[Federal Register Volume 79, Number 118 (Thursday, June 19, 2014)]
[Notices]
[Pages 35154-35156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-14388]


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DEPARTMENT OF EDUCATION

[Docket No. ED-2014-OSERS-0058]


Request for Information on Addressing Significant 
Disproportionality Under Section 618(d) of the Individuals With 
Disabilities Education Act (IDEA)

AGENCY: Office of Special Education and Rehabilitative Services, U.S. 
Department of Education.

ACTION: Request for Information.

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SUMMARY: The U.S. Department of Education (Department) is requesting 
public comment on the actions that the Department should take to 
address significant disproportionality based on race and ethnicity in 
the identification, placement, and discipline of children with 
disabilities. Specifically, we are requesting input from the public on 
actions the Department should take related to: (1) Significant 
disproportionality based on race and ethnicity in the (a) 
identification of children as children with disabilities, including 
identification by disability category; (b) placement of children with 
disabilities in particular educational settings; and (c) the incidence, 
duration, and type of disciplinary action taken with respect to 
children with disabilities; and (2) ensuring that funds reserved for 
comprehensive, coordinated early intervening services (CEIS) under Part 
B of the IDEA are used to effectively address significant 
disproportionality.

DATES: Responses must be received by July 21, 2014.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via U.S. mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email or those submitted after the comment 
period. To ensure that we do not receive duplicate copies, please 
submit your comments only once. In addition, please include the Docket 
ID and the term ``CEIS and Significant Disproportionality'' at the top 
of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Are you new to this site?''
    U.S. Mail, Commercial Delivery, or Hand Delivery: If you mail or 
deliver your comments, address them to Larry Ringer, Attention: IDEA 
Determinations RFI, U.S. Department of Education, 400 Maryland Avenue 
SW., Room 4032, Potomac Center Plaza (PCP), Washington, DC 20202-2600.

    Privacy Note:  The Department's policy for comments received 
from members of the public (including comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing in their entirety on the Federal 
eRulemaking Portal at www.regulations.gov. Therefore, commenters 
should be careful to include in their comments only information that 
they wish to make publicly available on the Internet.

    Submission of Proprietary Information: Given the subject matter, 
some comments may include proprietary information as it relates to 
confidential commercial information. The Freedom of Information Act 
defines ``confidential commercial information'' as information the 
disclosure of which could reasonably be expected to cause substantial 
competitive harm. You may wish to request that we not disclose what you 
regard as confidential commercial information.
    To assist us in making a determination on your request, we 
encourage you to identify any specific information in your comments 
that you consider confidential commercial information. Please list the 
information by page and paragraph numbers.

    Note:  This Request for Information (RFI) is issued solely for 
information and planning purposes and is not a request for proposals 
(RFP), a notice inviting applications (NIA), or a promise to issue 
an RFP or NIA. This RFI does not commit the Department to contract 
for any supply or service whatsoever. Further, the Department is not 
now seeking proposals and will not accept unsolicited proposals. The 
Department will not pay for any information or administrative costs 
that you may incur in responding to this RFI.

    If you do not respond to this RFI, you may still apply for future 
contracts and grants. The Department posts RFPs on the Federal Business 
Opportunities Web site (www.fbo.gov). The Department announces grant 
competitions in the Federal Register (www.gpo.gov/fdsys). It is your 
responsibility to monitor these sites to determine whether the 
Department issues an RFP or NIA after considering the information 
received in response to this RFI.
    The documents and information submitted in response to this RFI 
become the property of the U.S. Government and will not be returned.

FOR FURTHER INFORMATION CONTACT: Larry Ringer, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 4032, PCP, Washington, DC 
20202-2600. Telephone: (202) 245-7496.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    In section 601(c)(12)(A) and (B) of the IDEA, Congress found that, 
``[g]reater efforts are needed to prevent the intensification of 
problems connected with mislabeling and high dropout rates among 
minority children with disabilities,'' and that, ``[m]ore minority 
children continue to be served in special education than would be 
expected from the percentage of minority students in the general school 
population.'' The IDEA and its implementing regulations include 
specific requirements to address those findings.
    Specifically, section 618(d)(1) of the IDEA and the implementing 
regulations in 34 CFR 300.646(a) require each State to collect and 
examine data to determine if significant disproportionality based on 
race and ethnicity is occurring in the State and the local educational 
agencies (LEAs) of the State with respect to:
    1. The identification of children as children with disabilities, 
including the identification of children as children

