[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92376-92464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30190]
[[Page 92375]]
Vol. 81
Monday,
No. 243
December 19, 2016
Part VIII
Department of Education
-----------------------------------------------------------------------
34 CFR Part 300
Assistance to States for the Education of Children With Disabilities;
Preschool Grants for Children With Disabilities; Final Rule
Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 /
Rules and Regulations
[[Page 92376]]
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Part 300
[Docket ID ED-2015-OSERS-0132]
RIN 1820-AB73
Assistance to States for the Education of Children With
Disabilities; Preschool Grants for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations under Part B of the
Individuals with Disabilities Education Act (IDEA) governing the
Assistance to States for the Education of Children with Disabilities
program and the Preschool Grants for Children with Disabilities
program. With the goal of promoting equity under IDEA, the regulations
will establish a standard methodology States must use to determine
whether significant disproportionality based on race and ethnicity is
occurring in the State and in its local educational agencies (LEAs);
clarify that States must address significant disproportionality in the
incidence, duration, and type of disciplinary actions, including
suspensions and expulsions, using the same statutory remedies required
to address significant disproportionality in the identification and
placement of children with disabilities; clarify requirements for the
review and revision of policies, practices, and procedures when
significant disproportionality is found; and require that LEAs identify
and address the factors contributing to significant disproportionality
as part of comprehensive coordinated early intervening services
(comprehensive CEIS) and allow these services for children from age 3
through grade 12, with and without disabilities.
DATES:
Effective Date: These regulations are effective January 18, 2017.
Compliance Date: Recipients of Federal financial assistance to
which these regulations apply must comply with these final regulations
by July 1, 2018, except that States are not required to include
children ages three through five in the calculations under Sec.
300.647(b)(3)(i) and (ii) until July 1, 2020.
FOR FURTHER INFORMATION CONTACT: Mary Louise Dirrigl, U.S. Department
of Education, 400 Maryland Avenue SW., Room 5156, Potomac Center Plaza,
Washington, DC 20202-2600. Telephone: (202) 245-7324.
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:
Executive Summary
Purpose of This Regulatory Action: The purpose of these final
regulations is to promote equity in IDEA. Specifically, the final
regulations will help to ensure that States meaningfully identify LEAs
with significant disproportionality and that States assist LEAs in
ensuring that children with disabilities are properly identified for
services, receive necessary services in the least restrictive
environment, and are not disproportionately removed from their
educational placements by disciplinary removals. These final
regulations also address the well-documented and detrimental over-
identification of certain students for special education services, with
particular concern that over-identification results in children being
placed in more restrictive environments and not taught to challenging
academic standards.
While these regulations only establish a system for identifying
significant disproportionality based on overrepresentation, the
regulations acknowledge that overrepresentation may be caused by under-
identification of one or more racial or ethnic groups and the
regulations allow funds reserved for comprehensive CEIS to be used to
address these issues if they are identified as a factor contributing to
the significant disproportionality. LEAs are legally obligated to
identify students with disabilities and provide the resources and
supports they need to have equal access to education. Thus we,
encourage States to ensure that the State's and LEAs' child find
policies, practices, and procedures are working effectively to identify
all children with disabilities, regardless of race or ethnicity.
IDEA requires States and local educational agencies (LEAs) to take
steps to determine the existence of and address significant
disproportionality in special education. The statute and regulations
for IDEA, Part B, include important provisions for how States and LEAs
must address significant disproportionality, including an examination
of significant disproportionality and remedies where findings of
significant disproportionality occur.
Under IDEA section 618(d) (20 U.S.C. 1418(d)) and Sec. 300.646,
States are required to collect and examine data to determine whether
significant disproportionality based on race or ethnicity is occurring
in the State and the LEAs of the State with respect to the
identification of children as children with disabilities, including
identification as children with particular impairments; the placement
of children in particular educational settings; and the incidence,
duration, and type of disciplinary actions, including suspensions and
expulsions. States must make this determination annually.
When a State educational agency (SEA) identifies LEAs with
significant disproportionality in one or more of these areas based on
the collection and examination of their data, States must: (1) Provide
for the review (and if appropriate) revision of the LEA's policies,
procedures, and practices for compliance with IDEA; (2) require the LEA
to reserve the maximum amount (15 percent) of its Part B funds to be
used for comprehensive coordinated early intervening services
(comprehensive CEIS) to serve children in the LEA, particularly, but
not exclusively, children in those groups that were significantly over-
identified; and (3) require the LEA to publicly report on the revision
of its policies, procedures, and practices. Under the statute and
regulations, each State has considerable discretion in how it defines
significant disproportionality.
To address and reduce significant disproportionality, the final
regulations establish a standard methodology that each State must use
in its annual determination under IDEA section 618(d) (20 U.S.C.
1418(d)) of whether significant disproportionality based on race and
ethnicity is occurring in the State and the LEAs of the State.
Further, the final regulations clarify ambiguities in the existing
regulations concerning significant disproportionality in the
disciplining of children with disabilities. Specifically, these
regulations adopt the Department's long-standing interpretation that
the required remedies in IDEA section 618(d)(2) apply when there is
significant disproportionality in identification, placement, or any
type of disciplinary removal from placement. In addition, funds
reserved for comprehensive CEIS now must be used to identify and
address the factors contributing to significant disproportionality and
may be used to serve children from age 3 through grade 12, with and
without disabilities.
[[Page 92377]]
Summary of Major Provisions of This Regulatory Action
Significant provisions of these final regulations include:
Sec. Sec. 300.646(b) and 300.647(a) and (b) provide the
standard methodology that States must use to determine whether there is
significant disproportionality based on race or ethnicity in the State
and its LEAs;
As part of the standard methodology, Sec. 300.647(b)(1)
requires States to set reasonable risk ratio thresholds, reasonable
minimum n-sizes, reasonable minimum cell sizes, and if a State uses the
flexibility described in Sec. 300.647(d)(2), standards for measuring
reasonable progress, all with input from stakeholders (including their
State Advisory Panels), subject to the Department's oversight;
Sec. 300.647(b)(1)(iv) sets a rebuttable presumption that
a minimum cell size of no greater than 10 and a minimum n-size of no
greater than 30 are reasonable.
Sec. 300.647(d) provides flexibilities that States, at
their discretion, may consider when determining whether significant
disproportionality exists. States may choose to identify an LEA as
having significant disproportionality after an LEA exceeds a risk ratio
threshold for up to three prior consecutive years. States may also
choose not to identify an LEA with significant disproportionality if
the LEA is making reasonable progress, as defined by the State, in
lowering risk ratios in each of the two consecutive prior years, even
if the risk ratios exceed the State's risk ratio thresholds;
Sec. 300.646(c) clarifies that the remedies in IDEA
section 618(d)(2) are triggered if a State makes a determination of
significant disproportionality with respect to disciplinary removals
from placement;
Sec. 300.646(c)(1) and (2) clarify that the review of
policies, practices, and procedures must occur in every year in which
an LEA is identified with significant disproportionality and that LEA
reporting of any revisions to policies, practices, and procedures must
be in compliance with the confidentiality provisions of the Family
Educational Rights and Privacy Act (FERPA), (20 U.S.C. 1232), its
implementing regulations in 34 CFR part 99, and IDEA section 618(b)(1);
and
Sec. 300.646(d) describes which populations of children
may receive comprehensive CEIS when an LEA has been identified with
significant disproportionality. Comprehensive CEIS may be provided to
children from age 3 through grade 12, regardless of whether they are
children with disabilities, and, as part of implementing comprehensive
CEIS, an LEA must identify and address the factors contributing to the
significant disproportionality.
Costs and Benefits: Due to the considerable discretion allowed
States (e.g. flexibility to determine their own reasonable risk ratio
thresholds, reasonable minimum n-sizes and cell size, and the extent to
which LEAs have made reasonable progress under Sec. 300.647(d)(2) in
lowering their risk ratios or alternate risk ratios, we cannot evaluate
the costs of implementing the final regulations with absolute
precision. However, we estimate the total cost of these regulations
over ten years would be between $50.1 and $91.4 million, plus transfers
between $298.4 and $552.9 million. These estimates assume discount
rates of three to seven percent.
There are several benefits of the regulations that include:
Increased transparency regarding each State's definition of significant
disproportionality; an increased role for State Advisory Panels in
determining States' risk ratio thresholds, minimum n-sizes, and minimum
cell sizes; and State review and, if appropriate, revision of the
policies, procedures, and practices used in the identification,
placement, or discipline of children with disabilities, to ensure that
the policies, procedures, and practices comply with the requirements of
IDEA; and, ultimately, better identification, placement, and discipline
of children with disabilities.
Additionally, the Department believes that expanding the
eligibility of children ages three through five to receive
comprehensive CEIS would give LEAs new flexibility to use additional
funds received under Part B of IDEA to provide appropriate services and
supports at earlier ages to children who might otherwise later be
identified as having a disability, which could reduce the need for more
extensive special education and related services for such children in
the future. The Department believes this regulatory action to
standardize the methodology States use to identify significant
disproportionality will provide clarity to the public, increase
comparability of data across States, and improve upon current policy,
which has resulted in State definitions which vary widely and may
prevent States from identifying the magnitude of racial and ethnic
overrepresentation in special education. We provide further detail
regarding costs and benefits in the Regulatory Impact Analysis section.
General
On March 2, 2016, the Secretary published a notice of proposed
rulemaking (NPRM) in the Federal Register (81 FR 10967) to amend the
regulations in 34 CFR part 300 governing the Assistance to States for
the Education of Children with Disabilities program and the Preschool
Grants for Children with Disabilities program. Specifically, in the
NPRM, we proposed changes to the regulation regarding significant
disproportionality based on race and ethnicity in the identification,
placement, and discipline of children with disabilities.
In the preamble of the NPRM, we discussed on pages 10980 and 10981
the major changes proposed in that document. These included the
following:
Adding Sec. Sec. 300.646(b) and 300.647(a) and (b) to
provide the standard methodology that States must use to determine
whether there is significant disproportionality based on race or
ethnicity in the State and its LEAs;
Adding Sec. 300.647(c) to provide the flexibilities that
States, at their discretion, may consider when determining whether
significant disproportionality exists. States may choose to identify an
LEA as having significant disproportionality after an LEA exceeds a
risk ratio threshold for up to three prior consecutive years. A State
also has the flexibility not to identify an LEA with significant
disproportionality if the LEA is making reasonable progress under Sec.
300.647(d)(2) in lowering the risk ratios, even if they exceed the
State's risk ratio thresholds, where reasonable progress is defined by
the State;
Amending current Sec. 300.646(b) (proposed Sec.
300.646(c)) to clarify that the remedies in IDEA section 618(d)(2) are
triggered if a State makes a determination of significant
disproportionality with respect to disciplinary removals from
placement;
Amending current Sec. 300.646(b)(1) and (3) (proposed
Sec. 300.646(c)(1) and (2)) to clarify that the review of policies,
practices, and procedures must occur in every year in which an LEA is
identified with significant disproportionality, and that LEA reporting
of any revisions to policies, practices, and procedures must be in
compliance with the confidentiality provisions of the Family
Educational Rights and Privacy Act (FERPA), (20 U.S.C. 1232), its
implementing regulations in 34 CFR part 99, and IDEA section 618(b)(1);
and
Amending current Sec. 300.646(b)(2) (proposed Sec.
300.646(d)) to define which
[[Page 92378]]
populations of children may receive comprehensive CEIS when an LEA has
been identified with significant disproportionality. Comprehensive CEIS
may be provided to children from age 3 through grade 12, regardless of
whether they are children with disabilities, and, as part of
implementing comprehensive CEIS, an LEA must identify and address the
factors contributing to the significant disproportionality.
These final regulations contain several significant changes from
the NPRM, including:
A revised Sec. 300.646(d)(1)(ii) to include additional
factors that may contribute to significant disproportionality;
A new Sec. 300.646(d)(1)(iii) to clarify that in
implementing comprehensive CEIS an LEA must address a policy, practice,
or procedure it identifies as contributing to significant
disproportionality;
A new Sec. 300.646(e) to clarify that LEAs that serve
only children with disabilities are not required to reserve IDEA Part B
funds for comprehensive CEIS;
A new Sec. 300.646(f) to make clear that these
regulations do not authorize a State or an LEA to develop or implement
policies, practices, or procedures that result in actions that violate
any IDEA requirements, including requirements related to child find and
ensuring that a free appropriate public education is available to all
eligible children with disabilities.
A revised Sec. 300.647(a) to include a definition of
comparison group, minimum n-size, and minimum cell size;
A revised Sec. 300.647(b)(1) to require States to set
reasonable risk ratio thresholds, reasonable minimum cell sizes,
reasonable minimum n-sizes, and, if a State is using the flexibility in
Sec. 300.647(d)(2), standards for measuring reasonable progress, all
with input from stakeholders (including their State Advisory Panels)
and subject to the Department's oversight. As revised, Sec.
300.647(b)(1) also clarifies that a State may, but is not required to,
set these standards at different levels for each of the categories
described in paragraphs (b)(3) and (4);
States may delay the inclusion of children ages three
through five in the review of significant disproportionality with
respect to the identification of children as children with
disabilities, and with respect to the identification of children as
children with a particular impairment, until July 1, 2020;
A revision of Sec. 300.647(b)(4) to no longer require
States to calculate the risk ratio for children with disabilities ages
6 through 21, inside a regular class more than 40 percent of the day
and less than 79 percent of the day;
An amendment to Sec. 300.647(b)(5) to require States to
use the alternate risk ratio when the number of children in the
comparison group fails to meet either the State's reasonable minimum n-
sizes or the State's reasonable minimum cell sizes;
A new Sec. 300.647(b)(7) requiring States to report all
risk ratio thresholds, minimum cell sizes, minimum n-sizes, standards
for measuring reasonable progress, and the rationales for each, to the
Department at a time and in a manner determined by the Secretary.
Rationales for minimum cell sizes and minimum n-sizes must include a
detailed explanation of why the numbers are reasonable and how they
ensure appropriate analysis for significant disproportionality.
A new Sec. 300.647(c) to clarify that States are not
required to calculate a risk ratio or alternate risk ratio if the
particular racial or ethnic group being analyzed does not meet the
minimum n-size or minimum cell size, or in calculating the alternate
risk ratio under Sec. 300.647(b)(5), the comparison group in the State
does not meet the minimum cell size or minimum n-size; and
A revision to proposed Sec. 300.647(c)(2)--now Sec.
300.647(d)(2)--to allow States the flexibility to not identify an LEA
that exceeds a risk ratio threshold if it makes reasonable progress
under Sec. 300.647(d)(2) in lowering the applicable risk ratio or
alternate risk ratio in each of two consecutive prior years.
We fully explain these changes in the Analysis of Comments and
Changes elsewhere in this preamble.
Effective Date of These Regulations
As noted in the Dates section, these regulations become part of the
Code of Federal Regulations on January 18, 2017. However, States and
LEAs are not required to comply with these regulations until July 1,
2018, or to include children ages three through five in the review of
significant disproportionality with respect both to the identification
of children as children with disabilities and to the identification of
children as children with a particular impairment, until July 1, 2020.
The Department recognizes the practical necessity of allowing
States time to plan for implementing these final regulations, including
to the extent necessary, time to amend the policies and procedures
necessary to comply. States will need time to develop the policies and
procedures necessary to implement the standard methodology in Sec.
300.647 and the revised remedies in Sec. 300.646(c) and (d). In
particular, States must consult with their stakeholders and State
Advisory Panels under Sec. 300.647(b)(1) to develop reasonable risk
ratio thresholds, reasonable minimum n-sizes, reasonable minimum cell
sizes, and if a State uses the flexibility in Sec. 300.647(d)(2),
standards for measuring reasonable progress. States must also determine
which, if any, of the available flexibilities they will adopt. To the
extent States need to amend their policies and procedures to comply
with these regulations, States will also need time to conduct public
hearings, ensure adequate notice of those hearings and provide an
opportunity for public comment, as required by Sec. 300.165.
Accordingly, States must implement the standard methodology under
Sec. 300.647 in school year (SY) 2018-19. In doing so, States must
identify LEAs with significant disproportionality under Sec.
300.647(d)(1) in SY 2018-2019 using, at most, data from the three most
recent school years for which data are available. We note that, in the
case of discipline, States may be using data from four school years
prior to the current year, as data from the immediate preceding school
year may not yet be available at the time the State is making its
determinations (i.e., final discipline data from SY 2017-2018 may not
yet be available at the time during SY 2018-2019 the State is
calculating risk ratios).
In SY 2018-2019, States must implement the standard methodology
contained in these regulations by ensuring that the identification of
any LEAs with significant disproportionality based on race and
ethnicity in the identification, placement, or disciplinary removal of
children with disabilities, is based on the standard methodology in
Sec. 300.647, and implements the revised remedies in accordance with
Sec. 300.646(c) and (d). In the spring of 2020, therefore, States will
report (via IDEA Part B LEA Maintenance of Effort (MOE) Reduction and
CEIS data collection, OMB Control No. 1820-0689) whether each LEA was
required to reserve 15 percent of its IDEA Part B funds for
comprehensive CEIS in SY 2018-19.
States may, at their option, accelerate this timetable by one full
year. In other words, States may implement the standard methodology in
SY 2017-18 and assess LEAs for significant disproportionality using
data from up to the most recent three consecutive school years for
which data are available.
States that choose to implement the standard methodology in Sec.
300.647 to
[[Page 92379]]
identify LEAs with significant disproportionality in SY 2017-2018 may
also require those LEAs to implement the revised remedies in accordance
with Sec. 300.646(c) and (d). Similarly, in SY 2017-18, States may
choose to implement the revised remedies without implementing the
standard methodology.
Whether a State begins compliance in SY 2017-2018 or 2018-2019, it
need not include children ages three through five in the review of
significant disproportionality, with respect to both the identification
of children as children with disabilities and to the identification of
children as children with a particular impairment, until July 1, 2020.
Finally, the delayed compliance date does not mean that States are
excused from making annual determinations of significant
disproportionality in the intervening years. States must still make
these determinations in accordance with the current text of Sec.
300.646.
Public Comment: In response to our invitation in the NPRM, 316
parties submitted comments on the proposed regulations. We group major
issues according to subject under these headings:
I. General Comments
Introduction
Glossary of Terms
Terminology
The Department Should Await Congressional Action
Under-Identification of Children With Disabilities by Race and
Ethnicity
Recommendations Regarding Technical Assistance and Guidance
Causes of Racial and Ethnic Disparity That Originate Outside of
School
Causes of Racial and Ethnic Disparities That Originate in School
Proposed Regulations Would Create Racial Quotas
The Purpose of the Proposed Regulations
The Cost and Burden of the Regulations
Evaluating the Impact of the Regulation
Reporting Requirements
Additional State and Local Standards
Noncompliance With IDEA
General Opposition to the Regulation
Comments on the Racial and Ethnic Disparities Report
Timeline and Effective Date of the Regulation
Appropriate Placement of Children With Disabilities
Special Education, Generally
Results-Driven Accountability
II. A Standard Methodology for Determining Significant
Disproportionality (Sec. 300.647)
General
Risk Ratios (Sec. 300.646(b); Sec. 300.647(a)(2); Sec.
300.647(a)(3); Sec. 300.647(b))
Categories of Analysis (Sec. 300.647(b)(3) and (4))
Risk Ratio Thresholds (Sec. 300.647(a)(7); Sec. 300.647(b)(1)
and(2); Sec. 300.647(b)(6)
Minimum Cell Sizes and Minimum N-Sizes (Sec. 300.647(a)(3) and
(4); Sec. 300.647(b)(1)(i)(B) and (C); Sec. 300.647(b)(3) and (4);
Sec. 300.647(c)(1))
Alternate Risk Ratios (Sec. 300.647(a)(1); Sec. 300.647(b)(5);
Sec. 300.647(c)(2))
Flexibilities--Three Consecutive Years of Data, Sec.
300.647(d)(1)
Flexibilities--Reasonable Progress, Sec. 300.647(d)(2)
III. Clarification that Statutory Remedies Apply to Disciplinary
Actions (Sec. 300.646(a)(3) and (c))
IV. Clarification of the Review and Revision of Policies, Practices,
and Procedures (Sec. 300.646(c))
Review of Policies, Practices, and Procedures--Requirements
Guidance
Clarifications
V. Expanding the Scope of Comprehensive Coordinated Early
Intervening Services (Sec. 300.646(d))
Use of Comprehensive CEIS for Specific Populations
Funding Comprehensive CEIS
Implications for IEPs
Implications for LEA Maintenance of Effort (MOE)
General Uses of Comprehensive CEIS Funds
Implications for Voluntary Implementation of CEIS
Miscellany
Analysis of Comments and Changes: An analysis of the comments and
of any changes in the regulations since publication of the NPRM
follows. Generally, we do not address: (a) Minor changes, including
technical changes made to the language published in the NPRM; or (b)
comments that express concerns of a general nature about the U.S.
Department of Education (Department) or other matters that are not
germane.
I. General Comments
Introduction
We provide a glossary as an aid to reading and understanding the
technical discussions surrounding a standard methodology for
determining significant disproportionality. Some terms in this glossary
are defined in these final regulations.
Glossary of Terms
Alternate Risk Ratio means a calculation performed by dividing the
risk of a particular outcome for children in one racial or ethnic group
within an LEA by the risk of that outcome for children in all other
racial or ethnic groups in the State. (Sec. 300.647(a)).
Cell Size means the number of children experiencing of a particular
outcome, to be used as the numerator when calculating either the risk
for a particular racial or ethnic group or the risk for children in all
other racial or ethnic groups.
Comparison Group consists of the children in all other racial or
ethnic groups within an LEA or within the State, when reviewing a
particular racial or ethnic group within an LEA for significant
disproportionality.
N-Size means the number of children enrolled in an LEA with respect
to identification, and the number of children with disabilities
enrolled in an LEA with respect to placement and discipline, to be used
as the denominator when calculating either the risk for a particular
racial or ethnic group or the risk for children in all other racial or
ethnic groups.
Population Requirement means the minimum number of children
required before a racial or ethnic group within an LEA will be reviewed
for significant disproportionality, such as a minimum cell size or
minimum n-size.
Risk means the likelihood of a particular outcome (identification,
placement, or disciplinary removal) for a specified racial or ethnic
group (or groups), calculated by dividing the number of children from a
specified racial or ethnic group (or groups) experiencing that outcome
by the total number of children from that racial or ethnic group (or
groups) enrolled in the LEA. (Sec. 300.647(a)).
Risk Ratio means a calculation performed by dividing the risk of a
particular outcome for children in one racial or ethnic group within an
LEA by the risk for children in all other racial and ethnic groups
within the LEA. (Sec. 300.647(a)).
Risk Ratio Threshold means a threshold, determined by the State,
over which disproportionality based on race or ethnicity is significant
under Sec. 300.646(a) and (b). (Sec. 300.647(a)).
Weighted Risk Ratio means a variation on the risk ratio in which
the risk to each racial and ethnic group within the comparison group is
multiplied by a weight that reflects that group's proportionate
representation within the State.
