Delay on Spec. Ed. Rules Prompts Concern

By Lynn Olson — November 19, 2003 7 min read
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Proposed federal rules about how to test students with the most significant cognitive disabilities and include those results in ratings of schools are still not final, eight months after the Department of Education released a draft version.

“I feel like we’re hanging out there not knowing what to do, and we’re headed into spring testing season,” said Patricia F. Sullivan, a deputy executive director of the Washington-based Council of Chief State School Officers. At the council’s annual meeting last week, the state chiefs formed a special task force to address special education issues.

In the past few weeks, Education Department officials have met with various interest groups as they work to write a final version of the regulations.

“We’re working to finalize them very soon,” said Daniel Langan, a department spokesman. “It’s taken longer than expected to complete these regulations.”

The long delay reflects the tensions around how to appropriately test all students with disabilities and hold schools accountable for their performance. Those students include youngsters with the most severe cognitive impairments and those who are functioning several grades below grade level.

Congress was largely silent on the issue in 2001 when it passed the No Child Left Behind Act, a reauthorization of the Elementary and Secondary Education Act that requires states to show progress each year in raising the achievement of nearly all their students.

In North Carolina, for instance, 283 schools failed to make “adequate yearly progress” under the federal law this year because they missed only one target. Of those, 146 missed a target for their special education subgroup.

“It’s been a very big concern for us,” said J.B. Buxton, the senior education adviser to North Carolina Gov. Michael F. Easley, a Democrat.

A Uniform Cap

The draft regulations, published last March 20 in the Federal Register, acknowledge that up to 1 percent of all students may have such “significant cognitive disabilities” that holding them to the same achievement standards as other students on a grade-level test would be inappropriate.

The federal government has suggested permitting such students to take an alternate assessment that is geared to other than a grade-level standard.

Under the draft rules, federal officials would not limit the number of special-needs students who could take alternate assessments. But no more than 1 percent of all students in the tested grades could take alternate assessments geared to other than grade- level standards and still have the results count as “proficient” for calculating adequate yearly progress under the federal law.

Federal officials are concerned that raising that ceiling would provide an incentive for states and districts to mislabel students in order to escape stricter accountability. Although states have been required to include special education students in their testing systems since 1994, and report those results, many have been slow to do so.

But the proposed cap has led to an outcry from some states and education groups who contend that it is both too low and too arbitrary.

“Any time something is handed down with a degree of rigidity, I do get concerned,” said Paolo DeMaria, the chief policy adviser to Gov. Bob Taft of Ohio, a Republican. Mr. DeMaria is one of several governors’ aides who have been involved in discussions with federal officials in recent weeks about the draft rules.

In a letter to Secretary of Education Rod Paige, four Democratic U.S. senators—Evan Bayh of Indiana, Thomas R. Carper of Delaware, Joseph I. Lieberman of Connecticut, and Debbie Stabenow of Michigan— also expressed their concern that the uniform cap does not provide “the flexibility we envisioned” under the No Child Left Behind law.

The draft rules would permit states and districts to seek waivers of the cap, if they could document that they had a higher incidence of students with significant cognitive disabilities. Some of the comments said that would be a fair compromise in the absence of better data. A few of those commenting even worried that the 1 percent cap was too high.

“That number assumes that one out of every hundred students is seriously cognitively disabled, and there are no statistics we are aware of to support that high a number,” the members of the President’s Committee on Mental Retardation wrote in their comments. “Our concern is that using a number that high may well permit schools to categorize students as seriously cognitively disabled who should not be so labeled, and provide these students an educational program well below their potential.”

For large school districts, the committee, which provides advice to the president and to the secretary of health and human services on issues related to mental retardation, suggested limiting the figure to 0.5 percent, as the Education Department originally proposed in August of last year.

‘A Bad Idea’

Many comments also expressed concern about the criteria for determining which students are “significantly cognitively disabled.” The new term does not coincide with any of the 13 disability categories now recognized under the Individuals with Disabilities Education Act, the primary federal special education law.

The department has defined such students as those “whose intellectual functioning and adaptive behavior are three or more standard deviations below the mean,” based on an IQ test or a similar measure.

“I think everybody, universally, said this is a bad idea,” said Ms. Sullivan of the CCSSO.

In part, that’s because of concerns that IQ tests discriminate against minority students. There is also concern that some students performing above that level still need something other than a grade-level assessment.

“There is no scientific basis for this arbitrary cutoff,” wrote an official with the New Jersey Department of Education, “nor is there any research demonstrating that students whose scores are slightly above this can be expected to achieve the state standards without modifications.”

Groups such as the National Association of School Psychologists argue that some students with autism, traumatic brain injury, multiple disabilities, or severe emotional disturbance also may need alternate assessments geared to other than a grade-level standard, yet would not fit the narrow language in the draft rules.

Some people have suggested permitting states to come up with their own, more functional descriptions, of which students would fit into the “significantly cognitively disabled” category.

An equally large concern is how to test special education students who are working significantly below grade level, but who do not have “significant cognitive impairments.” Giving such students a grade-level exam, and expecting them to score at the proficient level on it, could be extremely frustrating for children and yield little useful information about their performance, some educators argue.

In the past, many states have used out-of-level tests to measure the academic progress of some students with disabilities. Such tests were designed for a grade level below the one in which a student is enrolled. Both current regulations and the draft rules appear to prohibit the use of such exams.

But last summer, Secretary Paige gave states a temporary reprieve. For this school year only, he wrote, states could count the results of students who took “instructional level” tests in 2002-03 for purposes of calculating adequate progress. It’s not clear how the final rules will deal with the issue.

Out-of-Level Testing

While some educators strongly oppose the use of out-of-level testing, in part because of concerns that such tests lower expectations for students, others argue that they offer a realistic alternative.

“Students with significant disabilities should be tested according to their instructional level,” wrote Patricia R. Ashcraft, the director of staff development for the 45,000-student Shelby County, Tenn., school district. “A student who is several grade levels behind would not understand the grade- level test well enough to even read it correctly.”

Sandy Kress, a former education adviser to President Bush, said there had been some discussion in recent months of measuring the progress of at least some special education students by tracking how much improvement they make from year to year, rather than whether they perform at the proficient level.

But that approach now appears unlikely because it would be difficult to administer at the federal level, starting with the question of how much growth one could reasonably expect of those students.

While it’s not clear what the final rules will look like, Mr. Kress said, the goal should be to find some middle ground.

“Having a reasonable special education regulation is very important,” he said, “not only for disabled kids, but in the broader context of No Child Left Behind making it.”

A staff aide for Sen. Bayh said, “We’re hoping that these regulations can be released before the Senate considers [the reauthorization of] the IDEA, and as quickly as possible, so that we can have the debate and feedback on how these rules will work.”

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