[[Page 35155]]

with disabilities in accordance with a particular impairment described 
in section 602(3) of the IDEA;
    2. The placement in particular educational settings of children 
with disabilities; and
    3. The incidence, duration, and type of disciplinary actions, 
including suspensions and expulsions, taken with respect to children 
with disabilities.
    In cases where a determination of significant disproportionality is 
made in one or more of these areas based on the collection and 
examination of data, States must: (1) Provide for the review and, if 
appropriate, revision of policies, procedures, and practices used in 
identification, placement, or disciplinary actions to ensure compliance 
with the requirements of the IDEA; (2) require any LEAs identified as 
having significant disproportionality to reserve the maximum amount of 
funds under IDEA section 613(f) and 34 CFR 300.226 to provide CEIS to 
children in the LEA, particularly children in groups that are 
significantly overidentified; and (3) require the LEA to publicly 
report on the revision of policies, procedures, and practices used in 
identification, placement, and disciplinary actions. Section 618(d)(2) 
of the IDEA and 34 CFR 300.646(b); see also, Analysis of Comments and 
Changes, Assistance to States for the Education of Children with 
Disabilities and Preschool Grants for Children with Disabilities; Final 
Rule, August 14, 2006 (71 FR 46540, 46738); and OSEP Memorandum 07-09, 
April 24, 2007, Disproportionality of Racial and Ethnic Groups in 
Special Education. http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep07-09disproportionalityofracialandethnicgroupsinspecialeducation.pdf.
    The IDEA and its implementing regulations allow LEAs that are not 
required to reserve funds for CEIS to voluntarily use up to 15 percent 
of their IDEA Part B funds to provide CEIS to children in kindergarten 
through grade 12 (with a particular emphasis on children in 
kindergarten through grade three) who are not currently identified as 
needing special education or related services, but who need additional 
academic or behavioral support to succeed in a general education 
environment. Section 613(f)(1) of the IDEA and 34 CFR 300.226(a).
    Neither the IDEA nor the regulations define the term ``significant 
disproportionality.'' As stated in the preamble to the final IDEA Part 
B regulations published in the Federal Register on August 14, 2006, 
``[w]ith respect to the definition of significant disproportionality, 
each State has the discretion to define the term for the LEAs and for 
the State in general. Therefore, in identifying significant 
disproportionality, a State may determine statistically significant 
levels.'' (Analysis of Comments and Changes, Assistance to States for 
the Education of Children with Disabilities and Preschool Grants for 
Children with Disabilities; Final Rule, August 14, 2006 (71 FR 46540, 
46738).)
    The Department has afforded States broad discretion in defining 
significant disproportionality and in establishing procedures for 
identifying significant disproportionality within their States. 
Consequently, there is wide variation in how significant 
disproportionality is defined and identified in LEAs across States.
    Data collected by the Department's Office of Special Education 
Programs (OSEP) and Office for Civil Rights (OCR) show significant 
racial and ethnic disparity in the identification of children for 
special education, including identification by disability category, 
educational placement, and disciplinary action. Based on these data, 
the Department has been concerned about the very small number of LEAs 
that have been identified by their States as having significant 
disproportionality, and the resulting limited funds that LEAs are 
required to use for CEIS to address that significant 
disproportionality. The Department is also concerned that the 
definitions and procedures for identifying LEAs with significant 
disproportionality that many States have established may set the bar so 
high that even LEAs with significant racial and ethnic disparities in 
the identification of children for special education are not identified 
as having significant disproportionality.
    In February 2013, the Government Accountability Office (GAO) issued 
a report on CEIS, particularly as it relates to racial and ethnic 
overrepresentation in special education, which reinforced the 
Department's concerns. The GAO report, titled ``Individuals with 
Disabilities Education Act: Standards Needed to Improve Identification 
of Racial and Ethnic Overrepresentation in Special Education (GAO-13-
137), can be found at www.gao.gov/products/GAO-13-137. In this report, 
the GAO examined the numbers and characteristics of LEAs that provide 
CEIS, how States determine which LEAs are required to provide CEIS, the 
types of CEIS provided, and oversight by the Department and States. 
Specifically, the GAO: (1) Examined data on CEIS for school years 2009-
10 and 2010-11; (2) reviewed 16 States' methods for identifying LEAs 
with significant disproportionality, including States that did and did 
not require LEAs identified with significant disproportionality to 
provide CEIS services; (3) visited State educational agencies (SEAs) 
and LEAs in four States; and (4) interviewed Federal, State, and local 
officials. GAO found that, ``the discretion that States have in 
defining significant disproportionality has resulted in a wide range of 
definitions that provides no assurance that the problem is being 
appropriately identified across the nation.'' According to the GAO 
report, ``[a]mong the almost 15,000 school districts nationwide that 
received IDEA funding in school year 2010-2011, states required 356 
(2.4 percent) districts to use these funds for early intervening 
services due to significant disproportionality.''
    ``To better understand the extent of racial and ethnic 
overrepresentation in special education and promote consistency in how 
States determine the districts required to provide early intervening 
services,'' the GAO recommended that the Department ``develop a 
standard approach for defining significant disproportionality to be 
used by all states. This approach should allow flexibility to account 
for state differences and specify when exceptions can be made.''
    Context for Responses and Information Requested:
    Given the discretion a State currently has to define the term 
``significant disproportionality'' for the State and its LEAs, the 
Department requests public comment on how best to address significant 
disproportionality based on race and ethnicity in the identification of 
children for special education, including identification by disability 
category, educational placements, and disciplinary actions. In addition 
to this request for public comment, the Department will be collecting 
through EDFacts (the portal through which OSEP collects special 
education and other data from States) State definitions of significant 
disproportionality and information on the categories (as set forth in 
the IDEA) in which States have determined that a significant 
disproportionality based on race and ethnicity exists in the 
identification of children for special education, including 
identification by disability category, in placement of children with 
disabilities in particular educational settings, and in disciplinary 
action taken with respect to children with disabilities.
    The Assistant Secretary for Special Education and Rehabilitative 
Services invites the public, including States, LEAs, parents, advocacy 
groups, researchers, and professional