Terminology
Comment: None.
Discussion: In the NPRM, the Department noted that many States have
minimum cell size requirements to restrict their assessment of
significant disproportionality to include only those LEAs that have
sufficient numbers of children to generate stable calculations. The
Department further noted that, while different States use different
definitions of ``minimum cell size,'' the most common definition placed
a requirement on the number of children with disabilities in the racial
or ethnic subgroup being analyzed. This common
[[Page 92380]]
definition describes the population used in the denominator when
calculating the risk of placement or disciplinary removal for a racial
or ethnic group.
Based on this information, the Department used the term ``minimum
cell size'' in its description of proposed Sec. 300.647(b)(3) and (4),
in which we intended to allow States not to apply the standard
methodology when analyzing for significant disproportionality with
respect to identification when a racial or ethnic group in an LEA had
fewer than 10 children (or, when analyzing for placement or discipline,
when a racial or ethnic group in an LEA had fewer than 10 children with
disabilities). Put another way, it was the Department's intent to allow
States not to apply the standard methodology when, in calculating the
risk of identification, placement, or discipline for a racial or ethnic
group, the denominator of the risk calculation included fewer than 10
children.
In response to the NPRM, many commenters raised concerns about the
effects of particularly small groups of children on the calculation of
risk for particular racial or ethnic groups and the benefits and
drawbacks of setting a minimum number of children for either the
numerator or denominator in the risk calculation. Upon review of these
comments, the Department determined that using a single term (i.e.,
``minimum cell size'') to refer to both of these requirements would be
potentially confusing. Therefore, in this NFR, the Department uses the
term ``n-size'' to refer to the denominator of a risk calculation and
``cell size'' to refer to the numerator of the risk calculation. We
note that this use of terms is different than what was used in the
NPRM, but we believe this differentiation will provide the greatest
clarity in our discussion of the requirements of the final rule.
Consistent with this approach, we have interpreted comments
regarding the proposed Sec. 300.647(b)(3) and (4), and comments
regarding risk denominators, to be referring to n-size, and refer to
those comments using that terminology. Further, we have interpreted
comments regarding risk numerators to be referring to cell size, and
refer to those comments using that terminology.
Change: We have revised proposed Sec. 300.647 to include
definitions for the terms ``minimum cell size'' and ``minimum n-size''
and have utilized those terms through the regulation to increase
specificity and clarity.
The Department Should Await Congressional Action
Comments: Some commenters argued that the Department should
withdraw the proposed rule and first allow Congress to address
significant disproportionality in the next reauthorization of IDEA.
Discussion: The Department has an obligation to implement and
enforce the requirements of IDEA as they exist today. While we will
work with Congress to reauthorize IDEA, including any potential changes
to section 618(d), we must continue to ensure that States and LEAs are
appropriately implementing the current requirements to ensure that
every child has access to a free appropriate public education in the
least restrictive environment. As we have stated in the NPRM, following
the Government Accountability Office (GAO) report, the Department
conducted its own review of State approaches, as well as a review of
the extent to which States identified significant disproportionality.
Additionally, we examined research related to significant
disproportionality and analyzed data collected under section 618 of
IDEA.
The Department's analysis found several nationwide examples of
disparity across racial and ethnic groups. For example in 2012:
American Indian and Alaska Native students were 60 percent more likely
to be identified for an intellectual disability, while Black children
were more than twice as likely as other groups to be so identified.
Similarly, American Indian or Alaska Native students were 90 percent
more likely, Black students were 50 percent more likely, and Hispanic
students were 40 percent more likely to be identified as a student with
a learning disability. In addition, Black children were more than twice
as likely to be identified with an emotional disturbance. These
national-level data are troubling, given the number of States that have
not identified any LEAs with significant disproportionality.
As published in the NPRM, in SY 2012-13, only 28 States and the
District of Columbia identified any LEA with significant
disproportionality, and of the 491 LEAs identified, 75 percent were
located in only seven States. Of the States that identified LEAs with
significant disproportionality, only the District of Columbia and four
States identified significant disproportionality in all three
categories of analysis--identification, placement, and in discipline.
In short, these data suggest that there are likely LEAs that are not,
but should be, identified with significant disproportionality, and thus
that many children in these districts are not receiving proper
services.
The Department's decision now to require States to follow a
standard methodology is intended to promote consistency between States
and to help ensure compliance with IDEA section 618(d). We are adopting
the standard methodology to ensure proper implementation of the statute
and so that LEAs with significant disparities, based on race and
ethnicity, in identification, placement and discipline are
appropriately identified; that significant disproportionality is
appropriately addressed; and that children with and without
disabilities receive the services they need.
Changes: None.
Under-Identification of Children With Disabilities by Race and
Ethnicity
Comments: Several commenters responded to Directed Question #11 and
expressed various concerns about under-identification. Other commenters
did the same independently of the question. Several commenters
expressed support for the Department's efforts to remediate the
problems of overrepresentation and over-identification of children with
disabilities based on race and ethnicity.\1\ However, other commenters,
some citing research, asserted that the under-identification of
children of color for special education and related services is a
greater and more serious problem than their overrepresentation in
special education, and that, by not addressing the proper problem, the
proposed regulations would allow harm to children of color to continue.
One commenter stated that lawyers around the country have noted a
systemic neglect of children of color with disabilities in education
systems, and another stated that many families have reported delays in
the identification of disabilities and, in some cases, the
misidentification of disabilities. Still other commenters shared
personal experiences of under-identification. Two commenters stated
that the proposed regulations should be withdrawn and revised to
address this more pressing problem, and one suggested that the
Department withdraw the regulation in favor of other efforts to promote
the proper implementation of
[[Page 92381]]
child find procedures and the early and appropriate identification of
children with disabilities.
---------------------------------------------------------------------------
\1\ We distinguish ``overrepresentation'' and
``underrepresentation,'' which describe disparities in the relative
proportion of a racial or ethnic subgroup in special education and
their relative proportion in the population, from ``over-
identification'' and ``under-identification,'' which describe the
appropriateness of a child's identification as a child with a
disability.
---------------------------------------------------------------------------
Discussion: The Department agrees that when under-identification of
children of color occurs it is problematic. These children, like all
children with disabilities, are entitled to a free appropriate public
education. States should ensure that their child find procedures are
robust enough to appropriately identify all children with disabilities
in a timely manner.
The Department's long-standing interpretation of IDEA section
618(d) (20 U.S.C. 1418(d)), has been that it requires States to address
overrepresentation, not under-identification or underrepresentation,
consistent with the intent of Congress when it authorized that
provision. (See, Office of Special Education Programs (OSEP) Memorandum
08-09 (July 28, 2008)).
The basis for congressional action was largely due to a concern
that students of color were being identified too often for special
education services, and placed too frequently in segregated settings,
in ways that were detrimental to their education. There is also an
increased understanding that appropriate identification and delivery of
special education services would ensure that students with disabilities
have access to, and an opportunity to fully participate in, the general
education curriculum.
We understand that overrepresentation of one racial or ethnic group
that rises to the level of significant disproportionality may occur for
a variety of reasons, including over-identification of that racial or
ethnic group, under-identification of another racial or ethnic group or
groups, or appropriate identification with higher prevalence of a
disability in a particular racial or ethnic group.
For example, consider an LEA in which the risk ratio for African
American students with an emotional disturbance exceeds the State
determined risk ratio threshold and is identified as having significant
disproportionality. The overrepresentation of African American students
could be due to: (1) The LEA inappropriately identifying African
American students as having an emotional disturbance and needing
special education and related services even though they do not (over-
identification); (2) the LEA failing to appropriately identify students
in other racial or ethnic groups as having an emotional disturbance and
needing special education and related even though they do (under-
identification); or (3) the LEA appropriately identifying all students
in the LEA who have an emotional disturbance but underlying variations
in the prevalence of those disabilities across racial and ethnic groups
results in an overrepresentation of African American students.
We encourage States and LEAs to consider multiple sources of data
when attempting to determine the factors contributing to significant
disproportionality, including school level data, academic achievement
data, relevant environmental data that may be correlated with the
prevalence of a disability, or other data relevant to the educational
needs and circumstances of the specific group of students identified.
Changes: We have added a new Sec. 300.646(d)(1)(iii), requiring an
LEA, in implementing comprehensive CEIS, to address any policy,
practice, or procedure it identifies as contributing to significant
disproportionality, including any policy, practice or procedure that
results in a failure to identify, or the inappropriate identification
of, a racial or ethnic group (or groups).
Comments: Several commenters requested that the Department address
both over-identification and under-identification based on race and
ethnicity in special education. These commenters recommended that the
Department require States to report racial and ethnic disparities in
the identification of children with disabilities, and children with
particular impairments, due to under-identification. These commenters
also requested that the Department require States to provide technical
assistance to LEAs with under-identification, by race or ethnicity, but
not require those LEAs to implement the statutory remedies under IDEA
section 618(d).
Similarly, one commenter asked the Department to amend proposed
Sec. 300.646(c)(1) to clarify that, in cases of significant
disproportionality in the over-identification or the under-
identification of children as children with disabilities, an LEA must
undergo a review and, if necessary, revision of its policies,
practices, and procedures.
One commenter suggested that addressing both over-identification
and under-identification was particularly important in the context of
autism and emotional disturbance identification. The commenter further
observed that these are both areas where recent research has suggested
that girls in particular are under-identified.
A few commenters, however, opposed any expansion of the proposed
regulations to address under-identification due to concerns that this
will weaken their ability to address overrepresentation. One of these
commenters stated that, when the Department previously required States
to address under-identification by race and ethnicity as part of the
State Performance Plan/Annual Performance Report (SPP/APR), the result
was confusion among States.
Discussion: As we stated earlier, while this regulation only
establishes a system for identifying significant disproportionality
based on overrepresentation, nothing in these regulations prevents
States from working with their LEAs to ensure appropriate
identification of children with disabilities and address any potential
under-identification that may exist. In cases where LEAs find that a
factor contributing to the overrepresentation of one racial or ethnic
group is the under-identification of a different racial or ethnic
group, the LEA may use funds reserved for comprehensive CEIS to address
that under-identification. In particular, we remind States that,
consistent with IDEA child find requirements, each State must have
policies and procedures to ensure that all children residing in the
State who are in need of special education and related services are
identified, located, and evaluated, regardless of race or ethnicity.
We also note that nothing in these regulations establishes or
authorizes the use of racial or ethnic quotas limiting a child's access
to special education and related services, nor do they restrict the
ability of Individualized Education Program (IEP) Teams or others to
appropriately identify and place children with disabilities. In fact,
an LEA's use of quotas to artificially reduce the number of children
who are identified as having a disability, in an effort to avoid a
finding of significant disproportionality, would almost certainly
conflict with their obligations to comply with other Federal statutes,
including civil rights laws governing equal access to education. States
have an obligation under IDEA both to identify significant
disproportionality, based on race and ethnicity, in the identification
of children with disabilities and to ensure that LEAs implement child
find procedures appropriately and make a free appropriate public
education available to all eligible children with disabilities. (20
U.S.C. 1412(a)(1), (3) and (11); 34 CFR 300.101, 300.111, and 300.149).
To clarify that these regulations must be implemented in a manner that
is consistent with all other requirements of this part, we have added
Sec. 300.646(f) to make clear that these regulations do not authorize
a State or an LEA to develop or implement policies, practices, or
[[Page 92382]]
procedures that result in actions that violate any IDEA requirements,
including requirements related to child find and ensuring that a free
appropriate public education is available to all eligible children with
disabilities.
Changes: As described above, we have added a new Sec. 300.646(f).
Comment: One commenter recommended that the Department address the
under-identification of children with disabilities by supporting States
and LEAs in collecting child-level data on developmental screenings and
referrals for services to better understand where child find efforts
are effective.
Discussion: We appreciate the commenter's proposal to expand
awareness and understanding of child find implementation, and of the
potential under-identification of children with disabilities, through
better data collection. The Department is committed to ensuring that
all children with disabilities are appropriately identified, evaluated,
and provided with special education services. However, we believe that
any requirement to collect data regarding developmental screenings and
referrals would be beyond the scope of IDEA section 618(d), which
directs States to collect and examine data for the purpose of
identifying significant disproportionality by race and ethnicity. We
believe it is more appropriate to consider the merits of the
commenter's proposal separately from regulation.
Changes: None.
Comments: Several commenters requested that the proposed
regulations be withdrawn until there is more research available
regarding under-identification and over-identification in special
education, including better information as to whether over-
identification or under-identification is the more pressing problem.
Similarly, one commenter stated that the regulations were based on a
flawed understanding of research on racial and ethnic disparities in
special education.
One other commenter asserted that the research that the Department
is using to justify its current regulations to address significant
disproportionality has been repeatedly identified as having serious
methodological limitations, including a lack of statistical controls
for known confounds.
Discussion: The Department agrees that there is a continued need
for research to support Federal, State, and local efforts to address
racial and ethnic disparities in special education, though we do not
agree that the research we relied upon is flawed. We also agree that
additional research is necessary to continue to examine both over- and
under-representation in special education, and the Department plans to
direct additional resources to research these issues. However, we do
not agree that these regulations should be delayed until further
research is conducted because there is sufficient evidence of
significant disproportionalities going uninvestigated or unaddressed.
We also agree that some research suggests that there are children
with disabilities who are not, but should be, receiving special
education services under IDEA. However, there is a corresponding body
of research that children of certain races or ethnicities are
disproportionately identified with disabilities, educated in more
restrictive placements, and disciplined at greater rates than their
peers. We do not believe that over- and under-representation in special
education based on race or ethnicity are mutually exclusive. In fact,
it is possible, if not probable, that both over- and under-
representation are occurring, which is why the Department's effort to
standardize the way in which States examine LEAs for significant
disproportionality is necessary.
The Department believes that Sec. 300.646(b), which requires
States to apply a standard methodology to identify significant
disproportionality due to overrepresentation, will help to build
greater knowledge about existing State practice and the extent of these
disparities and encourage additional research to investigate their
causes and potential solutions for them. That said, States are required
to ensure that they are appropriately implementing these new
regulations in conjunction with appropriate child find procedures.
These regulations should not be used to exclude children with
disabilities from receiving services under IDEA.
Changes: None.
Recommendations Regarding Technical Assistance and Guidance
Comment: A number of commenters called upon the Department to
provide to States and LEAs technical assistance and guidance for
implementing the proposed regulations. Some commenters asserted that
the Department should provide technical assistance to States in order
to ensure that LEAs appropriately identify children of color, rather
than under-identifying them, to avoid a designation of significant
disproportionality. In the absence of sufficient supports for LEAs, the
commenters stated, LEAs may implement shortcuts so that they appear to
be reducing disparities. These shortcuts could include under-reporting
of disciplinary removals, under-identifying children of color as
children with disabilities, or referring fewer children from
overrepresented racial or ethnic groups for special education services.
Similarly, another commenter stated that the Department could ensure
that LEAs do not under-identify children with disabilities by
supporting States' efforts to utilize appropriate cell sizes, risk
ratio thresholds, and significance testing.
Other commenters recommended that the Department provide
suggestions to States about evidence-based practices that may reduce
disproportionality and that the Department tailor technical assistance
to the needs of the agencies served.
One commenter suggested that the Department provide specific
information on evaluation and identification of children who may need
special education, the use of schoolwide approaches such as positive
behavioral interventions and supports, developing multi-tiered systems
of support to provide intensive services before referral to special
education, and the use of multi-disciplinary teams of specialized
instructional support personnel to support children with and without
disabilities. Another commenter also requested that the Department
provide research-based root cause analysis tools, targeted to each of
the areas of significant disproportionality, as well as assistance with
cultural responsive evaluation, appropriate academic and behavioral
interventions prior to referral for special education services, and the
monitoring of highly mobile children within a multi-tiered system of
support.
One commenter recommended that the Department provide guidance that
indicates how LEAs can compare the number of children identified,
placed, or disciplined to the number of children who should have been
identified, placed, or disciplined and how best to use risk ratio
methods with small populations.
One commenter requested that the Department provide guidance on,
monitor, and enforce IDEA provisions governing evaluation procedures
and encourage States to implement school-age hearing screening programs
as part of their implementation of child find.
One commenter recommended that the Department provide more
technical assistance and guidance on the importance of health care
providers in helping identify all children with disabilities.
Other commenters suggested that the Department enhance State
capacity to train and counsel parents about IDEA,
[[Page 92383]]
disability, and the implications when a child is found eligible for
special education and related services.
Discussion: We agree that supporting States and LEAs in
implementing these regulations is important. The Department provides
technical assistance through numerous investments funded under part D
of IDEA, and it provides easy access to information from its research
to practice efforts at www.osepideasthatwork.org. In general, the
Department funds technical assistance centers to work with States and
LEAs to provide a variety of products and services to support children
with disabilities, teachers, special education service providers,
policy makers, and parents of children with disabilities with the
implementation of IDEA requirements, including those provisions and
activities required to address significant disproportionality based on
race or ethnicity. We agree with commenters that there are many
distinct but overlapping provisions under IDEA that will need to be
addressed to help States and their stakeholders comply with the
requirements of these regulations. The Department will continue to
provide technical assistance to help States and stakeholders address
significant disproportionality based on race or ethnicity. In addition,
the Department plans to identify new Federal resources to support
States' work to implement these regulations through the Technical
Assistance and Dissemination network and Department staff. When these
resources are available, the Department will work to ensure that States
are aware of Federal technical assistance resources that can be used to
support their implementation of these regulations.
Changes: None.
Comment: One commenter requested that the Department issue guidance
to States on monitoring and analyzing LEA placement data with regard to
disability category, gender, ethnicity, and socioeconomic status to
help create transparency in decision-making that results in LEA-level
disparities.
Discussion: We appreciate the suggestion and will take it into
consideration as we develop guidance and technical assistance for these
regulations after they are published. Changes: None.
Causes of Racial and Ethnic Disparity That Originate Outside of School
Comments: Several commenters stated that the proposed regulations
are based on a flawed assumption, that the percentage of children of
color with disabilities who receive special education and related
services should reflect the percentage of children of color in the
general population. Other commenters asserted that one should expect
certain subgroups of children to be identified with disabilities (or
particular impairments) at higher rates than others due to the effects
of poverty, concentrated poverty, poor education, lack of adequate
health care parental incarceration, limited language proficiency, drug
abuse, environmental toxins, the lack of specialized instructional
support or parent training, and other factors that (according to the
commenters) increase the risk of disabilities and the need for special
education services. Others asserted that achieving proportionality
among all races and ethnicities in special education is not an
appropriate goal, and that the statistical assumption of equal rates of
identification across all groups is erroneous.
Discussion: The Department recognizes that there will be variations
in the proportion of individuals across racial and ethnic groups who
are identified as children with disabilities. The purpose of these
regulations is not to artificially force the identification rate to be
equal across all subgroups or to fit any preconceived proportion. The
regulation does, however, seek to promote more accurate identification
of LEAs in which disproportionality between racial and ethnic groups
has become significant and, therefore, possibly indicative of an
underlying problem in the identification, placement, or disciplinary
removal of children with disabilities.
While various risk factors associated with poverty may be
associated with greater risk of disability among children, those
factors are by no means determinative of whether a child should be
identified as a child with a disability under IDEA. Ideally, children
exposed to these risk factors are screened for developmental delays,
and other academic and behavioral challenges, so that their needs may
be addressed early and appropriately. Further, IDEA requires that the
individual needs of children with disabilities--as opposed to their
exposure to risk--be central to determining the need for special
education and related services.
Changes: None.
Comment: Many commenters stated that risk factors--such as poverty,
concentrated poverty, poor education, and lack of access to health
care--contribute to the incidence of disability and may confound
attempts to effectively examine racial and ethnic disparity in special
education. Similarly, one commenter suggested that recent increases in
K-12 enrollment, the number of English Learners, and the prevalence of
poverty may account for increases in the number of children of color in
special education.
In this same context, a few other commenters warned that a simple
comparison of percentages of populations must not be taken as evidence
of bias, misidentification, or racial discrimination by school
officials. Rather, these commenters argued that approaches such as the
risk ratio are oversimplifications that may lead to the withdrawal or
denial of special education services to children who need them.
Similarly, another commenter stated that there are situations where a
risk ratio alone will not provide enough information to determine
whether an LEA has or does not have significant disproportionality.
Discussion: The Department understands that there are many complex
factors that may influence the need for special education services,
placement decisions, and disciplinary removals, and that schools alone
cannot address all of these factors, particularly those associated with
poverty. The Department also understands that risk ratios do not
identify the causes of significant disproportionality.
However, risk ratios do identify those LEAs where there are large
racial and ethnic disparities and, where these are considered
significant, States and LEAs must review the policies, procedures, and
practices related to identification, placement, or discipline and,
through the implementation of comprehensive coordinated early
intervening services, identify and address the causes of these
disparities, as appropriate. Even in situations where differential
exposure to risk factors contributes to racial disparities in special
education, we believe that schools may help to mitigate the effects of
these risk factors by screening children early and by providing early
and appropriate interventions and supports. Donovan and Cross, 2002.
This is a major purpose of comprehensive CEIS, and one reason, as we
discuss in the section Expanding the Scope of Comprehensive Coordinated
Early Intervening Services, that the Department has expanded the scope
of comprehensive CEIS to include children ages three through five.
Changes: None.
Comments: Many commenters expressed concern that the Department's
overall approach to addressing significant disproportionality, as well
as the standard methodology in Sec. 300.647(b), fails to address the
underlying causes of racial and ethnic disparities. A large number of
commenters noted that there are many
[[Page 92384]]
societal and systemic factors that lead to disproportionality. These
commenters argued that final regulations should be postponed until
these other societal and systemic factors, such as access to mental
health care and access to quality early-childhood education, are
addressed. Another commenter argued that the issue of significant
disproportionality is beyond the responsibility of educators and beyond
the scope of their role, and efforts to identify and address it must
take into account factors such as poverty, urbanicity, medical care
accessibility, and the presence of schools specifically for children
with disabilities.
One commenter requested that--once these broad societal and
educational problems are addressed--States only report on special
education indicators (which we understand the commenter to mean data
showing racial and ethnic disparities, similar to what was proposed
under Sec. 300.646(b)(3) and (4)) until systems are in place to hold
general education accountable as well. Similarly, other commenters
asserted that as special education programs typically have little
influence over general education programs, it will be difficult to
improve services using a mandate on special education.
Discussion: The Department recognizes that racial and ethnic
disparities in the identification, placement, and discipline of
children with disabilities can have a wide range of causes, including
systemic issues well beyond the typical purview of most LEAs. Again,
however, this does not mean that LEAs, schools, and educators are
wholly incapable of addressing, or mitigating, any of the causes of
significant disproportionality. In fact, the Department believes that
effective elementary and secondary education, with appropriate supports
for children with and without disabilities is essential to addressing
the very issues the commenters raise. Delaying the examination of data
to make determinations of significant disproportionality (and the
review and revision of problematic policies, practices, and procedures)
until these broader issues are resolved would overlook both the
statutory requirement that States annually collect and examine data and
strategies currently available to address these inequities.
