPROPRIATIONS NEXT

Specific allocations are being given to each of the appropriations subcommittees. These subcommittees decide how their allocations will be distributed among the programs under their jurisdiction. They have already been holding hearings to learn more about the needs of various programs under their jurisdictions. Programs of interest to LDA are under several subcommittees: Labor-Health and Human Services-Education (education, health, social services); Commerce-Justice-State (juvenile justice); and, Interior-Environment (environment). House Appropriations Committee Chairman Jerry Lewis (R-CA) has circulated subcommittee allocations for consideration by the Full Committee next week. The allocations are not official until they have been adopted by the Full Committee and are typically adjusted several times throughout the year. The Chairman expressed the hope that all the bills will move through the House by the July 4th break. This will give the Senate ample time to move its bills and facilitate the completion of our work on time and under budget."

OTHER LEGISLATION

REAUTHORIZATION OF THE CARL PERKINS VOCATIONAL AND TECHNICAL EDUCATION ACT
Despite the Administration's opposition, both the Senate and the House passed versions of the reauthorization (S 250, HR 366). A conference committee to reconcile differences between the two bills has not yet been named..

REAUTHORIZATION OF THE WORKFORCE INVESTMENT ACT (WIA)
The House is waiting for action from the Senate. The HELP committee is still working on introducing a bipartisan bill.

REAUTHORIZATION OF HEAD START
On May 11 the House Subcommittee on Education Reform passed H.R. 2123, the School Readiness Act of 2005. The Senate bill is expected to be introduced before the Memorial Day recess.

REAUTHORIZATION OF TEMPORARY AID TO NEEDY FAMILIES (TANF)
Action on the reauthorization seems to be stalled. Authorization for the act expires on June 30.

CHILD MEDICATION SAFETY ACT OF 2005 (HR 1790) to protect children and their parents from being coerced into administering a controlled substance or psychotropic drug in order to attend school was introduced on April 25, 2005

FEDERAL AGENCIES

OFFICE OF SPECIAL EDUCATION PROGRAMS:

Proposed regulations for IDEA are expected by late Spring.

Dr. Troy Justesen will serve as Acting Director of the Office of Special Education Programs (OSEP). He will also continue to serve as Acting Deputy Assistant Secretary.

LDA News from Washington is a periodic publication of The Learning Disabilities Assocation of America, Inc., 4156 Library Road, Pittsburgh, PA 15234-1349, Phone: 412.341.1515, Fax: 412.344.0224

This is a bulletin containing news of interest to the volunteer and administrative leadership of LDA National and its State and Local Affiliates. Written by LDA's Washington Representative, Justine Maloney; Kathy Lawson, Editor. LDA members wishing to be added to the email list may contact Kathy Lawson, at klawson@ldaamerica.org.

Learning Disabilities Association of America
4156 Library Road
Pittsburgh, PA 15234-1349
Phone (412) 341-1515 Fax (412) 344-0224
www.LDAAmerica.org

© 2004 LDA of America