[[Page 35156]]

organizations, to provide comment on, and offer proposals for: (1) 
Addressing significant disproportionality; (2) encouraging greater 
voluntary use of funds for CEIS in LEAs showing significant disparities 
(but no determination of significant disproportionality) by race and 
ethnicity in the rates of identification of children for special 
education, including identification by disability category, educational 
placements, and disciplinary actions; and (3) encouraging more 
effective, targeted use of funds for CEIS to address significant 
disproportionality in both districts required to use funds for CEIS (as 
a result of a determination of significant disproportionality) and 
districts choosing to use funds for CEIS. The Department will review 
the data collected under section 618 of the IDEA and by the 
Department's Office for Civil Rights, together with the information in 
the GAO report and all of the input and information received in 
response to this RFI, to determine what, if any, actions the Department 
should take to address significant disproportionality.
    The Assistant Secretary requests comment on the following 
questions:
    1. Should the Department issue proposed regulations requiring 
States to use a standard approach to determine which LEAs have 
significant disproportionality? If so, how might a standard approach 
properly account for State differences (e.g., population size, 
population composition, and LEA size) ? If so, what should be included 
in such a standard approach?
    2. What actions, apart from requiring a standard approach, should 
the Department take to address the very small number of LEAs identified 
with significant disproportionality, despite data (including the data 
the Department collects under section 618 of the IDEA, data collected 
by the Department's Office for Civil Rights, and the information in the 
GAO report) showing significant disparities, based on race and 
ethnicity, in the identification of children for special education, 
including by disability category, educational placements, and 
disciplinary actions?
    3. What actions, including research- or evidence-based actions, 
should the Department take to: (a) Encourage greater voluntary use of 
funds for CEIS in LEAs showing significant disparities (but no 
determination of significant disproportionality, pursuant to 34 CFR 
Sec.  300.646), by race and ethnicity, in the rates of identification 
of children for special education, including identification by 
disability category, educational placements, and disciplinary actions; 
and (b) assist LEAs in more effectively targeting their use of funds 
for CEIS to address significant disproportionality in both districts 
required to use funds for CEIS (as a result of a determination of 
significant disproportionality) and districts choosing to use funds for 
CEIS, in a manner that is both consistent with the requirements of the 
IDEA and which will help to address the causes and effects of 
significant disproportionality?
    You may provide comments in any convenient format (i.e., bullet 
points, charts, graphs, paragraphs, etc.) and may also provide relevant 
information that is not responsive to a particular question but may 
nevertheless be helpful.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) upon request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Program Authority:  20 U.S.C. 1413(f)(1) and 1418(d).

    Dated: June 16, 2014.
Michael K. Yudin,
Acting Assistant Secretary for Special Education and Rehabilitative 
Services.
[FR Doc. 2014-14388 Filed 6-18-14; 8:45 am]
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