The commenters' concerns about holding general education
accountable suggest a false dichotomy between special and general
education. That is, LEAs are responsible for providing a high quality
education to every child, both in general education and special
education. When children are inappropriately identified, placed, or
disciplined on the basis of race or ethnicity, all parties are, and
should be, held accountable. In fact, this realization of the benefits
of a holistic approach to addressing the causes of significant
disproportionality led to the Department's expansion of comprehensive
CEIS to serve both children with and without disabilities.
Changes: None.
Comment: One commenter suggested that the Department develop
funding priorities to examine the connections between race, culture,
socio-economic status, and disability. Many commenters noted that
additional Federal funds should be made available to address
disproportionality in special education and general education programs.
Discussion: Although we view this as beyond the scope of these
regulations, we appreciate the suggestion. The Department will take
this recommendation under consideration as we develop funding
priorities for fiscal years 2017 and 2018.
Changes: None.
Causes of Racial and Ethnic Disparities That Originate in School
Comments: Several commenters asserted that disproportionality in
special education occurs due to children not receiving the necessary
interventions early in their academic career. Disproportionality,
according to the commenters, must be addressed in the regular
educational environment and earlier in the school process, with
administrators responsible for title I programs as partners, and cannot
be addressed once children have been referred for evaluation for
special education.
Discussion: The Department believes that these regulations address
the commenters' concerns. Under Sec. 300.646(d)(3), LEAs identified
with significant disproportionality may use funds reserved for
comprehensive CEIS to support the needs of both children with and
without disabilities. Section 300.646(d) requires the State to identify
and address the factors contributing to the significant
disproportionality which may include a wide range of factors, some of
which were mentioned by commenters. Moreover, under Sec. 300.646(d)
the LEA may not limit comprehensive coordinated early intervening
services to children with disabilities. To the extent, then, that an
LEA identifies the lack of early interventions in the general education
program as a factor contributing to the significant disproportionality,
it may use funds reserved for comprehensive CEIS to provide access to
early interventions.
As to partnering with administrators of title I programs, we
understand the commenters to suggest that title I funds should be used
in conjunction with CEIS funds when providing early intervening
services. Title I funds may be used this way, provided that all of the
requirements attached to the funds are met. Further, CEIS funds may be
used to carry out services aligned with activities funded by and
carried out under ESEA, if IDEA funds are used to supplement, and not
supplant, funds made available under the ESEA for those activities.
Changes: None.
Comments: One commenter noted that, while research suggests that
there is disproportionate representation of children of color in
special education, in restrictive special education settings, and in
exclusionary disciplinary actions, the commenter does not believe this
is the result of discriminatory practices. The commenter suggested that
the Department should, therefore, concentrate its efforts on guidance,
for example, on the appropriate identification of students with
disabilities from diverse backgrounds. Similarly, another commenter
suggested that instead of focusing on significant disproportionality,
the Department should reevaluate the causes of ineffective practices in
special education and focus directly upon appropriate services for
students with disabilities in special education. Another commenter made
this point more generally and suggested that the proposed regulations
attempt to solve a problem that may not exist.
Discussion: IDEA section 618(d)(1) (20 U.S.C. 1418(d)(1)) requires
States to provide for the collection and examination of data to
determine if significant disproportionality based on race and ethnicity
is occurring in the State and LEAs of the State. IDEA section 618(d)(2)
(20 U.S.C. 1418(d)(2)) specifies that the review of--and if
appropriate, revision of--policies, practices, and procedures is a
consequence of, rather than a part of, a determination of significant
disproportionality. Therefore, the Department does not have the
authority to relieve States of their responsibility to determine
whether significant disproportionality is occurring in an LEA, or
require the review of polices, practices, and procedures, even in the
absence of evidence showing discriminatory practices. Moreover, once
identified with significant disproportionality, the LEA's review of
policies, procedures, and practices and
[[Page 92385]]
implementation of comprehensive CEIS under Sec. 300.646(d) could
reasonably encompass determinations of whether proper identification
practices are in place or determinations of the effectiveness of
specific services.
Congress intended for States and LEAs to address significant
disproportionality, by race and ethnicity, in special education. We
noted in the NPRM various data points from our IDEA section 618 data,
and using the standard methodology, indicating that children from
certain racial or ethnic groups are overrepresented in special
education, particularly in the categories of emotional disturbance,
specific learning disabilities, and intellectual disabilities. 81 FR
10967. Further, we noted that some children are overrepresented, by
race and ethnicity, with respect to their placement in restrictive
settings and with respect to their exposure to disciplinary removals
from placement. Therefore, we believe that the Department has both a
congressional mandate and factual support for proceeding with this
rule.
Changes: None.
Comment: One commenter asserted that the proposed regulations did
not address the underlying issues that result in racial and ethnic
disparities in the identification of children with disabilities, among
them the failure to strictly follow procedures for child find, referral
for evaluation, the evaluation itself, and subsequent identification of
children as children with disabilities.
Discussion: We disagree and believe that these regulations are
designed to directly address any underlying factors and IDEA
noncompliance that result in or contribute to significant
disproportionality.
Under Sec. 300.646(c), States must provide for a review, and, if
necessary, revision of policies, practices, and procedures to ensure
compliance with IDEA's requirements if an LEA is identified as having
significant disproportionality.
Under Sec. 300.646(d)(1)(ii), an LEA identified as having
significant disproportionality must reserve 15 percent of its IDEA part
B funds for comprehensive CEIS, to identify and address the factors
contributing to the significant disproportionality. If the underlying
cause of significant disproportionality is found to be rooted in
inappropriate practices, such as a failure to appropriately implement
evaluation procedures, this provision would help to identify that issue
and require that the problematic practices be changed. In addition,
addressing the factors contributing to the significant
disproportionality could include training school personnel on the
appropriate implementation of evaluation procedures.
Changes: None.
Proposed Regulations Would Create Racial Quotas
Comment: Many commenters asserted that proposed Sec. Sec.
300.646(b) and 300.647 would put into place racial quotas that would
interfere with the appropriate identification of children with
disabilities based purely on the children's needs. Commenters raised
concerns that the regulations might generally discourage appropriate
identification of children of color, and, in so doing, harm children of
color and children from low-income backgrounds. One commenter argued
that the regulations will exacerbate inequality for children of color
with disabilities and lead to a surge in class action lawsuits by
families arbitrarily denied services based on their children's race or
ethnicity. Other commenters stated that, if the determination of
significant disproportionality is based strictly on numerical data,
then the remedy for significant disproportionality, for some LEAs, will
be denying access to special education services to children of color.
One commenter suggested that to bias LEAs against serving eligible
children with special education services is worse than providing these
services to children who are only marginally eligible.
Discussion: The Department recognizes the possibility that, in
cases where States select particularly low risk ratio thresholds, LEAs
may have an incentive to avoid identifying children from particular
racial or ethnic groups in order to avoid a determination of
significant disproportionality. For this reason, Sec. 300.647(b)(1)
provides States the flexibility to set their own reasonable risk ratio
thresholds, with input from stakeholders and State Advisory Panels. As
part of the process of setting risk ratio thresholds, States must work
with stakeholders to identify particular risk ratio thresholds that
help States and LEAs to address large racial and ethnic disparities
without undermining the appropriate implementation of child find
procedures.
Further, nothing in these regulations establishes or authorizes the
use of racial or ethnic quotas limiting a child's access to special
education and related services, nor do they restrict the ability of IEP
Teams to appropriately identify and place children with disabilities.
In fact, an LEA's use of racial or ethnic quotas to artificially reduce
the number of children who are identified as having a disability, or
inappropriately segregating children in LEAs that serve only children
with disabilities, in an effort to avoid a finding of significant
disproportionality, would almost certainly conflict with the LEA's
obligations to comply with other Federal statutes, including civil
rights laws governing equal access to education. States have an
obligation under IDEA both to identify significant disproportionality,
based on race and ethnicity, in the identification of children with
disabilities and to ensure that LEAs implement child find procedures
appropriately. (20 U.S.C. 1412(a)(3); 34 CFR 300.111). We agree that
the establishment of any such quotas would almost certainly result in
legal liability under Federal civil rights laws, including title VI of
the Civil Rights Act of 1964 and the Constitution.
We generally believe that the appropriate and timely identification
of children with disabilities and the prevention of significant
disproportionality on the basis of race and ethnicity are goals that
work in concert with one another. In fact, a finding of significant
disproportionality could be a signal that an LEA's child find
procedures are not working appropriately. One of the goals of Sec.
300.646(b) and (c) is to help LEAs identified with significant
disproportionality to review and if appropriate, revise policies,
practices, and procedures--including child find procedures--to ensure
compliance with IDEA.
At the same time, we are interested in the impact that these
regulations may have on the appropriate identification of children with
disabilities. As a result, the Department intends to conduct an
evaluation of the implementation of this regulation to assess its
impact, if any, on how LEAs identify children with disabilities. This
evaluation will include an examination of the extent to which school
and LEA personnel incorrectly interpret the risk ratio thresholds and
implement racial quotas in an attempt to avoid findings of significant
disproportionality by States, contrary to IDEA.
Changes: As described above, we have added a new Sec. 300.646(f)
to make clear that these regulations do not authorize a State or an LEA
to develop or implement policies, practices, or procedures that result
in actions that violate any IDEA requirements, including requirements
related to child find and ensuring that a free appropriate public
education is available to all eligible children with disabilities.
[[Page 92386]]
The Purpose of the Proposed Regulations
Comments: One commenter expressed concern that the Department's
discussion of the ability to grant waivers to States and the content of
the NPRM's directed questions indicate that the Department understands
that the proposed regulations do not provide a solution to
disproportionality.
Discussion: The NPRM did not include any discussion regarding
waivers of IDEA section 618(d). 81 FR 10967. As the commenter points
out, IDEA does not include a provision that would allow either the
Department, or States, to waive the statutory remedies--including the
review and revision of policies, practices, and procedures and
reservation of funds for comprehensive CEIS--for LEAs identified with
significant disproportionality.
The Department disagrees that the directed questions in the NPRM
were an indication that the standard methodology and the flexibilities
included in the NPRM will not appropriately identify LEAs with
significant disproportionality. Rather, these questions were a means to
gather informed input from the public about, among other things, how a
standard methodology (and the accompanying flexibilities) should be
structured to ensure proper implementation of the requirements of IDEA
section 618(d). We appreciate the many informed and thoughtful
responses that we received in public comment and have made several
changes to the final regulations based on input from the public to
improve comparability and transparency while providing States and LEAs
sufficient flexibility to appropriately identify and address
significant disproportionality.
Changes: None.
Comments: A commenter generally expressed confidence in their LEAs'
ability to properly determine eligibility and placement for children
with disabilities and to follow board policy with regard to the
discipline of all children with disabilities. The Department
interpreted this comment to suggest that these regulations are not
necessary.
Discussion: The Department agrees with commenters that, in many
LEAs, school personnel and LEA officials appropriately implement IDEA's
requirements. However, we interpret IDEA section 618(d) to require
States to examine data and make determination whether LEAs have
significant disproportionality, based on race and ethnicity,
irrespective of whether the practices, procedures, and policies of the
LEA are appropriate and comply with IDEA. Given the remedies that
States and LEAs must implement following a determination of significant
disproportionality, we believe the statute anticipates that the
significant disproportionality within the LEA may be addressed by
reviewing, and if appropriate, modifying policies, practices, and
procedures not in compliance with IDEA, by providing children and staff
with additional supports through the implementation of comprehensive
CEIS, or by doing both. IDEA section 618(d)(2)(A) and (B), 20 U.S.C.
1418(d)(2)(A) and (B).
Changes: None.
Comment: A few commenters requested assurance that the purpose of
the proposed regulations was more substantive than a means of
identifying a larger number of LEAs with significant
disproportionality.
Discussion: While it is possible that more LEAs may be identified
with significant disproportionality as a result of these regulations,
this outcome is a consequence of, rather than the purpose of, these
regulations. The purpose of these regulations is to increase
comparability and transparency in the examination of data and
identification of LEAs with significant disproportionality across
States to ensure that States are more uniform in implementing IDEA
section 618(d). As the GAO noted in its 2013 report, the flexibility
States were given to define significant disproportionality, in the
absence of this regulation, provided ``no assurance that the problem
[was] being appropriately identified across the nation.'' The
Department believes that these revised regulations will improve
implementation of IDEA section 618(d), build greater knowledge about
the extent of these disparities, and provide additional opportunities
for stakeholders to understand and shape how LEAs are identified with
significant disproportionality.
Ultimately, the purpose of the regulations is to help ensure that
LEAs are appropriately identified with significant disproportionality,
however many LEAs that may be, so that the children with disabilities
in those LEAs receive the services that are appropriate to each of
them. Even under a possible scenario where the first years of
implementing these regulations increases the number of LEAs with
significant disproportionality, using comprehensive CEIS to properly
address the contributing factors should also reduce the number of LEAs
with significant disproportionality in subsequent years.
Changes: None.
Comment: A number of commenters noted that ensuring proper
implementation of IDEA section 618(d) would reinforce existing legal
protections under the Civil Rights Act of 1964, the Americans with
Disabilities Act, title IX of the Education Amendments Act of 1972, and
Section 504 of the Rehabilitation Act.
Discussion: The Department generally agrees with the commenters
that the proper implementation of IDEA section 618(d) may serve to
reinforce and advance civil rights for all children.
Changes: None.
Comments: None.
Discussion: The Department believes it would be helpful to States
and LEAs to clearly state that nothing in this rule supersedes or
replaces other applicable constitutional, statutory, or regulatory
requirements including those related to ensuring proper implementation
of IDEA requirements for child find, free appropriate public education
(FAPE), or placement in the least restrictive environment (LRE).
Similarly, this rule does not abrogate, conflict with, or identify a
specific violation of, any Federal civil rights protection from
discrimination, including discrimination based on race, color, national
origin, sex, or disability. Further, in establishing the methodology
required under this rule (specifically the use of risk ratios and risk
ratio thresholds to determine significant disproportionality), the
Department does not intend that this methodology be presumed to apply
or otherwise occupy the field in other legal contexts where examination
of numerical data for racial and ethnic disparities may be relevant,
such as enforcement of Federal civil rights laws.
Changes: We have added a new Sec. 300.646(f) to make clear that
these regulations do not authorize a State or an LEA to develop or
implement policies, practices, or procedures that result in actions
that violate any IDEA requirements, including requirements related to
child find and ensuring that a free appropriate public education is
available to all eligible children with disabilities.
The Cost and Burden of the Regulations
Comment: One commenter anticipated that the implementation of the
regulations would be more costly and time intensive than the estimates
in the NPRM due to the costs associated with changes to data analysis
protocols, documentation and technical assistance to data personnel to
assure accurate implementation, and communication with schools and
communities.
[[Page 92387]]
Discussion: The Department appreciates the commenter's concern and
agrees that the initial time estimates to implement the regulation were
too conservative. We agree that accurate and high-quality data are
necessary to ensure appropriate implementation of the regulation.
Changes: We have increased the time estimates for modified data
collection protocols, technical assistance activities, and
communication required for implementation and increased the cost
estimates for these regulations. In addition, the Department increased
the estimated costs associated with consulting with State Advisory
Panels to account for the additional time that will now be required for
States to identify reasonable minimum n-sizes, reasonable minimum cell
sizes, and standards for reasonable progress.
Comment: A few commenters expressed concerns about the amount of
staff time that will be needed to implement the regulations. These
commenters argued that some States simply do not have the staff the
Department suggests are needed, and that there are no additional funds
being made available to States for the increase in workload, including
workload required to collect and analyze data. One of these commenters
therefore recommended that the regulations be withdrawn until adequate
funding is provided to support the additional State personnel needed to
implement the regulations. Another commenter recommended that the
Department work with those States or entities with limited staff
support to help them implement the requirements of the proposed
regulations. The commenter further argued that, in the past, States and
entities could rely on the Regional Resource Centers (RRCs) to assist
them in meeting their responsibilities under IDEA. With the elimination
of the RRCs, the commenter suggested that some of the currently funded
data technical assistance centers be tasked with making staff members
available to support the States and other entities to undertake this
work. One commenter asserted that if the State's offices responsible
for special education oversight are required to monitor action plans to
address significant disproportionality, then these new responsibilities
will dilute the State's other monitoring responsibilities.
Discussion: While we recognize that States vary widely both in
their staffing and financial resources, all States that receive funds
under Part B of IDEA must meet the requirements of that Act, including
those outlined in IDEA section 618(d), regardless of the funding
provided under the Act. Therefore, the Department disagrees with
commenters who requested that the Department delay the implementation
of the regulations until adequate funding is provided to support
additional State personnel for both this and other requirements of the
Act.
However, the Department recognizes that there is burden associated
with implementing these final regulations, and States will need varying
levels of support to appropriately implement these regulations.
Therefore, the Department plans to identify Federal resources to
support States' work through the Technical Assistance and Dissemination
network and Department staff. When these resources are available, the
Department will work to ensure that States are aware of Federal
technical assistance resources that can be used to support their
implementation of these new regulations.
Changes: None.
Comments: Some commenters requested that the Department clarify
whether the examples contained in the report in the NPRM, Racial and
Ethnic Disparities in Special Education, were intended to be
illustrative or were intended to be duplicated by States or LEAs in
setting risk ratios. Other commenters stated that the regulations would
cost large amounts of money, both up front and over time, based on the
Department's report published with the NPRM, Racial and Ethnic
Disparities in Special Education. One commenter stated that the actual
cost of the regulation would be $12 billion, as, according to the
commenter, the Department estimated that 8,148 LEAs could be found with
significant disproportionality. The commenter stated that, as the
Department recommended no increase in the Federal budget for special
education, the overall result of the regulation would be a reduction in
Federal funding for special education. Another commenter stated that
the methodology used in the Department's report would mean a five-fold
increase in the number of LEAs identified in one State, which exceeds
the State's capacity to address through a review of policies,
practices, and procedures and through technical assistance.
Several commenters offered other projections of the number of LEAs
that would be identified with significant disproportionality due to
these regulations. In general, commenters provided projections based on
either the Department's report--Racial and Ethnic Disparities in
Special Education--or a projected number of false-positive
identifications of LEAs due to small numbers. According to many of
these commenters, over 80 percent of LEAs in one State would be
identified with significant disproportionality and would have to
transfer tens of millions of dollars away from supporting children with
disabilities. We understand this concern to reference the mandatory
reservation of funds for comprehensive CEIS by LEAs that are identified
with significant disproportionality. Similarly, another commenter
stated that Department projects that 23 States will require 50-80
percent of all LEAs to set aside 15 percent of their Federal share for
comprehensive CEIS, a redirection of some $550 million away from direct
services for special education.
Discussion: The Department's purpose in creating the Racial and
Ethnic Disparities in Special Education report was to provide the
public the number and percentage of LEAs that would be identified with
significant disproportionality if the Department's example risk ratio
thresholds were adopted by all 50 States and the District of Columbia.
We did not intend the tables to be indicative of the actual numbers of
LEAs that would be identified with significant disproportionality under
the proposed regulations, although we can understand how the commenters
read the report this way. The tables do not represent an estimated
number of LEAs that would be identified under the final regulations,
and the risk ratio thresholds included in those tables do not represent
the risk ratios thresholds that States must adopt or the standard that
the Department will use to determine whether or not specific risk ratio
thresholds are reasonable. Under final Sec. 300.647, States retain the
flexibility to set reasonable risk ratio thresholds in excess of those
identified in the table without necessarily being subject to
enforcement actions. Further, as described in greater detail elsewhere,
these final regulations provide States with additional flexibilities
that were not included in the proposed regulations to set reasonable
minimum n-sizes and minimum cell sizes, both of which we expect would
reduce the number of LEAs included in the analyses and the number of
so-called ``false positives'' (e.g., LEAs identified due to small
changes in the student population that result in large changes in the
risk ratio that do not represent any systemic problems giving rise to
significant disproportionality). As such, we do not believe that the
tables in the Department's report reflect the actual number of LEAs
that will be identified
[[Page 92388]]
as having significant disproportionality under these final regulations.
The Department therefore does not agree with the cost estimates
produced by commenters who used the report as a basis for estimating
costs or the number of LEAs that will be identified with significant
disproportionality.
Changes: None.
Comment: A few commenters challenged the Department's estimate in
the Regulatory Impact Analysis of the NPRM of how many LEAs would be
identified with significant disproportionality, stating that the
regulation would significantly increase the number of LEAs identified
with significant disproportionality. One commenter noted that the
Department provided little explanation for its estimates that 400 to
1,200 LEAs could be affected by the regulations.
Discussion: As stated in the NPRM, the Department does not know
with a high degree of certainty how many LEAs would be newly identified
in future years, particularly given the wide flexibilities provided to
States in the final regulations. To address this uncertainty, the
Department used SY 2012-13 IDEA section 618 data, in which States
identified 449 out of approximately 16,000 LEAs as having significant
disproportionality. Using that year's data as a baseline, the
Department's estimates were based on the overall number of LEAs
identified with significant disproportionality roughly doubling under
the proposed regulations. However, to fully examine the sensitivity of
our analysis to this estimate, we also included estimates for the
number of identified LEAs tripling and quadrupling over the baseline.
As discussed in the NPRM, we believe it would be highly unlikely that
such an increase would be realized.
Changes: None.
Comment: One commenter expressed that, if only 400 LEAs would be
impacted, there is little need for the regulation.
Discussion: We disagree with the commenter's assertion that the
likelihood that a small number of LEAs will be affected should
determine the appropriateness of regulatory action. Under IDEA, each
and every child with a disability is entitled to a free appropriate
public education in the least restrictive environment. If the
regulations can help to identify and address racial disparities in
special education--which may result from inappropriate identification,
placement, and discipline of children with disabilities--regulatory
action is fully warranted.
Changes: None.
Evaluating the Impact of the Regulation
Comment: One commenter requested that the Department withdraw the
proposed regulations due to concerns that they do not include
sufficient detail to allow the public to provide informed comments. In
particular, the commenter expressed concern that the proposed
regulations do not include any national standard, criteria, benchmarks,
or goals upon which to gauge State compliance with them. The Department
interprets these comments to refer to the impact of the proposed
standard methodology.
Discussion: In its 2013 audit, the GAO noted that the wide
variability in States' approaches to identifying significant
disproportionality made it difficult to determine the extent of
significant disproportionality across the Nation, or the extent to
which it is being addressed. The Department agrees with the GAO's
assessment, and believes States' current implementation of IDEA section
618(d)--with only 28 States and the District of Columbia identifying
any significant disproportionality--would not provide an appropriate
baseline from which to establish benchmarks or goals for the reduction
of significant disproportionality.
The Department's goal in issuing these regulations, as discussed in
the NPRM, is to ensure the appropriate review of data and examination
for significant disproportionality, and to help States and LEAs address
and reduce significant disproportionality. To accomplish this goal, as
well as facilitate a better understanding of the extent of significant
disproportionality across the Nation, the Department did not propose to
decide for States the point at which specific racial or ethnic
overrepresentation becomes significant disproportionality; rather, the
Department proposed to require States to follow a standard methodology,
with flexibility to account for State differences, consistent with the
GAO's 2013 recommendation. Further, a key area of flexibility, under
Sec. 300.647(b)(1)(i), allows States to set reasonable risk ratio
thresholds, with input from stakeholders and State Advisory Panels,
under Sec. 300.647(b)(1)(i), subject to the Department's review and
enforcement for reasonableness. As the risk ratio threshold is the
point at which an LEA is determined to have significant
disproportionality, this aspect of the standard methodology has a
strong impact on the total cost. Accordingly, the Department's proposal
to allow States to select reasonable risk ratio thresholds means that,
to a great extent, the final impact of these regulations will be
determined by the States themselves. This relationship between the
flexibility afforded to States, and the Department's estimates of the
costs of the regulation, were explained in the NPRM. The Department
continues to believe that allowing States the flexibility to set
reasonable risk ratio thresholds is necessary to account for
differences between States, despite the fact that Department-
established risk ratio thresholds would allow for a more precise
assessment of the costs of the regulation.
Changes: None.
Comment: Several commenters responded to Directed Question #13 in
the NPRM, which requested suggestions for the metrics the Department
should establish to assess the regulations once they are final. We
received a variety of responses.
One commenter suggested that the regulations be measured by whether
they reduce or eliminate the number of States and LEAs with significant
disproportionality. A different commenter, by contrast, suggested that
measures focus on children, not LEAs and suggested that the Department
give consideration to the number of children attending LEAs identified
with significant disproportionality and the proportion of all children
that represents. Another made a similar suggestion, that the Department
should compare proportions of children with disabilities identified,
placed, and disciplined over three years--within an LEA and across LEAs
with comparable demographics--to determine, first, whether there is a
decrease in significant disproportionality over the years within LEAs
and, second, if trends in significant disproportionality are similar
across LEAs with comparable demographics. Still another suggested that
the Department monitor metrics that focus on the placement of children
with particular impairments--specifically, children with autism,
emotional disturbance, or intellectual disability--outside of the
regular classroom. The commenter argued that a child's disability
should not be the determining factor for where the child spends the
school day. Last, a few commenters recommended that the Department
assess the regulation's impact on the appropriate identification,
placement, and discipline of children with disabilities; increases in
placement in the regular classroom for children of color with
disabilities; increases in access to the general curriculum for
children of color with disabilities; and movement of children of color
from restrictive settings to placement in the regular
[[Page 92389]]
classroom 80 percent or more of the school day.
A few commenters suggested that the Department use monitoring
metrics that include State baseline and progress data but insisted that
these data not be used in any ranking or accountability ratings.
Another commenter suggested that the Department monitor baseline and
progress data that integrate IDEA results-driven accountability
measures with measures from Federal elementary and secondary, as well
as career and technical, education programs. Another commenter
recommended that metrics used to assess the regulation include
academic, social, and emotional outcomes.
Finally, a few other commenters interpreted the question broadly,
perhaps more broadly than intended. One commenter suggested that the
Department develop self-assessments for States, similar to what the
Department previously provided for dispute resolution and correctional
education. Another commenter suggested the Department measure impact by
monitoring and enforcing the requirement in proposed Sec.
300.647(b)(1)(i), which requires States to use advice from
stakeholders.
Discussion: The Department appreciates the comments we received
addressing what metrics should be established to assess these
regulations once they become final, and will take them all into
consideration. Further, as States take the steps necessary to implement
the regulations, we will be in a better position to determine what
evaluation metrics, monitoring, and technical assistance, will be most
meaningful and appropriate.
Changes: None.
Reporting Requirements
Comment: A few commenters generally opposed any attempt by the
Department to require States to take on additional reporting burden.
Discussion: We recognize the commenters' concern about reporting
burden. Under IDEA section 618(d) (20 U.S.C. 1418(d)), States are
required to collect and examine data to determine whether significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State. Prior to these regulations, the
Department clarified in guidance the specific data that States must
collect and review with respect to the identification of children as
children with disabilities, including the identification of children
with particular impairments, placement and disciplinary removals. OSEP
Memorandum 08-09 (July 28, 2008). The Department made a concerted
effort, both in our prior guidance and in these final regulations, to
ensure that States were only required to collect and examine data that
they, and their LEAs, are otherwise obligated to collect and report to
the Department and the public under IDEA section 618(a) (20 U.S.C.
1418(a)). We have added a new Sec. 300.647(b)(7) requiring States to
report all risk ratio thresholds, minimum cell sizes, minimum n-sizes,
standards for measuring reasonable progress and the rationales for each
to the Department. Prior to the development of a new data collection to
be submitted to the Department at a time and in a manner determined by
the Secretary, the EMAPS User Guide: State Supplemental Survey--IDEA
will be revised to clarify what specific information States should
include within their definition of significant disproportionality. The
updated survey instructions will be released in February of 2017. The
Department is sensitive to the reporting burdens upon States, but
believes that the additional reporting requirements created by this
regulation will be minimal as States are required to select risk ratio
thresholds, minimum cell sizes, and minimum n-sizes, and States will
have sufficient time to prepare before that information is required. We
also believe that this information will help the Department analyze the
impact of this regulation. As noted in the regulation, this information
will be collected in a time and manner determined by the Secretary and
will not be collected until an information collection request has been
completed.
Changes: We have added a new Sec. 300.647(b)(7) requiring States
to report all risk ratio thresholds, minimum cell sizes, minimum n-
sizes, standards for measuring reasonable progress, and the rationales
for each to the Department at a time and in a manner determined by the
Secretary. We are currently revising the EMAPS User Guide: State
Supplemental Survey--IDEA to clarify what specific information States
should include within their definition of significant
disproportionality. These include requests of States to include
information on risk ratio thresholds and minimum cell and n-sizes. The
revised survey instructions will publish in February 2017. States will
then submit SY 15-16 data.
Comments: Commenters requested that States each be required to
submit a long-term plan to the Department for addressing significant
disproportionality that includes how they will implement the new
regulations and provide support to LEAs.
Discussion: The Department recognizes the value of States having
long-term plans to reduce significant disproportionality. Indeed, we
believe such an approach, including the setting of appropriate risk
ratio thresholds, minimum n-sizes, and minimum cell sizes, can serve to
help States identify the most pressing issues facing their students and
provide adequate support to LEAs as they work to reduce significant
disproportionalities.
In addition, we note that to the extent that implementation of
these regulations, including establishing reasonable risk ratio
thresholds, cell sizes, n-sizes and a measure for reasonable progress,
would require changes to a State's policies and procedures, under Sec.
300.165, States must conduct public hearings, ensure adequate notice of
those hearings, and provide an opportunity for public comment. We would
expect that States, in consulting with stakeholders, including their
State Advisory Panels, would engage in planning to ensure the best
results for their students. However, we believe that requiring States
to report these plans to the Department would place an unnecessary
burden upon them. As such, we decline to require this reporting.
Changes: None.
Comments: A few commenters suggested that the Department add a
requirement for States to publicly report risk ratios, including LEA-
level risk ratios, regarding placement, noting that they are rarely
reported and that LEAs are rarely aware of their own performance. One
commenter requested that the Department require States to publish LEA-
wide data on suspensions of children of color with disabilities.
Discussion: Under IDEA section 618(a)(3) (20 U.S.C. 1418(a)(3)),
the Department has broad authority to require States to collect, and
report to the Department and the public, data and information related
to Part B of IDEA. In general, the Department does not exercise this
authority by including specific reporting requirements in regulations.
Rather, the Department issues an information collection request, which
is subject to public comment, to specify the data States must collect
and report. Under the Department's current information collection (OMB
Control No. 1875-0240), States are required to submit counts of
children with disabilities, by race, who are (1) identified with a
particular impairment, (2) placed in particular educational settings,
and (3) subjected to disciplinary removals. We agree with the
commenters' suggestion that all of the risk ratios and alternate risk
ratios
[[Page 92390]]
the States calculate for their LEAs should be made public. This
increased transparency allows States, LEAs, and stakeholders alike to
monitor significant disproportionality and reinforces the review and
revision of risk ratio thresholds, cell sizes, and n-sizes as an
iterative public process within each State. The Department therefore
anticipates that all risk ratios and alternative risk ratios will be
made public but has not yet determined the precise time and manner for
this to occur. We anticipate doing so through an information collection
request, through the Department's own publication of these data, or
some combination of the two.
Changes: None.
Comments: A few commenters suggested that the Department add a
requirement for States to publicly report risk ratios calculated to
determine disproportionate representation, under IDEA section
612(a)(24).
Discussion: These regulations pertain only to IDEA section 618(d)
(20 U.S.C. 1418(d)), which outlines the obligation of each State to
collect and examine data to determine if significant
disproportionality, based on race or ethnicity, is occurring in the
State and LEAs of the State with respect to the identification,
placement, or discipline of children with disabilities. A different
provision of IDEA--section 612(a)(24) (20 U.S.C. 1412(a)(24)--requires
States, consistent with the purposes of IDEA and IDEA section 618(d),
to develop policies and procedures designed to prevent the
inappropriate over-identification or disproportionate representation by
race and ethnicity of children as children with disabilities, including
children with disabilities with a particular impairment. Under
Indicators 9 and 10 of the Part B State Performance Plan/Annual
Performance Report (SPP/APR), consistent with section 616(a)(3)(C) (20
U.S.C. 1416(a)(3)(C)), States are required to report the percent of
districts with disproportionate representation of racial and ethnic
groups in special education and in specific disability categories that
is the result of inappropriate identification. It would be outside the
scope of these regulations to prescribe how States collect, calculate,
or report data regarding the identification of LEAs with
disproportionate representation due to inappropriate identification.
Changes: None.
Comments: One commenter requested that the Department require
States to report data on all children who are deaf and hard of hearing,
regardless of whether another disability is considered the child's
primary disability, in its IDEA section 618 data collection. The
commenter stated that up to 55 percent of deaf and hard of hearing
children are reported to have an additional disability. The commenter
believed that, if they are counted in the category of their additional
disability, but not in the category of hearing impairment, data on the
number of deaf and hard of hearing children is incomplete or
inaccurate.
Discussion: The Department appreciates the commenter's concern that
if children who are deaf or hard of hearing are not counted in the
categories of deafness or hearing impairment, but are counted in the
another category that is considered the child's ``primary disability,''
the State's section 618 data on the number of deaf and hard of hearing
children is incomplete or inaccurate. The commenter's suggestion that
the Department change the section 618 data collection for children who
are deaf or hard of hearing is outside the scope of this regulation. We
also note that children who are deaf or hard of hearing are not
included as a category of analysis under Sec. 300.647(b)(3).
Therefore, States are not required to determine if significant
disproportionality is occurring with respect to the identification of
children who are deaf or hard of hearing.
Changes: None.
Comments: A few commenters requested that the Department require
States to annually report additional discipline data--suspensions of
one day or more disaggregated by impairment, race and ethnicity,
gender, and English language proficiency--to the public. These
commenters suggested that this data would help address the problem that
children identified with deafness, blindness, or traumatic brain injury
are often disciplined due to improper school discipline policies or
inadequate staff training.
One commenter stated that, under IDEA section 618(a)(1), while
States are already required to do this reporting, as of 2013, only 16
States had reported any discipline data for children with disabilities,
and only 1 State provided the disaggregated data as required by
Statute. The commenter requested that the Department reinforce for the
States that compliance with the public reporting requirements of IDEA
will be reviewed by the Secretary and could influence the Department's
determination of whether risk ratio thresholds are reasonable.
Discussion: The Department declines to require States to annually
report additional discipline data under IDEA section 618(a) through
these regulations. Further, in the exercise of our responsibilities to
ensure compliance with IDEA, the Department annually reviews each
State's SPP/APR, in which each State reports to the Secretary on the
performance of the State and makes an annual determination of the
State's performance under section 616(d) of IDEA (20 U.S.C. 1416(d)).
The Department considers the timeliness and accuracy of data reported
by the State under section 618 of IDEA, when making annual
determinations for each State under IDEA section 616(d) (20 U.S.C.
1416(d)). The Department would typically address noncompliance with
section 618(a) reporting requirements through this process and, as
such, we decline to address them as part of this regulation.
Further, States' compliance with the requirement to report to the
Department under IDEA section 618(a) is a separate issue from the
State's compliance with the requirement to establish reasonable risk
ratio thresholds under Sec. 300.647 of the final regulation, which
implements IDEA section 618(d). For this reason, we decline the
commenters' request to consider States' reporting under section 618(a)
in the Department's review of the reasonableness of States' risk ratio
thresholds.
Changes: None.
Comments: One commenter requested that the Department eliminate
SPP/APR Indicators 4 (rates of suspension and expulsion), 9
(disproportionate representation in special education resulting from
inappropriate identification), and 10 (disproportionate representation
in specific disability categories resulting from inappropriate
identification). The commenter asserted that the standard methodology
will require States to duplicate analyses of the same data, albeit with
varying definitions, and to report it twice.
Discussion: We are sensitive to concerns about duplicative
reporting requirements and seek to reduce them wherever possible.
However, multiple distinct provisions of IDEA require States to analyze
similar data sets to identify LEAs where racial or ethnic disparities
exist. These provisions include IDEA sections 612(a)(24) and
616(a)(3)(C) (20 U.S.C. 1412(a)(24) and 1416(a)(3)(C)), under which
States must identify LEAs with disproportionate representation that is
the result of inappropriate identification; IDEA section 612(a)(22) (20
U.S.C. 1412(a)(22)), under which States must identify LEAs that have a
significant discrepancy in the rate of long-term suspensions and
expulsions; and IDEA section 618(d), which is the focus of these
regulations. While the Department acknowledges that these provisions
may require States to use similar data (i.e.,
[[Page 92391]]
identification and discipline data disaggregated by race and
ethnicity), the data analysis required to identify LEAs with
disproportionate representation, a significant discrepancy, and
significant disproportionality is different. As States have an
obligation under IDEA to comply with each of these provisions, we
believe it is appropriate for the Department to monitor their
implementation separately.
Further, the Department does not have flexibility to eliminate
Indicators 9 and 10 of the SPP/APR--under which States report their
implementation of IDEA section 612(a)(24)--as States are explicitly
required to submit this information under IDEA section 616(a)(3)(C) (20
U.S.C. 1416(a)(3)(C)).
Changes: None.
Additional State and Local Standards
Comments: One commenter requested that the Department set State and
local standards, as well as national standards, for identifying and
addressing significant disproportionality.
Discussion: To the extent that the commenter means that the
Department should, in addition to the standard methodology, require
States and LEAs to adopt additional standards for identifying
significant disproportionality, we believe this is unnecessary. The
standard methodology in Sec. 300.647 implements the requirement in
IDEA section 618(d) (20 U.S.C. 1416(d)) that each State annually
collect and examine data to determine if significant disproportionality
based on race and ethnicity is occurring in the State and the LEAs of
the State with respect to the identification, placement, and discipline
of children with disabilities. Section 300.647 sets common parameters
for analysis, which each State must use to determine whether
significant disproportionality is occurring at the State and local
level. As such, there is no need for the Department to set any separate
State or local standards.
To the extent that the commenter means that the Department should
set State and local standards for addressing significant
disproportionality once it is identified in LEAs, we believe that this
is not the best approach given the potential variability in the needs
of students with and without disabilities in the various States and
LEAs and that further prescribing the ways that States and LEAs must
respond to significant disproportionality is unnecessary at this time
and in these regulations.
IDEA section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B), requires LEAs
identified with significant disproportionality to reserve 15 percent of
their IDEA Part B funds for comprehensive CEIS. The Department believes
that the specifics of how those funds are to be used to address the
underlying factors is best left to State and local officials. The
Department notes that IDEA section 613(f) (20 U.S.C. 1413(f)) already
sets out examples of the kinds of activities that may be funded.
Section 300.646(d) of these regulations does the same and adds, in
Sec. 300.646(d)(1)(ii), that comprehensive CEIS must be directed to
identifying and addressing the factors contributing to the significant
disproportionality in the LEA. Regulations specifically prescribing how
this is to be done cannot possibly address the myriad circumstances and
needs that local officials will encounter when determining how best to
provide comprehensive CEIS.
Changes: None.
Noncompliance With IDEA
Comments: One commenter requested that the Department not consider
a finding of significant disproportionality as a finding of
noncompliance with IDEA which, as explained in OSEP Memorandum 09-02
(October 17, 2008), would require correction at the individual and
systems levels within one year of the finding. IDEA sections 616 and
642 (20 U.S.C. 1416 and 20 U.S.C. 1442). The commenter stated that a
finding of significant disproportionality is merely an indication that
policies, practices, and procedures warrant further attention due to
the number of children of a race or ethnicity that have been
identified, placed, or disciplined, as opposed to an indication that
the LEA has taken inappropriate action. Further, the commenter, along
with one other, argued that a State would not be able to enforce the
correction of non-compliance for individual children affected by
disproportionality with respect to identification or placement, as
these are IEP Team decisions.
Discussion: The Department generally agrees with the commenters'
description of a finding of significant disproportionality. An LEA
found to have significant disproportionality is not necessarily out of
compliance with IDEA; rather, as the commenter indicated, the
significant disproportionality is, among other things, an indication
that the policies, practices, and procedures in the LEA may warrant
further attention.
If an LEA is identified with significant disproportionality, the
State must provide for review and, if appropriate, revision of
policies, practices, and procedures used in identification or placement
in particular education settings, including disciplinary removals, to
ensure they comply with the requirements of IDEA.
If the State identifies noncompliance with a requirement of IDEA
through this review, then under Sec. 300.600(e), the State must ensure
that the noncompliance is corrected as soon as possible, and in no case
later than one year after the State's identification of the
noncompliance. When verifying the correction of identified
noncompliance, the State must ensure that the LEA has corrected each
individual case of noncompliance, unless the child is no longer within
the jurisdiction of the LEA and the State determines that the LEA is
correctly implementing the specific regulatory requirement(s) based on
a review of updated data such as data subsequently collected through
on-site monitoring or a State data system, as explained in OSEP
Memorandum 09-02, dated October 17, 2008.
Changes: None.
General Opposition to the Regulation
Commenters: A number of commenters expressed general opposition to
the proposed regulations, which they understood to cut special
education funding. A few commenters expressed general opposition to the
Department's proposed regulations as a whole, without further
clarification.
Discussion: Final Sec. Sec. 300.646 and 300.647 do not change the
level of funding under IDEA provided to States or their LEAs. To the
extent that these commenters are referring to the required reservation
of funds to provide comprehensive CEIS, we note that IDEA section
618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)) makes the reservation mandatory
upon a finding of significant disproportionality in an LEA. The
Department does not have the authority to alter this statutory
requirement. As to the commenters who express general opposition, we
set out throughout this document our reasons for proceeding with these
regulations.
Changes: None.
Comments on the Racial and Ethnic Disparities Report
Changes: None.
Comments: A few commenters expressed concern that they were unable
to reproduce the example risk ratio thresholds or verify the
calculations published in the Department's report, Racial and Ethnic
Disparities in Special Education. Other commenters requested that we
publish the business rules associated with the report.
Discussion: We apologize for any concern or confusion the report
may
[[Page 92392]]
have caused. We attempted to include the necessary details and
explanations with the report, which we believe are responsive to the
request for business rules. It was, however, not necessary, nor was it
our intent, for States to reproduce the risk ratio thresholds or
minimum n-size used in the report. The Department did not intend for
States to adopt the risk ratios or minimum n-size in the report
(referred to as ``cell size'' in the NPRM and the report), and the
report did not account for the flexibilities provided in the
regulations. Rather, the purpose of including the report was to provide
the public with a set of tables showing the number and percentage of
LEAs that would be identified with significant disproportionality if
the Department's example risk ratio thresholds and minimum n-size were
adopted by all 50 States and the District of Columbia.
Changes: None.
Timeline and Effective Date of the Regulation
Comment: A number of commenters expressed concerns about the
timeline for the implementation of the new regulations. One commenter
stated that, if the regulations go into effect immediately, it would be
costly to require States to retroactively implement the standard
methodology, determine significant disproportionality, and notify LEAs.
The commenter added that this timeline would present a challenge for
States that have already made their significant disproportionality
determinations for the next year. The commenter concluded by
recommending a phase-in period for the implementation of the new
standard methodology and the consequences for LEAs.
Similarly, another commenter stated that the Department should
first run a pilot year in selected States. This, the commenter said,
would allow States to prepare new personnel to implement the
regulations (as, according to the commenter, there has been personnel
turnover since the last regulation of IDEA section 618(d)); provide the
Department with additional time to prepare comprehensive guidance and
technical assistance; provide the Department an opportunity to
determine whether these regulations are likely to address racial and
ethnic disparities; and support more accurate and complete national
data, due to the availability of stronger guidance. Finally, other
commenters requested that the Department give States and LEAs
additional time to understand the new standard methodology and
proactively make efforts to address racial and ethnic disparities.
Discussion: The Department agrees that additional time is needed to
implement these regulations. With time for compliance delayed, we
believe there is no need for a phase-in year or a pilot year in
selected States.
These regulations become part of the Code of Federal Regulations on
January 18, 2017. However, States and LEAs will not be required to
comply with these regulations until July 1, 2018, and, in the case of
Sec. 300.647(b)(3)(iii), States may delay including children ages
three through five in the review of significant disproportionality with
respect both to the identification of children as children with
disabilities and to the identification of children as children with a
particular impairment, until July 1, 2020.
The Department recognizes the practical necessity of allowing
States time to plan for implementation of these final regulations,
including time to amend the policies and procedures necessary for
compliance. States will need time to develop the policies and
procedures necessary to implement the standard methodology in Sec.
300.647 and the revised remedies in Sec. 300.646(c) and (d). In
particular, States must consult with their stakeholders and State
Advisory Panels under Sec. 300.647(b)(1) to develop reasonable risk
ratio thresholds, a reasonable minimum n-size, a reasonable minimum
cell size, and, if a State uses the flexibility described in Sec.
300.647(d)(2), standards for determining whether an LEA has achieved
reasonable progress under Sec. 300.647(d)(2) in lowering a risk ratio.
States must also determine which, if any, of the available
flexibilities under Sec. 300.647(d) they will adopt. To the extent
States need to amend their policies and procedures to comply with these
regulations, States will also need time to conduct public hearings,
ensure adequate notice of those hearings, and provide an opportunity
for public comment, as required by Sec. 300.165.
Accordingly, States must implement the standard methodology under
Sec. 300.647 in SY 2018-19. In doing so, States must identify LEAs
with significant disproportionality under Sec. 300.647(c)(1) in SY
2018-2019 using, at most, data from the three most recent school years
for which data are available. We note that, in the case of discipline,
States may be using data from four school years prior to the current
year, as data from the immediate preceding school year may not yet be
available at the time the State is making its determinations (i.e.,
final discipline data from SY 2017-2018 may not yet be available at the
time during SY 2018-2019 the State is calculating risk ratios).
States must ensure that the identification of LEAs with significant
disproportionality based on race and ethnicity in the identification,
placement, or disciplinary removal of children with disabilities in SY
2018-2019, is based on the standard methodology in Sec. 300.647, and
then implement the revised remedies in accordance with Sec. 300.646(c)
and (d). In the spring of 2020, therefore, States will report (via IDEA
Part B Maintenance of Effort (MOE) Reduction and Coordinated Early
Intervening Services (CEIS) data collection, OMB Control No. 1820-0689)
whether each LEA was required to reserve 15 percent of their IDEA Part
B funds for comprehensive CEIS in SY 2018-19.
States may, at their option, accelerate this timetable by one full
year. States may implement the standard methodology in SY 2017-18 and
assess LEAs for significant disproportionality using data from up to
the most recent three school years for which data are available. States
that choose to implement the standard methodology in Sec. 300.647 to
identify LEAs with significant disproportionality in SY 2017-2018 may
also require those LEAs to implement the revised remedies in in
accordance with Sec. 300.646(c) and (d).
Whether a State begins compliance in SY 2017-2018 or 2018-2019, it
need not include children ages three through five in the review of
significant disproportionality with respect both to the identification
of children as children with disabilities and to the identification of
children as children with a particular impairment, until July 1, 2020.
Finally, the delayed compliance date does not mean that States are
excused from making annual determinations of significant
disproportionality in the intervening years. States must still make
these determinations in accordance with the current text of Sec.
300.646.
Changes: None.
Appropriate Placement of Children With Disabilities
Comments: Commenters expressed concerns that the Department is
encouraging the placement of children with disabilities in the regular
classroom, irrespective of their needs or IEP Team decisions. One
commenter expressed concern at the Department's perceived suggestion
that children placed in restrictive environments receive substandard
education and do not receive appropriate services. The commenter noted
that, while the Department stated its intention not to
[[Page 92393]]
limit services for children with disabilities who need them, its
suggestion that over-identification results in restrictive placements
and less challenging academic standards suggests otherwise. The
commenter noted that private, specialized education programs that serve
children with disabilities publicly placed by LEAs are required to meet
the same academic standards as public schools and that each public
agency is required to ensure that a continuum of alternative placements
and services is available to children with disabilities.
Discussion: The Department agrees with commenters that it would be
inappropriate to place all children with disabilities in the general
education classroom 100 percent of the time without regard to their
individual needs or IEP Team decisions, including decisions about
supplementary aids and services that will enable the child to be
involved in, and make progress in, the general education curriculum.
Section 300.115 explicitly requires that each public agency ensure that
a continuum of alternative placements is available to meet the needs of
children with disabilities for special education and related services.
Further, Sec. 300.116 requires that each child's placement decision
must be made in conformity with the least restrictive environment (LRE)
provisions in Sec. Sec. 300.114 through 300.118. The LRE provision in
IDEA section 612(a)(5), (20 U.S.C. 1412(a)(5)) and its implementing
regulation in Sec. 300.114 require, to the maximum extent appropriate,
that children with disabilities, including children in public or
private institutions or other care facilities, be educated with
children who are not disabled. Special classes, separate schooling, or
other removal of children with disabilities from the regular
educational environment should occur only when the nature or severity
of the disability of a child is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily. Unnecessarily removing children with disabilities from
an integrated setting and concentrating them in separate schools runs
contrary to the integration goal that lies at the heart of the
Americans with Disabilities Act (ADA). (See, e.g., 28 CFR
35.130(b)(1)(ii), (b)(1)(iv), (b)(2); see also, Olmstead v. L.C., 527
U.S. 581, 597 (1999) (``Unjustified isolation, we hold, is properly
regarded as discrimination based on disability'' under title II of the
ADA).) Additionally, under Sec. 300.116, a child's placement must be
determined at least annually, be based on the child's individualized
education program (IEP), and be as close as possible to the child's
home. The overriding rule is that placement decisions must be
determined on an individual, case-by-case basis, depending on each
child's unique needs and circumstances and, in most cases, based on the
child's IEP. Further, eligibility determinations and placement
decisions must be made at the local level with parental input and in
accordance with the requirements of IDEA and its implementing
regulations.
These regulations do not override either the requirement under
Sec. 300.306(a) that eligibility determinations must be made by a
group of qualified professionals and the parent of the child or the
requirement under Sec. 300.116(a)(1) that placement decisions must be
made by a group of persons, including the parents, and other persons
knowledgeable about the child, the meaning of the evaluation data, and
placement options.
However, to the extent that a State identifies significant
disproportionality based on race or ethnicity with respect to
identification and placement in an LEA, we believe it is fully
appropriate, as IDEA section 618(d)(2)(A) (20 U.S.C. 1418(d)(2)(B)
requires, for there to be a review, and, if necessary, revision, of the
policies, practices, and procedures of the LEA to ensure that
eligibility and placement decisions are consistent with IDEA's focus on
providing children with disabilities a free appropriate public
education in the least restrictive environment based on their
individual needs.
Changes: None.
Comments: Many commenters raised concerns that a standard
methodology would be inconsistent with the individualized nature of
IDEA. Some were concerned that proposed Sec. 300.647(b) would lead
LEAs to establish strict, albeit unofficial, quotas on the numbers of
children with disabilities who could be identified, placed in
particular settings, or disciplined in order for the LEA to avoid being
identified with significant disproportionality. These commenters stated
that this practice, or any uniform mathematical calculation, would fail
to consider each child's individual needs. Other commenters had similar
concerns, noting that identification and placement decisions are
appropriately made by IEP teams on an individual basis--based on a
full, fair, and complete evaluation, consistent with IDEA's
requirements--and argued that it would be inappropriate for the
Department to promulgate a regulation that could exert undue pressure
on those decisions. These commenters said that discipline decisions
alone should be subject to analysis for significant disproportionality,
as it was the only category that was an administrative decision and not
the purview of IEP teams.
Discussion: Under IDEA section 601(d)(1)(A) (20 U.S.C.
1400(d)(1)(A)), one of the purposes of IDEA is to ensure that all
children with disabilities have available to them a free appropriate
public education that emphasizes special education and related services
designed to meet their unique needs. The Department disagrees with the
assertion that any uniform methodology for determining significant
disproportionality in LEAs would be inconsistent with IDEA's emphasis
on addressing the unique needs of individual children. In fact, one of
the main goals of these regulations is to help ensure, through improved
implementation of section 618(d) of IDEA, that identification and
placement decisions are, in fact, based on the unique needs of
individual children, rather than the result of problematic policies,
practices, and procedures that may differentially and inappropriately
affect children in various racial and ethnic groups.
Once an LEA is identified as having significant disproportionality,
it would not be appropriate for the LEA to overturn prior decisions
regarding the identification of children as children with disabilities
or the placement of children with disabilities in particular
educational environments simply to prevent future findings of
significant disproportionality.
Moreover, it is a violation of IDEA for LEAs to attempt to avoid
determinations of significant disproportionality by failing to identify
otherwise eligible children as children with disabilities. IDEA
sections 612(a)(3)(A) and 613(a)(1), 20 U.S.C. 1412(a)(3)(A) and 20
U.S.C. 1413(a)(1). Imposing artificial numerical targets on the groups
responsible for making eligibility determinations under Sec.
300.306(a)(1) or placement decisions under Sec. 300.116(a)(1), or
restricting their ability to make eligibility determinations or
placement decisions based on the unique needs of the child are also
inconsistent with IDEA. IDEA requires that the individual needs of
children with disabilities, as described in their IEPs, be central to
determining eligibility for IDEA services and appropriate placement.
Furthermore, IDEA and its implementing regulations currently
include provisions to safeguard individualized decision-making. States
must ensure that all LEAs, including
[[Page 92394]]
those determined to have significant disproportionality with respect to
identification, implement the States' child find procedures. (20 U.S.C.
1412(a)(3) and (a)(11) and 20 U.S.C. 1416 (a)(1)(C)) (34 CFR 300.111,
300.149 and 300.600). States must also ensure that LEAs comply with
specific evaluation procedures under IDEA section 614(b) (20 U.S.C.
1414(b)) to determine a child's eligibility for special education
services and ensure that a child's placement in a particular education
setting is based on his or her IEP (Sec. 300.116(b)) and is in the
least restrictive environment (IDEA section 612(a)(5)) (20 U.S.C.
1412(a)(5)). Under IDEA section 618(d)(2)(A) (20 U.S.C. 1418(d)(2)(A)),
States must provide for an annual review, and, if appropriate, revision
of policies, practices, and procedures to ensure that LEAs identified
with significant disproportionality are in compliance with IDEA's
requirements. Through this review process and their monitoring
procedures, States have an opportunity to ensure that LEAs identified
with significant disproportionality appropriately implement child find,
evaluation, and placement procedures.
Last, while the Department will require all States to use a
standard methodology to implement IDEA section 618(d), we believe that
Sec. 300.647(b) provides States with sufficient flexibility to prevent
unintended consequences associated with the use of a numerical formula
to identify significant disproportionality. When risk ratio thresholds
are set too low, we believe there is some risk that LEAs may face
pressure to inappropriately limit or reduce the identification of
children with disabilities to avoid a determination of significant
disproportionality. For this reason, we believe it is important for
States to take time to consult with their stakeholders and State
Advisory Panels to ensure that, when setting risk ratio thresholds,
they balance the need to identify significant disproportionality in
LEAs with the need to avoid perverse incentives that would inhibit a
child with a disability from being identified or placed in the most
appropriate setting based on the determination of the IEP Team.
Changes: None.
Special Education--Generally
Comments: A few commenters asserted that special education must be
seen as a support for children, not as bad for children or as a
punishment, and that it was inappropriate for the Department to suggest
that special education services are generally of low quality.
Discussion: We agree that special education and related services
provided in conformity with a child's IEP are essential for children
with disabilities to receive a free appropriate public education. We do
not agree that we in any way suggested that special education services
are of low quality or that they are a punishment of any kind. To the
extent that children in particular racial or ethnic groups are
disproportionately identified as children with disabilities, placed in
particular educational environments, and disciplined, it is possible
that the special education and related services that those children are
receiving are inappropriate for their specific needs. This says nothing
about the quality of the services that LEAs provide to children with
disabilities generally.
Changes: None.
Results-Driven Accountability
Comments: Some commenters expressed concerns that the proposed
regulations divert OSEP away from results-driven accountability--which
includes consideration of both compliance and results data in measuring
States' performance under IDEA annual determinations process--and back
towards IDEA compliance alone.
Discussion: We disagree. The Department's re-conceptualized IDEA
accountability system--results-driven accountability--is designed to
support States in improving results for children with disabilities,
while continuing to assist States in ensuring compliance with IDEA's
requirements. We believe that an effective accountability system is
attentive to both goals. High quality results do not mitigate a State's
responsibility to comply with the statute, just as compliance with the
statute does not reduce the imperative for States to achieve improved
results for children with disabilities. While significant
disproportionality has not been included as a compliance indicator in
the SPP/APR, States are still responsible for complying with IDEA
section 618(d) (20 U.S.C. 1418(d)), and for ensuring that LEAs
identified with significant disproportionality carry out the statutory
remedies. Nothing in the regulations changes these obligations, and the
Department maintains its responsibility to monitor and enforce the
implementation of this requirement.
Changes: None.
II. A Standard Methodology for Determining Significant
Disproportionality (Sec. 300.647)
General
Comments: The Department received several comments in support of
proposed Sec. 300.647(b), which would require States to follow a
standard methodology to identify significant disproportionality in the
State and the LEAs of the State. Many supported particular features of
the proposed methodology, including the use of a standard method to
compare racial and ethnic groups and minimum n-size requirements, and
others expressed support for having a general or common methodology.
One commenter also noted that proposed Sec. 300.647(b) addressed
the GAO's recommendation to develop a standard approach for defining
significant disproportionality. One commenter described observing
racial and ethnic disparities within LEAs that went unaddressed by
States and that State definitions of significant disproportionality
were so complex that they were difficult to comprehend. Other
commenters stated that the standard methodology in proposed Sec.
300.647(b) would provide much needed clarity and draw attention to
potentially inappropriate policies, practices, and procedures for the
identification, placement, and discipline of children with
disabilities. Some of these commenters stated that common standards are
the only way for the public and the Department to judge the efforts of
the States and to ensure transparency in this area.
Discussion: The Department appreciates the comments in support of
the creation of a standard methodology to identify significant
disproportionality in the identification, placement, and discipline of
children with disabilities. We agree that these regulations will help
to improve comparability of significant disproportionality
determinations across States, increase transparency in how States make
determinations of LEAs with significant disproportionality, improve
public comprehension of a finding of significant disproportionality (or
lack thereof), and address concerns raised by the GAO.
Changes: None.
Comments: Many commenters expressed concern that the standard
methodology is unnecessary, has not been sufficiently reviewed, or
should be further researched before its adoption is required to prevent
potential harm to States that already address significant
disproportionality well. Another
[[Page 92395]]
commenter argued that, without substantive analysis of the intended and
unintended results, it was premature to implement the standard
methodology at a national level. Further, the commenter recommended
that the standard methodology be subject to a pilot test to explore
fiscal, data analysis, and systems change issues after a full review of
public comment. Another commenter recommended that the Department
postpone issuing these regulations until it had better knowledge of
appropriate methods for measuring racial differences. One commenter
acknowledged the complexity involved in measuring racial and ethnic
disparities but stated that there is no reason why a measurement
strategy cannot be selected, implemented, and studied after the
regulations are in place. The Department interpreted this comment to
suggest that is not necessary to study, or pilot, a particular method
of measuring racial and ethnic disparities before State use of the
method is required by regulation.
Discussion: The Department appreciates all of the comments about
Sec. 300.647(b). However, for the reasons that follow, we do not
believe it is necessary to remove the requirement that States use the
standard methodology in Sec. 300.647 to determine if significant
disproportionality based on race and ethnicity is occurring in the
State and LEAs of the State. Further, we disagree with commenters'
concerns that the standard methodology requires further research before
being implemented or could cause substantial harm to States that are
doing well in addressing significant disproportionality.
In developing the standard methodology, the Department drew heavily
from current State practices. As we noted in the NPRM, most States, as
part of their methodology for comparing racial and ethnic groups for
the purpose of identifying significant disproportionality, already use
a version of the risk ratio, a minimum n-size or cell size, a threshold
over which LEAs are identified with significant disproportionality, and
up to three years of data when making an annual determination.
States also have flexibility to tailor the standard methodology to
the needs of their populations. This flexibility includes the ability
to set reasonable risk ratio thresholds and reasonable minimum cell
sizes and n-sizes (all with input from stakeholders, including the
State Advisory Panel), the choice to use up to three years of data
before making a determination of significant disproportionality, and
the option to not identify LEAs that exceed the risk ratio threshold
but are making reasonable progress under Sec. 300.647(d)(2) in
lowering their risk ratios in each of the two prior consecutive years.
We provided this flexibility because we believe it is appropriate for
States to tailor their implementation of these regulations to their
unique circumstances--and, as they feel necessary, make adjustments--
rather than delay the implementation of the regulations. Nothing in the
regulations prohibits States from changing their risk ratio thresholds,
population requirements, or flexibilities in accordance with Sec.
300.647 if, after implementation of the regulations, they determine
that reasonable adjustments are needed.
The Department appreciates the suggestion that States pilot the
standard methodology and analyze its effects prior to adopting the
regulations nationwide; however, we decline to accept the suggestion.
Given that the standard methodology is largely based on approaches
currently in use among States, we agree with the commenter who asserted
that additional study of the standard methodology after the regulations
are in place, rather than before, is appropriate. Accordingly, we plan
to evaluate the impact of these regulations, including the implications
of using risk ratios to compare racial and ethnic groups. We also
believe that the considerable flexibility provided to States will allow
researchers to collect and study valuable data regarding different
applications of the standard methodology across States.
Changes: None.
Comments: One commenter suggested that the States' loss of
flexibility to define significant disproportionality may create other,
more significant forms of inequity and inappropriate identification.
The commenter did not further detail the types of inequity that might
arise.
Discussion: While Sec. 300.647(b) requires that all States follow
a standard methodology to identify significant disproportionality, we
believe that these regulations provide States with sufficient
flexibility to tailor their implementation to their unique
circumstances. This flexibility includes the ability to set reasonable
risk ratio thresholds, reasonable minimum cells sizes and n-sizes (with
input from stakeholders, including the State Advisory Panel), the
choice to use up to three years of data before making a determination
of significant disproportionality, and the option to not identify LEAs
that exceed the risk ratio threshold but are making reasonable progress
under Sec. 300.647(d)(2) in lowering their risk ratios in each of the
two prior consecutive years.
Changes: None.
Comments: Numerous commenters noted that each State's
disproportionality processes have been approved by the Department and
recommended that, in lieu of these regulations, the Department address
any concerns regarding disproportionality, or definitions of
significant disproportionality, State by State.
Discussion: The Department does not believe that approach would
achieve the goals of improved transparency and consistency among
States. We believe that the standard methodology adopted in these final
regulations is a necessary step to achieve those goals.
Changes: None.
Comments: One commenter was concerned about the Department's
contention that States' current methodologies of identifying
significant disproportionality were inappropriate, given that the
Department's contention is based on a data analysis that uses a
methodology different from the States' methodologies.
Discussion: The Department disagrees that the basis for these
regulations is a single analysis conducted by the Department. The
standard methodology provides basic guidelines to facilitate greater
consistency among States, consistent with the GAO's recommendations,
and to promote greater transparency in State efforts to address
significant disproportionality. The recommendations of the GAO, public
comments the Department received in a response to a 2014 request for
information (79 FR 35154), and the Department's review of State
definitions of significant disproportionality all informed the
Department's decision to require that all States follow a standard
methodology.
Comments: One commenter stated that, because there is no
flexibility once an LEA is identified with significant
disproportionality, States make decisions about their methodologies to
ensure LEAs are not inappropriately identified for arbitrary factors
unrelated to policies, practices, and procedures.
Discussion: While it is important for States to appropriately
identify LEAs for significant disproportionality, we disagree with the
commenter that identification of significant disproportionality is
arbitrary if it is based on factors unrelated to an LEA's policies,
practices, or procedures. IDEA section 618(d) (20 U.S.C. 1418(d)) is
not intended solely to address significant disproportionality that
results from inappropriate policies, practices, or
[[Page 92396]]
procedures. Under IDEA section 618(d)(2) (20 U.S.C. 1418(d)(2)), a
review of policies, practices, and procedures is a consequence of, not
a part of, a determination of significant disproportionality. Under
this provision, once LEAs are identified with significant
disproportionality, States are required to ensure the review and, if
appropriate, revision of the LEAs' policies, practices, and procedures
to ensure they comply with IDEA.
Changes: None.
Comments: One commenter argued that the ability to make comparisons
among States, if that is the Department's goal with these regulations,
does not result in meaningful discussion or problem-solving as each
State is unique.
Discussion: By requiring that all States follow a standard
methodology, it is the Department's intent to foster greater
comparability in the approaches States use to identify significant
disproportionality. While States will have flexibility to determine
their own reasonable risk ratio thresholds, to determine reasonable
population requirements, such as a minimum n-size or cell size, and to
use up to three consecutive years of data, we believe the standard
methodology provides comparability that is key to promoting
transparency in the States' implementation of IDEA section 618(d), and,
in turn, meaningful discussion with stakeholders and State Advisory
Panels regarding the State's progress in addressing significant
disproportionality. These comparisons among States are currently not
possible, given, for example, the vastly different methods States
currently use to compare racial and ethnic groups, as was described in
the NPRM.
Changes: None.
Comments: One commenter expressed concern that the Department's
standard methodology is inconsistent with IDEA. The commenter stated
that, when reauthorizing IDEA in 2004, Congress expanded the law's
focus on issues related to disproportionality by including
consideration of racial disparities and by adding certain enforcement
provisions out of a ``desire to see the problems of over-identification
of minority children strongly addressed.'' The commenter noted that
Congress did not define the term ``significant disproportionality'' or
impose a methodology to determine whether significant
disproportionality based on race or ethnicity in the State and its LEAs
is occurring. According to the commenter, each State was left to choose
its own methodology for determining whether there is significant
disproportionality in the State and its LEAs with respect to
identification, placement, and discipline of racial and ethnic minority
children with disabilities. The commenter argued that this intent was
reflected in final IDEA Part B regulations, promulgated by the
Department in August 2006, which stated that ``[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
genera1.'' The commenter stated that, in 2006, the question of whether
to impose a methodology for determining significant disproportionality
was rejected by the Department as inconsistent with the law. The
commenter also argued that an expansion of the Department's authority
to determine whether States' risk ratio thresholds are reasonable
conflicts with congressional intent, as the law does not support a
national standard for determining significant disproportionality. Other
commenters expressed similar concerns, stating that proposed Sec.
300.647(b) was an example of Federal overreach--an improper attempt to
control local education.
Discussion: We agree with the commenter that, at the time of the
2006 regulations, the Department declined to include a definition of
significant disproportionality in the regulations. At the time, the
Department stated that there are multiple factors to consider in making
a determination of significant disproportionality--such as population
size, the size of individual LEAs, and composition of State
population--and determined that States were in the best position to
evaluate those factors. 71 FR 46738. However, the Department did not
state that a definition of significant disproportionality would be
inconsistent with the law.\2\
---------------------------------------------------------------------------
\2\ In the 2006 IDEA regulation, just prior to the Department's
discussion regarding a definition of significant disproportionality,
the Department did note that another commenter's suggestion was
inconsistent with IDEA. This commenter had proposed that the
Department amend the regulation to clarify that the determination of
significant disproportionality should be based on a review of LEA
policies and procedures, and not just a numerical determination. 71
FR 46738.
---------------------------------------------------------------------------
The fact that the Department chose not to regulate on these issues
in 2006, based on information and experience available at the time,
does not preclude the Department from doing so now under our authority
to issue regulations under IDEA section 607(a) (20 U.S.C. 1406(a)).
Under IDEA section 618(d)(1) (20 U.S.C. 1418(d)(1)), States must
collect and examine data to determine each year whether significant
disproportionality based on race and ethnicity is occurring in the
State and its LEAs with respect to the identification, placement, and
discipline of children with disabilities. The Department has the
authority to issue regulations to the extent regulations are necessary
to ensure compliance with the requirements of Part B of IDEA (IDEA
section 607(a) (20 U.S.C. 1406(a)). As we noted in the NPRM, the
Department concurs with findings by the GAO that the variability in
State definitions of significant disproportionality has made it
difficult to assess the extent to which States are appropriately
identifying LEAs with significant disproportionality. Based on the
GAO's findings, comments received in response to a June 2014 request
for information on addressing significant disproportionality under IDEA
section 618(d), and the field's experience with IDEA section 618(d)
over the last 12 years, the Department now believes that these proposed
changes are necessary to ensure that States meaningfully identify LEAs
with significant disproportionality and that the statutory remedies are
implemented in a manner that addresses any significant
disproportionality identified.
We do not believe that standardization of an analysis required
under a Federal statute, consistent with the authority provided to us
in that same statute, while providing a great deal of flexibility to
States, constitutes Federal overreach. Nothing in these regulations
requires the adoption of particular educational practices at the local
level or seeks to exert control of local education decision-making.
Changes: None.
Comments: One commenter noted that Directed Questions #5, #9, #10,
and #12 all inquire whether the Department should place future
mandates, requirements, or restrictions upon the States relating to
creation of risk ratio thresholds or State flexibility to define
``reasonable progress.'' The commenter stated that additional Federal
oversight in the form of mandates, requirements, or restrictions is
unwarranted and inappropriate. The commenter claimed the States and
their respective State boards or departments of education are most
knowledgeable about the issues affecting them. As such, the commenter
argued that those issues are best left to the discretion of individual
States.
Discussion: As the Department has explained in detail, both in the
NPRM and in this document, we believe these regulations are necessary
to ensure consistent State action in examining LEAs for significant
disproportionality based on race and ethnicity in the identification,
placement, and discipline of children with disabilities. Again, as the
GAO found in its 2013
[[Page 92397]]
study, only two percent of more than 15,000 LEAs nationwide were
required in SY 2010-11 to provide comprehensive CEIS, and the
Department found, in SY 2012-13 that 22 States did not identify any
LEAs as having significant disproportionality.
That said, we agree that flexibility is necessary for States, and
these final regulations give States the flexibility to determine
reasonable risk ratio thresholds, reasonable minimum cell sizes and n-
sizes, and standards for reasonable progress after consultation with
stakeholders and State Advisory Panels. Section 300.647(d) of the final
regulations provides additional flexibilities to States.
Under Sec. 300.647(d)(1) a State is not required to identify an
LEA with significant disproportionality until it has exceeded the risk
ratio threshold set by the State for up to three years. Under Sec.
300.647(d)(2), a State is not required to identify an LEA that has
exceeded the risk ratio threshold with significant disproportionality
until the LEA ceases to make reasonable progress in lowering its risk
ratio in each of two prior consecutive years.
Changes: None.
Comments: One commenter stated that it is discriminatory to create
a formula for how many children of color can be identified as having
disabilities. Another commenter stated that the Department's proposal
would force LEAs to serve children based on the Department's
understanding of how many children should be served, rather than on the
individual needs of each child. A number of commenters argued that
individual children need to be assessed without consideration of their
race, ethnicity, socioeconomic status, sexual orientation, or gender.
Discussion: The Department agrees with commenters that the
determination of whether a child is eligible for special education
services must not include consideration of his or her race, ethnicity,
socioeconomic status, sexual orientation, or gender, or any numerical
formula associated with these characteristics. LEAs must also follow
specific evaluation procedures under IDEA section 614(b) (20 U.S.C.
1414(b)) to determine a child's eligibility for special education
services.
However, we disagree that the standard methodology under Sec.
300.647(b) represents a formula indicating how many children of color,
or children in general, may be identified as children with
disabilities. As we note elsewhere in this section, we believe that
restricting the ability to make eligibility determinations by imposing
artificial numerical targets on the groups responsible for making
eligibility determinations under Sec. 300.306(a)(1) is inconsistent
with IDEA. The standard methodology is not intended to guide
determinations of eligibility for special education; rather, it is
designed to help States to appropriately determine whether significant
disproportionality, based on race and ethnicity, is occurring within an
LEA with respect to the identification, placement, and discipline of
children as children with disabilities. For LEAs determined to have
significant disproportionality, the statute requires that the State
provide for a review, and, if necessary, revision of policies,
practices, and procedures to ensure compliance with IDEA and require
each LEA to implement comprehensive CEIS to address the factors
contributing to the significant disproportionality.
Changes: None.
Comments: One commenter stated that the proposed regulations do
little to address significant disproportionality and that the only way
to address disparities in identification is to provide guidance to
States and LEAs on the appropriate identification of children with
disabilities from diverse backgrounds.
Discussion: While we generally agree that guidance about the
appropriate identification of children with disabilities would be
helpful to States and LEAs, we do not believe it is the only way to
address disparities in identification. By requiring States to use a
standard methodology, it is our intent to help States to make more
appropriate determinations of significant disproportionality, and,
consistent with IDEA section 618(d)(2)(A) (20 U.S.C. 1418(d)(2)(A)),
help ensure that LEAs identified with significant disproportionality
undergo a review, and, if necessary, revision, of policies, practices,
and procedures to ensure compliance with IDEA. We believe that guidance
regarding the appropriate identification of children as children with
disabilities will be more valuable when paired with strategies that
require LEAs determined to have with significant disproportionality to
take steps to review their policies, practices, and procedures.
Consistent with the commenters' suggestion, it is the Department's
intent to publish guidance to help schools to prevent racial
discrimination in the identification of children as children with
disabilities, including over-identification, under-identification, and
delayed identification of disabilities by race.
Changes: None.
Comments: A large number of commenters opposed the standard
methodology based on their view that any standard method for
calculating disproportionality is inherently flawed because numbers and
data cannot reveal the cause of the disproportionality.
Discussion: While we agree with commenters that data analysis does
not identify or address the causes of numerical disparities, the
identification of LEAs as having significant disproportionality
nevertheless is a first step that will require LEAs to identify and
address the causes of the significant disproportionality. Under Sec.
300.646(d)(1)(ii), in implementing comprehensive CEIS, LEAs identified
with significant disproportionality are required to identify and
address the factors contributing to the significant disproportionality.
Changes: None.
Comments: Many commenters stated that any rules to address
disproportionality in special education must be based on solid
theoretical foundations and research-based, reliable mechanisms for the
identification of disproportionality that are not skewed by extraneous
factors and not based on single, arbitrary calculations.
Discussion: While we generally agree that efforts to address racial
and ethnic disparities in special education should be informed by
research, theory, and reliable data, we also interpret IDEA section
618(d) to require States to make a determination of significant
disproportionality based on a numerical calculation and to take
specific steps to address any significant disproportionality
identified. This has been our long-standing position and we believe
that it is the best interpretation based on the language in section
618(d) that requires States to collect and examine ``data'' to
determine if significant disproportionality is occurring. Congress
placed the significant disproportionality provision in section 618(d)
and under section 618(a), States are required to provide ``data'' on
the number and percentage of children with disabilities by race and
ethnicity who are: Receiving FAPE; participating in regular education;
in separate classes, separate schools or residential facilities;
removed to interim alternative education setting; and subject to long-
term suspensions and expulsions and other disciplinary actions. To
develop a standard methodology consistent with the requirements of IDEA
section 618(d), the Department drew heavily from current State
practices implemented and adjusted over the course of the 12 years
since the last reauthorization of IDEA.
[[Page 92398]]
As we noted in the NPRM, most States, as part of their methodology for
comparing racial and ethnic groups for the purpose of identifying
significant disproportionality, already use a version of the risk ratio
and a threshold over which LEAs are identified with significant
disproportionality. Further, States use population requirements--such
as a minimum n-size or cell size--and up to three years of data when
making an annual determination to offset the volatility of risk ratios.
The standard methodology under Sec. 300.647 includes these
features, but also provides States with flexibility to tailor them to
the needs of their populations. This flexibility includes the ability
to set reasonable risk ratio thresholds, reasonable minimum cell sizes
and n-sizes (with input from stakeholders, including the State Advisory
Panel), the choice to use up to three years of data before making a
determination of significant disproportionality, and the option to not
identify LEAs that exceed the risk ratio threshold but are making
reasonable progress, under Sec. 300.647(d)(2), in lowering their risk
ratios in each of the two prior consecutive years.
Given that the standard methodology is largely based on approaches
currently in use among States and includes a large degree of
flexibility, it will help States to make appropriate, and not
arbitrary, determinations of significant disproportionality.
Changes: None.
Comments: Several other commenters requested that the analysis for
significant disproportionality include not only a risk ratio or other
mathematical calculation but also a review of factors such as
inappropriate identification, discriminatory practices, State
performance indicators, graduation rates, and academic performance. One
commenter suggested that the Department use a two-step approach to
ensure that States are focusing on LEAs where compliance indicators may
have impacted the performance of children with disabilities. The
Department would first examine performance indicators and identify
agencies significantly discrepant from the median. This information
would then be combined with data from compliance indicators, including
information on disproportionality, to determine how to provide States
and LEAs with technical assistance and support. A few commenters
suggested that LEAs first undergo a review for discriminatory
practices, and, if none exist, no further action should be taken.
Discussion: Based on the plain language of IDEA section 618(d) (20
U.S.C. 1418(d)), States are required to make a determination of whether
significant disproportionality, based on race and ethnicity, is
occurring by collecting and examining data. We interpret this language
to limit States' determinations of significant disproportionality to a
review of the numerical disparities between racial and ethnic groups
with respect to identification, placement, and discipline. Given this
language, we do not believe it would be consistent with IDEA to allow
the multi-factor standard methodology for determining significant
disproportionality that the commenters suggested.
Changes: None.
Comments: Several commenters argued that, if States must adopt a
standard methodology for determining significant disproportionality,
then States need greater flexibility to exempt LEAs from reserving Part
B funds for comprehensive CEIS.
Discussion: Once an LEA has been determined to have significant
disproportionality in identification, placement or discipline, the LEA
is required under IDEA section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B))
to reserve the maximum amount of funds under section 613(f) to provide
comprehensive CEIS. IDEA does not include any provision that would
allow the Department or States to waive the statutory remedies for LEAs
identified with significant disproportionality.
Changes: None.
Comments: Some commenters likened the standard methodology to a
one-size metric that would fail to account for factors that might
influence measurements of significant disproportionality. These
include, according to one commenter, the size of the LEA, its location,
and the popularity of an LEA's programs. Similarly, one commenter noted
that data may be misinterpreted in a one-size-fits-all model,
especially where there are outliers that do not fit the model.
Discussion: The Department disagrees with the assertion that the
proposed standard methodology is a one-size-fits-all approach to
identifying significant disproportionality. The final regulations
provide States with a great deal of flexibility within the standard
methodology to identify significant disproportionality only in those
LEAs with the greatest racial and ethnic disparities.
Section 300.647(b)(1) of the final regulations requires States to
set reasonable risk ratio thresholds to determine the threshold above
which an LEA may be identified with significant disproportionality and
to determine reasonable minimum cell sizes and n-sizes to exclude from
their review for significant disproportionality those racial and ethnic
groups within LEAs with too few children to calculate stable risk
ratios. These standards must be based on advice from stakeholders,
including State Advisory Panels. Section 300.647(d)(1) of the final
regulation allows States flexibility not to identify an LEA until it
has exceeded the risk ratio threshold for up to three consecutive
years. Lastly, Sec. 300.647(d)(2) allows States not to identify LEAs
that exceed the risk ratio thresholds if LEAs are making reasonable
progress in lowering their risk ratios in each of the two prior
consecutive years.
Changes: None.
Comments: Many commenters requested that the standard methodology
be flexible enough to allow LEAs to appeal any findings of significant
disproportionality that are outside the control of school personnel.
One commenter requested that the Department establish a waiver system,
whereby LEAs could exceed risk ratio thresholds for the identification
of children with disabilities without a finding of significant
disproportionality, so long as the LEAs provide adequate justification.
Another commenter suggested that LEAs with specialized programs,
when identified with significant disproportionality, have the option to
submit an explanation to the State as to why their numerical
disparities are not indicative of any inappropriate identification,
placement, or discipline of children. The commenter suggested that the
State then consider this explanation, along with compliance data, to
determine whether a finding of significant disproportionality is
appropriate.
Two commenters requested that States have flexibility to consider
mitigating circumstances; the commenters shared that, as a result of
one LEA's location near a children's hospital, the LEA has an
identification rate for autism much higher than the State rate.
Discussion: The Department appreciates the request to create a
waiver and appeals system for certain LEAs with risk ratios above the
State-selected risk ratio threshold. However, IDEA does not allow for
such a system, and we believe there are sufficient flexibilities in the
final regulations to address the commenters' underlying concerns.
Further, the Department believes that, even if it had the authority
[[Page 92399]]
to allow this system, it would be inconsistent with the goal of
maximizing consistent enforcement of the statute and comparability of
data across States, which were issues raised by the GAO.
Changes: None.
Comments: Several commenters included a request that States be
allowed to waive the requirements of IDEA section 618(d) for very small
LEAs.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and analyze data to determine whether significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State. There is no provision in the statute
that allows a State to exempt an LEA from this analysis solely because
of the size of its overall enrollment.
However, with these regulations, it is our goal to help ensure that
LEAs with significant disproportionality based on race and ethnicity in
identification, placement, or discipline are appropriately identified
and that the significant disproportionality is appropriately addressed.
For certain racial and ethnic groups within small LEAs, specifically
those groups with very small populations, the risk ratio method of
measuring significant disproportionality is susceptible to volatility--
the possibility that small changes in population will result in large
changes in the risk ratio that do not represent any systemic problems
giving rise to significant disproportionality. Therefore, in order to
ensure that LEAs are not inappropriately identified because their data
would not produce valid results, Sec. 300.647(c) of the final
regulation allows States to exclude from their review any racial and
ethnic groups within LEAs that do not meet the State-set population
requirements. This is consistent with various IDEA provisions that
require States and LEAs to use valid and reliable data when meeting
IDEA requirements. (See, IDEA section 614(b)(3)(A)(iii), requiring
public agencies to use assessments that are valid and reliable; IDEA
section 616(b)(2)(B)(i), requiring States to report valid and reliable
data in their State Performance Plans/Annual Performance Reports (SPPs/
APRs); and IDEA section 616(i)(1), requiring the Secretary to review
the data collection and analysis capacity of States to ensure that data
and information determined necessary for implementation of section 616
is collected, analyzed, and accurately reported to the Secretary).
Changes: None.
Comment: Several commenters requested that States be allowed to
waive the standard methodology in proposed Sec. 300.647(b) in
extraordinary circumstances, including environmental disasters that may
impact children's health, such as the recent water contamination in
Flint, Michigan. Other commenters urged the Department to allow States
discretion to determine the appropriate set-aside amount if an LEA is
suffering both a fiscal and environmental crisis, or if there should
even be a set-aside for LEAs that are recovering from a substantial
health or environmental crisis, as the demand for basic special
education programs and services for eligible children may be extremely
high. One commenter urged the Department to consider the needs of
children in these circumstances, rather than simple measures of
disparity, to determine whether the identification of significant
disproportionality is appropriate.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and examine data to determine if significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State. A specific exemption for LEAs that
have experienced an environmental disaster, or other extraordinary
circumstances, is not contemplated under IDEA. We think it would be
inappropriate to assume that all such crises would create, or worsen,
prolonged and significant racial and ethnic disparities in special
education. Therefore, we do not think it would be appropriate to exempt
LEAs that have experienced an environmental disaster or other
extraordinary circumstances from the analysis for significant
disproportionality.
If an LEA is identified with significant disproportionality, IDEA
section 618(d)(2) (20 U.S.C. 1418(d)(2)) requires the State to provide
for the review and, if necessary, revision, of the LEA's policies,
practices, and procedures to ensure they comply with IDEA. The section
also requires the LEA to publicly report on any revisions and reserve
15 percent of its IDEA Part B funds to provide comprehensive CEIS.
Specifically, IDEA section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B))
requires an LEA identified with significant disproportionality to
reserve the maximum amount of funds under IDEA section 613(f), which is
15 percent of its IDEA Part B funds, to provide comprehensive CEIS.
Therefore, the Department does not have the authority to allow LEAs to
adjust the amount that they are required to reserve for comprehensive
CEIS.
Changes: None.
Comments: Some commenters shared their concerns that LEAs with a
high population turnover due to highly mobile families or school choice
might be inappropriately identified with significant disproportionality
under the standard methodology in Sec. 300.647(b). One commenter
suggested that, if a school's mobility rate is significantly higher
than the State average, the standard methodology should not be applied.
One commenter argued that there is nothing that an LEA can do to
address significant disproportionality when it is the result of
children simply enrolling or moving into the LEA. Another commenter
requested that the Department address the issue of transfers, both
interstate and intrastate, and their potential impact on findings of
significant disproportionality. One commenter stated that, in one LEA,
families are transient due to military connections, making it highly
likely that the children transferring into the LEA were identified with
a disability outside of the LEA. One commenter supported the exclusion
of transfer children from the LEA counts of children with disabilities
used to determine significant disproportionality. Last, one commenter
opposed the omission of highly mobile children from the State's review
for significant disproportionality because children transfer in and out
of LEAs, and, in general, this movement does not result in a
significant net gain in children. Further, the commenter argued that
omitting those children from the analysis would be burdensome for
States.
Discussion: The Department recognizes that particular LEAs are more
likely to serve high numbers of highly mobile children, including
children of military families. In such LEAs, it is particularly likely
that eligibility determinations were initially made by LEAs other than
the one currently providing special education and related services to
the student. Highly mobile children include children experiencing
frequent family moves into new school districts, such as military-
connected children, migrant children, children in the foster care
system, and children who are homeless. There is no reason States cannot
determine, in accordance with Sec. 300.647, whether significant
disproportionality is occurring in LEAs with highly mobile children. To
the extent that highly mobile children make an LEA vulnerable to large
swings in the risk ratio from year to year, the standard methodology
will help to prevent inappropriate identification due to rapid changes
in enrollment by allowing States to take into consideration up to
[[Page 92400]]
three years of data prior to making a determination of significant
disproportionality.
However, under IDEA section 614(a)(1) (20 U.S.C. 1414(a)(1)), all
children who are suspected of having a disability and who are in need
of special education and related services, including highly mobile
children, must be evaluated in a timely manner and without undue delay
so that eligible children can receive a free appropriate public
education (FAPE). (34 CFR 300.101, 300.111, and 300.201.) When a child
transfers to a new school district in the same school year, whether in
the same State or in a different State, after the previous school
district has begun but has not completed the evaluation, both school
districts must coordinate to ensure completion of the evaluation. This
must occur as expeditiously as possible, consistent with applicable
Federal regulations. Under IDEA section 614(a)(2)(B) (20 U.S.C.
1414(a)(2)(B)), all LEAs are required to reevaluate each child with a
disability not more frequently than once a year, and at least once
every three years, unless the child's parent and the LEA agree
otherwise. As such, each LEA must ensure, through proper implementation
of its child find procedures, appropriate identification and placement
of all children with disabilities for whom it is responsible for making
FAPE available, regardless of how long that child has resided in the
LEA.
For this reason, and because providing that exception would be
particularly complex and burdensome to implement, the Department
declines the recommendation to exempt highly mobile children, or to
exempt LEAs with large numbers of mobile children, from the State's
analysis for significant disproportionality.
Changes: None.
Comments: A few commenters urged the Department to allow States, in
implementing Sec. 300.647(b)(3), to count only those children with
disabilities identified by the LEA. Of these, one commenter noted that
it would not be fair for LEAs to be held accountable for children who
are not identified by the LEA's own school personnel. Another commenter
stated that there are some LEAs, such as vocational LEAs and charters
schools, that educate children with disabilities identified by other
LEAs. According to the commenter, these LEAs are often identified with
disproportionate representation and would likely be inappropriately
identified with significant disproportionality under the Department's
proposed standard methodology. Similarly, another commenter recommended
that States have flexibility to determine if the disproportionality
based on race or ethnicity is due not to the actions of the LEA but to
disparities in the enrollment of children previously identified with
disabilities.
Discussion: Children with disabilities, like all children, may
transfer from school to school for a variety of reasons, ranging from a
family relocation--including relocations related to the military--to
homelessness, foster care, or because they are members of migrant
families, to name a few. The Department has provided guidance to States
regarding how they should collect and report IDEA section 618 data,
including child count data. As explained in the guidance, children who
reside in one LEA but received services in another LEA should be
reported by the LEA that has responsibility for providing a free
appropriate public education to the children. OSEP Memorandum 08-09,
Response to Question 18 and FILE C002, 2013. In general, the Department
expects that States will use the same data annually submitted to the
Department under IDEA section 618 to make determinations of significant
disproportionality.
Further, as we discussed elsewhere in this section, the Department
believes that the standard methodology contains sufficient flexibility
to prevent the inappropriate identification of LEAs with specialized
programs as having significant disproportionality.
Changes: None.
Comments: Many commenters requested that States have the
flexibility to exempt an LEA from examination for significant
disproportionality under IDEA section 618(d) if the LEA houses any
residential facilities, foster homes (or high numbers of children in
foster care), or group homes. One commenter stated that the standard
methodology does not properly account for residential placements and
the locations of facilities, including incarcerated children.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and examine data to determine if significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State. However, a specific exemption for LEAs
that house residential facilities, foster homes, or group homes is not
contemplated under IDEA. We also do not believe that exemption would be
appropriate. There could be significant racial and ethnic disparities
in LEAs that house residential facilities, foster homes, or group
homes, and nothing prevents the State from doing a reliable data
analysis in those LEAs. For these reasons, the Department declines to
exempt an LEA from examination for significant disproportionality under
IDEA section 618(d) if it houses any residential facilities, foster
homes (or high numbers of children in foster care), or group homes.
The Department has previously provided guidance on how children
with disabilities placed in a residential facility or group home by an
educational or noneducational agency should be counted for the purpose
of calculating significant disproportionality. All children with
disabilities placed in a residential facility or group home in the same
State by an educational agency must be included in the calculation of
significant disproportionality. However, a State should assign
responsibility for counting children with disabilities placed in out-
of-district placements to the LEA that is responsible for providing
FAPE for those children, rather than the LEA in which the child has
been placed.
Children with disabilities placed in a residential facility or
group home in a different State by an educational agency should be
included in a State's calculation of significant disproportionality in
the LEA responsible for providing FAPE for that child (the placing
LEA).
Children with disabilities placed in residential facilities or
group homes in the same State by a noneducational agency (e.g., court
systems; departments of corrections; departments of children, youth and
families; departments of social services; etc.) may be excluded from a
State's calculation of significant disproportionality if the State has
valid and reliable procedures for determining which children should be
excluded.
Children with disabilities placed in a residential facility or
group home in a different State by a noneducational agency (e.g., court
systems; departments of corrections; departments of children, youth and
families; departments of social services; etc.) may be excluded from
the calculation of significant disproportionality by both the State in
which the child resides and the State where the residential facility or
group home is located, if the State has valid and reliable procedures
for determining which children should be excluded. (See, IDEA section
618(d); Questions and Answers on Disproportionality, June 2009,
Response to Question B-1.)
Changes: None.
Comments: One commenter shared that, in one State, only LEAs--and
not State-run facilities or group homes housed within LEAs--are
accountable for significant disproportionality.
[[Page 92401]]
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and examine data to determine whether the LEAs within the
State have significant disproportionality. In general, the term ``local
educational agency'' means a public board of education or other public
authority legally constituted within a State for administrative control
or direction of, or to perform a service function for, public
elementary schools or secondary schools in a city, county, township,
school district, or other political subdivision of a State, or for such
combination of school districts or counties as are recognized in a
State as an administrative agency for its public elementary schools or
secondary schools. (See, IDEA section 602(19) (20 U.S.C. 1401(19) and
34 CFR 300.28).) For this reason, we do not expect States to determine
whether State-run facilities or group homes housed within LEAs have
significant disproportionality, unless those facilities or group homes
are LEAs under Sec. 300.28.
Changes: None.
Comments: A number of commenters responded to Directed Question #1
in the NPRM, which requested public input about the appropriate
application of the standard methodology to LEAs serving only children
with disabilities and LEAs with special schools and programs. We
received comments with varying suggestions.
Several commenters stated that special schools and programs should
be excluded from a State's review of an LEA for standard methodology,
whereas others stated that these special schools must be included.
Numerous commenters opposed to including special schools or programs in
the identification of significant disproportionality stated that States
should have discretion to include children in specialized schools in
their review for significant disproportionality. One commenter stated
that, in one State, only LEAs are held accountable for significant
disproportionality--not schools serving only children with disabilities
or offering specialized programs. Another commenter inquired whether
programs serving children with disabilities from multiple LEAs should
be excluded from the State's determination of significant
disproportionality.
One commenter noted that, while LEAs specially constituted as
special education LEAs may have the appearance of disproportionality,
these LEAs have legitimate reasons for overrepresentation of certain
racial and ethnic populations. One commenter stated that the standard
methodology cannot be used, as the risk ratio cannot be calculated, for
an LEA that enrolls only children with disabilities. This commenter
suggested that States monitor disproportionality in those LEAs through
performance reports.
Discussion: The Department disagrees with the commenters that
requested that LEAs with specialized schools or programs, and the
children within those schools or programs, should be excluded from a
review of significant disproportionality. IDEA section 618(d)(1) (20
U.S.C. 1418(d)(1)) requires States to collect and examine data to
determine whether significant disproportionality based on race and
ethnicity is occurring in the State and the LEAs of the State. As a
general matter, therefore, if a special school or program is an LEA,
consistent with the definition of LEA in Sec. 300.28, and serves
children with and without disabilities, the State must apply the
standard methodology in Sec. 300.647 to determine if significant
disproportionality is occurring in that LEA, and all of the remedies in
Sec. 300.647(c) and (d) apply.
However, the Department has carefully considered the commenters'
concerns about LEAs serving only children with disabilities. In
accordance with IDEA section 618(d)(1) (20 U.S.C. 1418(d)(1)), a State
must annually collect and examine data to determine, using the standard
methodology under Sec. 300.647, if significant disproportionality is
occurring in LEAs that serve only children with disabilities.
Consistent with IDEA section 618(d)(2)(A) and (C), and Sec.
300.346(c), if such an LEA is identified with significant
disproportionality, the State must provide for the review and, if
appropriate, revision of the policies, practices, and procedures used
in identification or placement in particular education settings,
including disciplinary removals, to ensure they comply with the IDEA.
The State must also require the LEA to publicly report on any
revisions.
However, we note that it would be impossible for LEAs that serve
only children with disabilities to comply with the requirement in IDEA
section 618(d)(2)(B) following a determination of significant
disproportionality. Under our interpretation of that section, LEAs must
use at least some of the IDEA Part B funds reserved for comprehensive
CEIS to serve children without disabilities, and we have adopted this
interpretation in Sec. 300.646(d)(3). This would require an LEA that
serves only children with disabilities to reserve IDEA Part B funds to
provide comprehensive CEIS, which under Sec. 300.646(d)(3) must
include services to children without disabilities, a population that
the LEA does not serve. Therefore, an LEA that serves only children
with disabilities is not required to reserve 15 percent of its IDEA
Part B funds to provide comprehensive CEIS.
That said, suggestions that specialized schools or programs that
are housed in an LEA that serves children with disabilities and
children without disabilities or only children with disabilities should
be exempt from the standard methodology are inconsistent with the goal
of addressing significant disproportionality, by race or ethnicity, in
the most restrictive placements. By allowing States to ignore children
in those placements when reviewing LEAs, the Department could
inadvertently create an incentive to place children with disabilities
in special schools--instead of separate classrooms. Further, as noted
earlier, a State should assign responsibility for counting a child who
is placed in a specialized school or program housed in an LEA to the
``placing LEA,'' if that LEA remains responsible for providing FAPE to
that child, rather than to the LEA in which the specialized school or
program is housed.
Changes: The Department has added Sec. 300.646(e) to clarify that
LEAs that serve only children with disabilities are not required to
reserve IDEA Part B funds for comprehensive CEIS.
Comments: A few commenters suggested that States have flexibility
to exclude from their review children with disabilities who are placed
in special schools by non-education agencies, such as courts or mental
health agencies.
Discussion: Children with disabilities placed in special schools in
the same State by a noneducational agency (e.g., court systems;
departments of corrections; departments of children, youth and
families; departments of social services; etc.) may be excluded from a
State's calculation of significant disproportionality, if the State has
valid and reliable procedures for determining which children should be
excluded. Children with disabilities placed in a special school in a
different State by a noneducational agency (e.g., court systems;
departments of corrections; departments of children, youth and
families; departments of social services; etc.) may be excluded from
the calculation of significant disproportionality by both the State in
which the child resides and the State where the residential facility or
group home is located, if each State has valid and reliable procedures
for determining which children should be excluded. (See, IDEA section
618(d); and Questions and Answers on
[[Page 92402]]
Disproportionality, June 2009, Response to Question B-1.)
Changes: None.
Comments: One commenter stated that, while LEAs specially
constituted as special education LEAs may have the appearance of
disproportionality, these LEAs have legitimate reasons for
overrepresentation of certain racial and ethnic populations. Another
commenter suggested that States, when calculating risk ratios for LEAs
with specialized schools, use an alternate method of calculating risk
for the racial or ethnic group of interest. The Department understood
this commenter to suggest that States adjust the denominator used to
calculate risk to include children from the racial or ethnic group from
that LEA and children from the same racial or ethnic group from a
similarly sized LEA without children with disabilities. A few
commenters suggested that States should have discretion to include
additional calculations of disproportionality of the LEAs with special
schools. Commenters in favor of including special schools indicated
that the LEAs are responsible for the children within their LEAs and,
therefore, should be held accountable for those children. One commenter
stated that, because children in one State remain assigned to the LEA
responsible for accountability and reporting purposes, specialized
populations have not had an effect on the State's ability to capture
significant disproportionality data.
One commenter stated that, in its State, the data from the children
placed in the specialized school are included in the receiving LEA's
counts of children. A number of commenters expressed a belief that when
a child is placed in a specialized school, the referring LEA should
retain the child's data for this count. One commenter requested that
the Department clarify the impact of the standard methodology on
programs serving children with disabilities across multiple LEAs, and
clarify the implications of the standard methodology for the LEA in
which the program operates and LEA in which attending children are
residents. The commenter asked about the possibility of sharing
accountability for these children between the resident and operating
(or ``sending'' and ``receiving'') LEAs.
Discussion: The Department considered the different approaches
commenters recommended. As noted earlier, using the standard
methodology under Sec. 300.647, a State must annually collect and
examine data to determine if significant disproportionality is
occurring in LEAs that serve only children with disabilities. However,
we have clarified in Sec. 300.646(e) that LEAs that serve only
children with disabilities are not required to reserve IDEA Part B
funds for comprehensive CEIS.
That said, there is no specific exemption in IDEA section 618(d)(1)
(20 U.S.C. 1418(d)(1)) for LEAs that house special schools and serve
children with and without disabilities or only children with
disabilities. We do not believe an exemption for those LEAs is
appropriate because by allowing States to ignore children in special
schools when reviewing LEAs, the Department could inadvertently create
an incentive to place children with disabilities in special schools
instead of separate classrooms, for example. For these reasons, the
Department declines to exempt LEAs that house special schools and serve
children with and without disabilities or only children with
disabilities from a determination of significant disproportionality
under IDEA section 618(d).
Further, current IDEA section 618 data collection procedures are
consistent with the commenters' recommendation that children with
disabilities placed in a special school should be counted by the LEA
that placed the children in the special school (what one commenter
refers to as the ``sending LEA'') and is responsible for providing FAPE
to the child. (See, FILE C002, 2013 and OMB Control No. 1875-0240.) The
Department expects that States will use the same data annually
submitted under IDEA section 618(a) (20 U.S.C. 1418(a)) to make
determinations of significant disproportionality. Consistent with the
guidelines that govern that reporting, children publicly placed in
special schools should be included in the enrollment counts for the LEA
that is responsible for providing FAPE to the child. FILE C002, 2013.
This means that many children in special schools or programs in LEAs,
to the extent they are publicly placed by another LEA, will not affect
LEAs count of children, for purposes of significant disproportionality,
because these children are already attributed to the LEA responsible
for providing FAPE to the child.
Changes: None.
Comment: Many commenters were concerned that highly regarded
schools for children with disabilities with open enrollment policies
often draw their children from across the State or region. In fact, one
commenter expressed that families might relocate within the borders of
some LEAs with reputations for higher quality services, resources, and
outcomes for a particular disability. This commenter stated that LEAs
are not able to address significant disproportionality by race or
ethnicity that is due to self-selection.
Discussion: The Department appreciates these concerns. However,
data do not exist that could distinguish these LEAs from other LEAs or
determine the intent of families that move into these LEAs. Further,
there is no reason to exclude LEAs from the analysis for significant
disproportionality because parents elect to enroll their children in
LEAs with a reputation for high quality services. Therefore, the
Department declines to create an exception for LEAs that include highly
regarded schools with open enrollment policies that often draw their
children from across the State or region.
Change: None.
Comments: In response to Directed Question #8, which inquired how
best to address significant disproportionality in LEAs with homogenous
populations, we received a few comments that LEAs with homogenous
populations should not be examined for disproportionality, positing
that ``if there is no comparison group, there can be no
disproportionality.'' However, we received more comments that indicated
LEAs with homogenous populations should be included in significant
disproportionality calculations. A few commenters offered that these
LEAs should use an unspecified alternate method in place of, or in
addition to, the standard methodology in proposed Sec. 300.647(b). A
few more commenters offered that these LEAs should use an unspecified
calculation in addition to the standard risk ratio method.
Another commenter suggested that, for LEAs with homogenous
populations, the Department closely analyze the performance data that
States submit and use compliance monitoring to identify problems and
provide technical assistance. Some commenters suggested that the data
from the LEAs with homogenous populations should be compared to
similarly sized LEAs, to a statewide risk ratio, or to national data.
One commenter suggested that the Department allow the use of
alternate calculations to identify instances of significant
disproportionality because, where no comparison group exists, it is not
possible to obtain valid and reliable data by using a risk ratio or
alternate risk ratio calculation. Another commenter suggested that a
different risk ratio method should be used to identify significant
disproportionality in homogenous populations (e.g., urban special
education schools comprised primarily of children from one racial or
[[Page 92403]]
ethnic background), using data from LEAs or other States with more
racially and ethnically diverse populations, yet similar in other
demographic factors.
One commenter suggested that States undertake a longitudinal
examination of homogenous LEAs over a period of five years and only
take action if nearly all individuals from a race or ethnic subgroup
have been identified or disciplined. This commenter disagreed with
suggestions that these LEAs be compared with national or State data and
suggested that comparisons to LEAs of similar size and demographics
would be most appropriate. Two commenters expressed concern that
homogenous LEAs would not fare well under the proposed regulations.
Discussion: The Department appreciates all of these suggestions. We
believe it is important that States review LEAs, whenever possible, for
significant disproportionality, even when LEAs may have homogenous
populations. We do not agree with the suggestion that there cannot be
disparity where there is no comparison group within the LEA. To the
contrary, it is quite possible for children with disabilities from a
particular racial or ethnic subgroup to be identified, disciplined, or
placed in restrictive settings at rates markedly higher than their
peers in other LEAs within the State. The fact that there is no
comparison group within the LEA does not mean that the LEA should not
be reviewed for significant disproportionality, particularly since IDEA
section 618(d)(1) (20 U.S.C. 1418(d)(1)) requires States to determine
whether significant disproportionality is occurring within the State
and the LEAs of the State. For this reason, under Sec. 300.647(a) and
(b)(5), States are required to calculate the alternate risk ratio--
using a State-level comparison group--whenever the comparison group
within the LEA does not meet the States' population requirements. While
we considered commenters' suggestions to allow States to use an
approach other than the alternate risk ratio to examine homogenous
LEAs, we continue to believe that the alternate risk ratio is the
strongest option, given its close similarity to the risk ratio in ease
of calculation and interpretation. As with the risk ratio, we
anticipate that the stability of the alternate risk ratio will be
improved by the flexibility States have to set reasonable population
requirements and use up to three consecutive years of data to identify
significant disproportionality.
However, in reviewing the commenters' feedback, we recognize that
there may be certain situations when using an alternate risk ratio may
not be adequate for evaluating a homogenous LEA. These instances
include homogenous LEAs within homogenous States or unitary systems
where an LEA and its State cover the same geographic area. In a
homogenous unitary system, the risk ratio, which uses an LEA-level
comparison group, and the alternate risk ratio, which uses a State-
level comparison group, would be the same; therefore, if a unitary
system has too small a comparison group to calculate a risk ratio, it
would also have too small a comparison group to calculate the alternate
risk ratio and therefore would produce an unreliable, or meaningless
result. In this situation, we believe that IDEA does not require a
review for significant disproportionality.
Changes: We have added Sec. 300.647(c)(2), which excludes States
from calculating the risk ratio or alternate risk ratio for a racial or
ethnic group when, for both the risk ratio and the alternate risk
ratio, there is an insufficient number of children in all other racial
or ethnic groups to serve as a comparison group.
Comment: One commenter requested that the Department consider a
unique methodology for determining significant disproportionality in
LEAs with clusters of recent immigrants. This methodology should
accommodate the special influences in language and culture, differences
in access to education in immigrants' country of origin, or post-
traumatic stress. A few commenters also noted that, as their LEA is now
home to an office that provides adjustment services to refugees and
immigrants, it may have the appearance of disproportionality even
though it has legitimate reasons for overrepresentation of certain
populations.
Discussion: The Department appreciates these concerns. However,
there is no specific exemption in IDEA section 618(d) (20 U.S.C.
1418(d)(1)) for LEAs with clusters of immigrants. Such an exemption
would not be appropriate because we believe that it is particularly
important to review LEAs with clusters of recent immigrants for
significant disproportionality. Therefore, the Department declines to
create an exception for these LEAs.
Changes: None.
Comment: Several commenters requested that because certain LEAs
have atypical demographic distributions that could create data
anomalies, the Department should exempt certain types of LEAs from
providing comprehensive CEIS and from reviewing, revising, and
publishing, as appropriate, policies, procedures, and practices if
identified with significant disproportionality. Many commenters
asserted that States should have authority to exempt LEAs from these
statutory remedies if there is a small population of children, where
the addition or subtraction of a few children alters a finding of
significant disproportionality. Other commenters requested that LEAs
with very low rates of special education identification, restrictive
placements, or exclusionary discipline for all children should not be
automatically required to set aside funding to provide comprehensive
CEIS. The Department interprets the comment to suggest that LEAs with
very low rates of identification, restrictive placement, and discipline
will likely be identified with significant disproportionality due to
high risk ratios. A few commenters requested further consideration of
how significant disproportionality is applied to States and rural LEAs.
One commenter expressed strong concerns that the regulation would,
without just cause, negatively affect its small, rural LEA, where
children of color make up less than five percent of the school
population.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and analyze data to determine whether significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State.
However, the Department agrees with commenters that LEAs with small
populations or small populations of specific racial or ethnic subgroups
with disabilities, such as those in small rural or charter schools,
could potentially produce risk ratios that are misleading due to
volatility associated with calculating risk ratios for small numbers of
children. The Department appreciates the feedback of commenters and
agrees that a minimum n-size of 10, as proposed in the NPRM, is
insufficient to account for issues related to LEAs with small
populations.
We describe in the section Minimum Cell Sizes and Minimum N-Sizes
(Sec. 300.647(b)(3) and (4); Sec. 300.647(b)(6)), the changes to
these regulations to give States added flexibility to exempt LEAs from
a review for significant disproportionality when a racial or ethnic
group does not meet a reasonable minimum cell size or reasonable
minimum n-size set by the State with input from the stakeholders,
including the State Advisory Panel.
This change will give the States increased flexibility to use a
minimum cell size--a minimum number of children in the risk numerator
when calculating a risk ratio--to avoid identifying LEAs with
significant disproportionality due to the
[[Page 92404]]
identification, placement, or disciplinary removal of a small number of
children. The minimum cell size should also help to prevent
identification of LEAs with low prevalence of identification,
placement, discipline--which may be subject to more volatile risk
ratios--to the extent that these LEAs also have a small population of
children.
Again, however, IDEA does not contain any provisions allowing
either States, or the Department, to waive the statutory remedies once
an LEA is identified with significant disproportionality. When an LEA
is identified with significant disproportionality, the statute
specifies that the State must require the LEA to reserve the maximum
amount of funds under section 613(f)--15 percent of its IDEA, Part B
funds--to provide comprehensive CEIS.
Changes: Please see the discussion on changes to minimum cell and
n-sizes in the section Minimum Cell Sizes and Minimum N-Sizes (Sec.
300.647(b)(3) and (4); Sec. 300.647(b)(6).
Comment: One commenter requested clarification about the
responsibilities of virtual schools and the LEAs within which children
attending the virtual schools live. The commenter stated that there has
been a significant increase in the number of children with disabilities
who receive part or all of their education through virtual schools,
raising the need for guidance on this issue.
Discussion: IDEA requires that each State make FAPE available to
all eligible children with disabilities aged 3 through 21 within the
State's mandated age range and residing in the State. (20 U.S.C. 1412).
This includes the identification and evaluation of children with
disabilities, the development of an IEP, the provision of special
education and related services in the least restrictive environment,
and the provision of procedural safeguards to children with
disabilities and their families. The requirements of IDEA apply to
States and LEAs, regardless of whether a child is enrolled in a virtual
school that is a public school of the LEA or a virtual school that is
constituted as an LEA by the State.\3\ IDEA and its implementing
regulations do not make any exceptions to these requirements to allow
States to waive or relax requirements for virtual schools, including
those virtual schools constituted as LEAs. Therefore, the requirements
that States must use to determine whether significant
disproportionality based on race or ethnicity is occurring in LEAs
applies to LEAs with virtual schools and to virtual schools that are
constituted as LEAs, consistent with Sec. 300.28. Letter to Texas
Education Agency Associate Commissioner Susan Barnes, 2003.
---------------------------------------------------------------------------
\3\ See, OSEP Dear Colleague Letter, August 5, 2016, citing
Letter to Texas Education Agency Associate Commissioner Susan
Barnes, December 18, 2003. As stated in the Barnes letter, ``. . .
IDEA requires that each State make available a free appropriate
public education to all children with disabilities (as defined by
the IDEA) aged 3 through 21 residing in the State (20 U.S.C.
1412(a)(1)). This includes the identification and evaluation of
children with disabilities (20 U.S.C. 1412(a)(3)), the development
of an individualized educational program (20 U.S.C. 1412(a)(4)), the
provision of special education and related services in the least
restrictive environment (20 U.S.C. 1412(a)(5)), and the provision of
procedural safeguards to children with disabilities and their
families (20 U.S.C. 1412(a)(6)). The IDEA statute and its
corresponding regulations do not make any exceptions to these
requirements or allow States to waive or relax these requirements
for virtual schools.''
---------------------------------------------------------------------------
Changes: None.
Comment: Another commenter observed that in its State, a high
school LEA has been identified as having significant disproportionality
based on the identification of children with disabilities, simply
because of the combining of elementary school LEAs into one population.
The commenter stated that there was no significant disproportionality
at the elementary level.
Discussion: With regard to States that include elementary school
LEAs and high school LEAs, the Department's standard methodology offers
States sufficient flexibility to ensure that the identification of
those LEAs is appropriate. When calculating risk ratios under Sec.
300.647(b)(1), States are required to select reasonable minimum cell
sizes (to be applied to the risk numerator) and minimum n-sizes (to be
applied to the risk denominator). This will allow States to focus their
attention on the most systemic disparities and avoid the identification
of LEAs based on volatile risk ratios.
Changes: None.
Comments: One commenter recommended that the Department require
States use to use a tiered standard methodology that takes into
consideration the type, size, and poverty within an LEA
Discussion: As we noted in the NPRM, part of the purpose of the
standard methodology is to foster greater transparency in how States
identify significant disproportionality. Given this, it is critical
that the standard methodology consist of simple and easily interpreted
analyses. The Department believes that a tiered methodology would be
inconsistent with this goal because it would require States to adjust
the methodology for different types of LEAs, adding greater complexity
and, possibly, ambiguity.
Instead of a tiered methodology, the Department has proposed a
standard methodology that provides States with adequate flexibility to
consider the needs of different types of LEAs. This flexibility
includes the ability to set reasonable risk ratio thresholds,
reasonable minimum cells sizes and n-sizes (with input from State
Advisory Panels), the ability consider up to three years of data before
making a determination of significant disproportionality, and the
option to not identify LEAs that exceed the risk ratio threshold and
are making reasonable progress in lowering their risk ratios.
Changes: None.
Comments: Many commenters requested greater clarity as to the count
of children that should be used for the denominator when calculating
risk ratios for a particular racial or ethnic group. One commenter
noted that, for discipline risk ratios, one State uses a cumulative
count of children rather than a snapshot, point-in-time count. These
commenters note that States should be allowed to use the denominators
that most closely align with the numerators of the risk calculations,
where alignment refers both to the timing of the counts and to the
inclusion or exclusion of certain groups of children (e.g., parentally
placed private school children, children ages three through five,
children receiving transition services, etc.)
Discussion: In the NPRM, we noted that, with respect to the
specific categories of analysis--identification, placement, and
discipline--the Department's intended to incorporate in the regulations
the required categories of analysis, which are consistent with the
States' current IDEA section 618 data submissions.
In reviewing LEAs for significant disproportionality with respect
to identification, we generally expect that States will use the same
IDEA section 618 data that is reported to the Department (for data
regarding children with disabilities) and data submitted to the
Institute for Education Sciences for the Common Core of Data (for
enrollment data). OMB Control No. 1875-0240. In reviewing LEAs for
significant disproportionality with respect to placement, we generally
expect that States will use the same IDEA section 618 data that is
reported to the Department. OMB Control No. 1875-0240.
In reviewing LEAs for significant disproportionality with respect
to discipline, we generally expect that
[[Page 92405]]
States will use the same section 618 data reported to the Department.
For IDEA section 618 data, discipline data is a cumulative count from
July 1st through June 30th, while IDEA section 618 child count and
placement data is a point-in-time count that occurs in the fall. OMB
Control No. 1875-0240. After the final regulations are published, the
Department plans to provide States with additional guidance about the
counts of children that States should use when analyzing LEA data for
significant disproportionality with respect to identification,
placement, and discipline.
Changes: None.
Comments: A few commenters recommended that the Department convene
workgroups and invest in research to explore issues related to
significant disproportionality. A few commenters recommended that the
Department establish a workgroup to make recommendations for
researching how to address common issues and identify the root causes
of disproportionality. One commenter recommended that Department build
a workgroup to identify evidence-based practices in the implementation
of IDEA's child find provisions so that these practices can be
distributed widely to the field. This commenter also recommended that
the Department convene an expert group to identify the issues and
possible solutions to under-identification, including the under-
identification of children who are twice exceptional. Another commenter
recommended that the Department more carefully examine the impacts of
poverty on significant disproportionality, including the linkages
between poverty and the identification, placement, and discipline of
children with disabilities.
Discussion: The Department appreciates the suggestions to develop
workgroups and expand research into the causes of significant
disproportionality, under-identification, and evidence based practices
States and LEAs can use to address significant disproportionality. The
Department agrees that it will be valuable to undertake more research
on the impact of these regulations and on significant
disproportionality in general. We also agree that it will be beneficial
to help develop communities of practice for addressing significant
disproportionality and expand technical assistance to support the work
of States and LEAs. After the publication of these regulations, the
Department plans to identify additional resources to support expanded
research and technical assistance to improve the identification,
placement, and discipline of children with disabilities.
Changes: None.
Risk Ratios (Sec. 300.646(b); Sec. 300.647(a)(2); Sec.
300.647(a)(3); Sec. 300.647(b))
Comment: Several commenters responded to Directed Question #2,
which requested additional strategies to address the shortcomings of
the risk ratio method and inquired whether the Department should allow
or require States to use another method in combination with the risk
ratio method. A few commenters stated that the risk ratio has a
definite advantage over other methods because it is easy to explain and
duplicate. Other commenters agreed, stating that the risk ratio is
relatively simple and straightforward, which is especially important
for a standard methodology. Two commenters appreciated that the NPRM
included a review of several possible methods for defining significant
disproportionality and had no concerns with the selection of the risk
ratio as the approach that is currently most widely used and best
understood among States. One commenter stated that its State has
primarily used the risk ratio method and found success in identifying
LEAs as having significant disproportionality each year. A few
commenters stated that the use of the risk ratio will provide an
opportunity to make comparisons between LEAs and States to ensure
children are appropriately served through IDEA.
Discussion: The Department appreciates the comments in support of
the use of the risk ratio as part of the standard methodology. We agree
that States' use of this method will help to improve comparability of
significant disproportionality determinations across States, increase
transparency in how States make determinations of LEAs with significant
disproportionality, improve public comprehension of a finding of
significant disproportionality (or lack thereof), and address concerns
raised by the GAO.
Changes: None.
Comments: Several commenters expressed concerns about the risk
ratio. A few of these commenters expressed that sole reliance on the
risk ratio may result in a failure to fully address the problem of
racial or ethnic disproportionality. A number of commenters expressed
concern that, in general, the risk ratio will not provide enough
information to determine whether an LEA has significant
disproportionality. A few commenters were concerned that the Department
proposed the risk ratio as the standard methodology due to its ease of
implementation by States and comprehension by the public rather than
the robustness of the method itself in determining disproportionality
in identification, placement, and discipline.
Discussion: In developing the standard methodology, the Department
drew heavily from current State practices. As we noted in the NPRM,
most States, as part of their methodology for comparing racial and
ethnic groups for the purpose of identifying significant
disproportionality, already use a version of the risk ratio, along with
a threshold over which LEAs are identified with significant
disproportionality. Further, States using a risk ratio pair this method
with a minimum n-size or cell size and use up to three years of data
when making an annual determination to prevent inappropriate
determinations of significant disproportionality due to risk ratio
volatility. While the risk ratio method will allow States to conduct
simple analyses that are easy to interpret, we also believe this
approach is sufficiently robust to help States to appropriately
identify significant disproportionality.
While we agree with commenters that while the use of risk ratios--
or any data analysis alone--does not identify or address the causes of
numerical disparities, risk ratios are sufficient to determine whether
an LEA has sufficiently large disparities to determine whether
significant disproportionality is occurring. This determination is an
important first step that will require the LEA to identify and address
the causes of the significant disproportionality. Further, as we note
in A Standard Methodology for Determining Significant
Disproportionality--General, we interpret IDEA section 618(d) (20
U.S.C. 1418(d)) to require efforts to address the causes of significant
disproportionality as a consequence of, rather than a part of, the
determination of significant disproportionality.
Changes: None.
Comments: Several commenters requested that the Department allow
the use of additional criteria to address limitations in the risk ratio
method. One commenter suggested that methods in addition to, or instead
of, risk and alternate risk ratio should be allowed. One commenter
recommended that States adopt other risk ratio methods, provide the
Department with a rationale for doing so, and that the Federal
government evaluate each State's approach. Two commenters
[[Page 92406]]
recommended that States be allowed to demonstrate to the Department why
the use of a risk ratio or alternate risk ratio may not provide the
best analysis of disproportionality in their State, and then
demonstrate the effectiveness of an alternate calculation. These
commenters stated that the primary purpose of the regulation should be
to identify significant disproportionality and that methods other than
the risk ratio can be effective in doing so. A few commenters requested
that the Department allow States to use multiple measures to identify
LEAs with significant disproportionality. One commenter stated that
States' use of multiple risk ratio methods emerged based on careful
analysis of false positive identifications that occurred when applying
a single risk ratio, possibly complemented by the alternate risk ratio.
This commenter stated that States would not have moved to more complex
measures if it were not considered important for the analysis to have
integrity.
A second commenter stated that one State currently uses two
measurements for disproportionality--the alternate risk ratio and the
e-formula. This commenter stated that using both methods--with an
appropriate minimum cell size and minimum n-size--identifies both large
and small LEAs that have real racial and ethnic disparities. Another
commenter encouraged the use of multiple methods of identifying LEAs,
as the sole reliance on the relative risk ratio can lead to unintended
results (e.g., an inability to calculate the risk ratio when a
comparison group has 0 percent risk).
Discussion: In reviewing these comments, the Department carefully
considered the need to provide States adequate flexibility to adjust
the standard methodology to their needs, while ensuring that the
Department's goal of promoting uniformity and transparency is
addressed. As mentioned in the NPRM, a 2013 GAO study 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.''
Further, the GAO found that ``the way some states defined
overrepresentation made it unlikely that any districts would be
identified and thus required to provide early intervening services.''
(GAO, 2013). To better understand the extent of racial and ethnic
overrepresentation in special education and to promote consistency in
how States determine which LEAs are required to provide comprehensive
CEIS, the GAO recommended that the Department ``develop a standard
approach for defining significant disproportionality to be used by all
States'' and added that ``this approach should allow flexibility to
account for state differences and specify when exceptions can be
made.'' (GAO, 2013.)
In keeping with these recommendations, the Department believes that
restricting States to the risk ratio will foster greater transparency,
as well as comparability between States, and thereby strengthen the
Department's ability to review and report on States' implementation of
IDEA section 618(d). To allow States to generate and adopt additional
criteria--even if only a second criterion--would interfere with the
goal of greater comparability while adding to the complexity of the
standard methodology as a whole.
However, the Department is sensitive to the commenters' concerns
and has included some limited flexibilities that States may consider
when making determinations of significant disproportionality. Under
Sec. 300.647, States have the flexibility to set their own reasonable
risk ratio thresholds and to identify only those LEAs that exceed the
risk ratio threshold for a number of consecutive years, but no more
than three. Section 300.647(d)(2) also allows States to not identify
LEAs that exceed the risk ratio threshold if they demonstrate
reasonable progress, as determined by the State, in lowering the risk
ratio for the group and category in each of two consecutive prior
years. This latter flexibility enables States to identify significant
disproportionality only in those LEAs where the level of
disproportionality is the same or not decreasing at a reasonable rate
and does not require those LEAs that are reasonably reducing
disparities to implement the remedies required under IDEA section
618(d)(2), even if those LEAs have risk ratios that exceed the State's
risk ratio threshold.
Last, while in the NPRM the Department proposed to allow States to
set a minimum n-size of up to 10 children (or children with
disabilities), the Department has amended the regulation to allow
States to set reasonable minimum n-sizes, as well as reasonable minimum
cell sizes, that apply to the risk numerator when calculating risk
ratios. The Department's intent with this change was to allow States to
account for the volatility of risk ratio calculations, deem as
significant only the most systemic cases of significant
disproportionality, and prevent the identification of significant
disproportionality based on the enrollment of, or the LEA's responses
to the needs of, one or two children. It is our belief that, by
allowing States the flexibility to determine both minimum n-sizes and
minimum cell sizes, the Department has dramatically reduced the
likelihood of inappropriate identifications of significant
disproportionality (false positives) that could occur when broadly
applying the risk ratio methodology. Further, allowing States to use
minimum cell and n-sizes to determine when to use an alternate risk
ratio would allow States to examine racial and ethnic groups for
significant disproportionality in the absence of an LEA-level
comparison group or when the comparison group has a risk of 0 percent.
With these provisions, the Department believes these regulations
achieve an appropriate balance between the need for flexibilities to
ensure valid data analysis when evaluating significance and the need
for greater consistency among the States' systematic reviews.
Changes: See, discussion on changes to minimum cell and n-sizes in
the section Minimum Cell Sizes and Minimum N-Sizes (Sec. 300.647(a)(3)
and (4); Sec. 300.647(b)(1)(i)(B) and (C); Sec. 300.647(b)(3) and
(4); Sec. 300.647(c)(1)). See also, discussion on the reasonable
progress flexibility in the section, Reasonable Progress, Sec.
300.647(c)(2).
Comments: A large number of commenters noted that the risk ratio
method does not work well with small populations. Although most of
these comments cited issues with the Department's proposed cap on
minimum n-sizes, which we address in the section Minimum Cell Sizes and
Minimum N-Sizes (Sec. 300.647(a)(3) and (4); Sec. 300.647(b)(1)(i)(B)
and (C); Sec. 300.647(b)(3) and (4); Sec. 300.647(c)(1)), some
commenters were concerned that the standard risk ratio method would be
inappropriately sensitive to racial and ethnic disparities in smaller
LEAs that have fewer children with disabilities.
Many commenters also recommended that States have flexibility to
add criteria beyond risk ratio and minimum n-size to avoid
inappropriately identifying significant disproportionality due to small
numbers. Several of these commenters reported that a large number of
LEAs in their States and regions are small and use varying benchmarks
for identification. One commenter noted that this flexibility would be
necessary for small LEAs, whether using a risk ratio or weighted risk
ratio calculation.
A few commenters recommended that, in States with small
populations, the Department permit the use of a second method of
calculating risk ratio, such as the e-formula, statistical significance
testing, or n-size criteria,
[[Page 92407]]
since small populations are vulnerable to year-to-year fluctuations and
a second method helps to ensure risk is not due to chance alone. A few
commenters noted that the use of the risk ratio alone, without adequate
minimum n-sizes or additional significance testing, will result in many
LEAs being identified as having significant disproportionality when the
disproportionality is due to small numbers of children identified with
disabilities, placed in restrictive settings, and disciplined, and not
to any underlying cause.
Discussion: The Department appreciates all of these comments and
has considered the suggestion to permit States to use additional
methods, beyond the use of the risk ratio alone, to address the
potential for false positive identification of significant
disproportionality when risk ratios are applied to small populations.
As discussed earlier, in the interest of increasing both comparability
and transparency across States, with respect to their implementation of
IDEA section 618(d), we believe it is necessary to require States to
use a common analytical method for determining significant
disproportionality and to allow limited flexibilities within that
methodology rather than allowing or requiring additional methodologies.
For example, as discussed elsewhere in this section, the Department
received various comments that the minimum n-size initially proposed in
the NPRM did not adequately protect small communities. The Department
agrees that additional criteria--beyond the risk ratio and minimum n-
size--would help to ensure appropriate identification of LEAs with
significant disproportionality. In addition to minimum n-sizes, which
States may use to ensure risk denominators are sufficiently large to
calculate a stable risk ratio, States may also use minimum cell sizes
to ensure that risk numerators are sufficiently large to reduce the
potential for false positive identification due to small numbers.
Likewise, the ability to use up to three years of data when
determining significant disproportionality could be used to address the
year-to-year fluctuations that may occur in a State with many small
LEAs. Finally, because States, in consultation with the State Advisory
Panel, must set a reasonable risk ratio threshold and a measure of
reasonable progress, the Department believes that the regulations
provide sufficient flexibilities for ensuring that IDEA section 618(d)
can be properly implemented using this methodology.
Changes: See, discussion on changes to minimum cell and n-sizes in
the section Minimum Cell Sizes and Minimum N-Sizes (Sec. 300.647(a)(3)
and (4); Sec. 300.647(b)(1)(i)(B) and (C); Sec. 300.647(b)(3) and
(4); Sec. 300.647(c)(1)). See also, discussion on the reasonable
progress flexibility in the section, Reasonable Progress, Sec.
300.647(c)(2).
Comment: Several commenters expressed concern about efforts to
identify significant disproportionality in LEAs with low incidence in
any of the categories of analysis. A few commenters argued that there
are situations in which a risk ratio alone will not provide enough
information to determine whether an LEA has or does not have
significant disproportionality. For example, comparing two very low
risks for discipline of children with disabilities can result in a high
risk ratio, even though both the racial or ethnic group being examined
and the comparison group's discipline rates are low. Similarly, a few
commenters noted that sole reliance on the risk ratio can produce
similar results when examining disability identification and
restrictive placement.
A few commenters argued that the risk ratio is dependent on scale
and may unduly penalize LEAs with a low overall prevalence in the
disability or discipline categories. For example, an LEA with an
overall rate of suspension for all children of less than one percent
would be regarded by most as exemplary. According to the commenter, the
same LEA--if it were suspending 1.5 percent of children with
disabilities in one racial or ethnic group, and 0.5 percent from a
comparison group--would be treated the same as an LEA that was
suspending 30 percent of children with disabilities in one group, and
10 percent from a comparison group.
One commenter suggested that States have flexibility to consider a
low incidence of disciplinary removals as reasonable progress, or to
exempt LEAs with low incidence from any review of significant
disproportionality with respect to discipline.
Discussion: The Department appreciates the suggestions to expand
the flexibilities included in the NPRM. Under Sec. 300.647(d)(1),
States may choose not to identify any LEAs as having significant
disproportionality until a risk ratio for a particular racial or ethnic
group for a particular category of analysis has exceeded a risk ratio
threshold for up to three consecutive years. The Department believes
that, in cases where an LEA that exceeds the minimum cell and n-sizes
achieves persistently low rates of disciplinary action, such as a
suspension, but a particular racial or ethnic group faces consistently
disproportionate treatment over the course of multiple years, it would
be appropriate for the LEA to be identified with significant
disproportionality.
Further, the Department believes that allowing the use of up to
three years of data provides LEAs the time and opportunity to encourage
schools to use, and train personnel to use, alternatives to
disciplinary removals prior to a State determination of significant
disproportionality. The Department also believes that allowing States
to use up to three years of data to identify significant
disproportionality will promote the appropriate identification of LEAs,
including LEAs with low incidence rates.
Changes: None.
Comments: Several commenters argued that the risk ratio will fail
to detect significant disproportionality in areas where the risk levels
in an LEA for identification, placement, or discipline are
extraordinarily high for children in all racial and ethnic groups. That
LEA could nevertheless have a small risk ratio. Similarly, one
commenter argued that the risk ratio is an illogical measure of the
association between two groups; for example, a risk ratio of 1.85 for
outcome rates of 37 percent and 20 percent means the same thing as a
risk ratio of 2.60 for rates of 13 percent and 5 percent
Discussion: While that there may be LEAs where children with
disabilities are inappropriately identified, placed in overly
restrictive settings, or disciplined at higher rates than national
averages, IDEA section 618 and its requirement for an annual review for
significant disproportionality does not operate in isolation. There are
other provisions of IDEA beyond section 618(d) that promote appropriate
practices in these areas. For example, States and LEAs share
responsibility for ensuring appropriate implementation of State child
find procedures (IDEA section 612(a)(3)) and evaluation and
reevaluation procedures (IDEA section 614(a)-(c)); children with
disabilities must receive FAPE in the least restrictive environment
(IDEA section 612(A)(5)); and finally, specific discipline procedures
and protections must be followed (IDEA section 615(k)).
In addition, Congress included specific language that allows States
to address higher incidences of discipline for children with
disabilities under IDEA section 612(a)(22)(A). This provision requires
that States examine data to determine if LEAs have significant
discrepancies, by disability status or by race and ethnicity, in rates
of long-term suspensions and
[[Page 92408]]
expulsions, either among the LEAs in the State or when comparing rates
for disabled and nondisabled children within each LEA.
There are still other sections of IDEA that support the provision
of services for children in need of behavioral supports and that could
be used to address any high incidence of disciplinary removals among
children with disabilities. Section 614(d)(3)(B)(i) (20 U.S.C.
1414(d)(3)(B)(i)), for example, requires IEP teams to, in the case of a
child whose behavior impedes the child's learning or that of others,
consider the use of positive behavioral interventions and supports, and
other strategies, to address that behavior.
In 2016, the Department released guidance to clarify that, while
IDEA section 615(k)(1)(B) (20 U.S.C. 1415(k)(1)(B)) authorizes school
personnel to remove from their current placement children who violate a
code of student conduct, that authority in no way negates the
obligation of schools to provide behavioral supports to children with
disabilities as needed to ensure FAPE. OSEP Dear Colleague Letter,
August 1, 2016.
As noted earlier, significant discrepancies in the rates of long-
term suspension and expulsions among LEAs in a State or when comparing
rates for children with and without disabilities are addressed by IDEA
section 612(A)(22), but section 618(d) does not contain comparable
language mandating those examinations.
Finally, consistent with earlier discussions, the Department
declines to require or allow additional criteria that would reduce the
proposed levels of comparability and transparency.
Changes: None.
Comments: Many commenters suggested that the Department allow
States to compare LEA risk to a risk index. Some argued that if the
Department allowed States to include comparisons to risk indices in the
standard methodology, States could reduce the number of LEAs identified
with significant disproportionality where risk levels are very low for
all groups (but where the risk ratios are high). Similarly, others
recommended that while any LEA with a racial or ethnic group risk ratio
above the specified risk ratio threshold would be considered for a
finding of significant disproportionality, any LEA with a racial or
ethnic group risk that was to some degree below the State mean risk
index would not be determined to have significant disproportionality.
Still other commenters suggested many variations on ways that a
comparison to a risk index could be used, such as comparing the risk of
a particular outcome for a racial or ethnic group in an LEA to a
statewide risk or a national risk for that same group. These
recommendations addressed the use of risk indices for different areas
of analysis, different racial or ethnic groups, and different
disabilities. In short, the commenters suggested ways to use risk
indices in conjunction with the risk ratio for all of the analysis
required under Sec. 300.647(b).
Discussion: To begin with, the Department understands risk index to
mean the likelihood of a particular outcome (identification, placement
or disciplinary removal) for an aggregate population of children--such
as all children within a State, or all children nationally--to which
risk may be compared. The Department is not aware of, and no commenters
provided, a research basis for selecting a particular magnitude of
difference--such as one or two percentage points--between racial or
ethnic subgroup risk and a risk index that would allow the risk index
to be used as a measure of significant disproportionality in a way that
is not arbitrary.
That aside, LEAs must use extreme caution to avoid actions based on
race or ethnicity that could violate Federal civil rights laws and the
Constitution. Moreover, LEAs must ensure that the requirements for
individualized decisions about evaluations, placement, and disciplinary
removals are properly and fully implemented.
Under IDEA, a child's identification, placement, and discipline are
determined through specific individualized means. The Department has
determined that allowing or requiring States to compare and control for
racial or ethnic group risk and an overall risk index--that is,
including in the standard methodology measures that would require
States to adjust for, and thereby artificially mandate, the overall
incidence of identification, placement, or discipline--would create
strong incentives for impermissible quotas in overall identification,
placements, and disciplinary removals. The Department believes that
restrictions that would inhibit the ability of an evaluation team to
make eligibility determinations, a placement team to make placement
decisions based on the child's unique needs, or an IEP Team to
determine if conduct subject to discipline was a manifestation of the
child's disability, would result in violations of IDEA section
612(a)(3) (child find), section 614(a)-(c) (evaluation and
reevaluation) section 612(a)(5) (placement in the least restrictive
environment), or section 615(k) (disciplinary removals).
As such, the Department believes that creating an exception to a
determination of significant disproportionality based on a comparison
between racial or ethnic group risk and a risk index, or modifying the
standard methodology to include this use of the risk index, would
undermine the determinations required under 618(d) and create strong
incentives to violate IDEA's requirements for identification,
placement, and disciplinary removals.
The Department appreciates the various suggestions for addressing
certain potential issues when using risk ratios to identify LEAs with
significant disproportionality. In line with the GAO's recommendations,
the Department also believes that restricting States to the risk ratio
will foster greater transparency, as well as comparability between
States, and thereby strengthen the Department's ability to evaluate
States' implementation of IDEA section 618(d). To allow States to add
additional criteria--even if only a second criterion--would reduce
comparability between States' approaches while adding to the complexity
of the standard methodology as a whole and creating additional burdens.
Changes: None.
Comments: Several commenters requested that States be permitted to
use risk difference along with, or instead of, risk ratios because it
has a number of advantages over the risk ratio for measuring racial and
ethnic disparities.
First, commenters stated that risk differences can be calculated
even when the comparison group has a risk level of zero, and therefore
the risk ratio cannot be calculated. According to commenters, the most
serious racial disparities are those in which only one racial or ethnic
group is subjected to the harshest disciplinary actions; for this
reason, commenters supported the use of risk difference to properly
analyze significant disproportionality in suspensions and expulsions
exceeding 10 days.
Second, commenters argued that risk differences could capture
disparities in LEAs that have very high rates of restrictive settings
and disciplinary exclusion for all groups. Commenters expressed their
concerns that those LEAs would be overlooked if risk ratios alone are
used.
Third, as discussed elsewhere in this section, commenters stated
that risk difference can ensure that significant disproportionality
would not be triggered when incidence levels are very low for all
groups.
Finally, commenters stated that risk differences are easy to
calculate,
[[Page 92409]]
interpret, and use to compare LEAs. These commenters suggested that the
Department define a range of acceptable risk difference thresholds and
review each State's thresholds for reasonableness. The commenters also
expressed that, because risk differences are simple to calculate and
easy to understand, the Department should not find it difficult to
review States' risk difference thresholds for reasonableness. Further,
commenters suggested that, as most of the States finding zero LEAs with
significant disproportionality use a risk ratio, the preferences of
States for risk ratios should not prejudice the Department against the
use of risk difference in addition to, or instead of, a risk ratio.
Discussion: The Department carefully considered the optional use of
a second measure of significant disproportionality, either instead of
or in addition to, the risk ratio. The Department agrees that risk
difference has certain advantages that the risk ratio does not.
However, the Department also believes that, at the present time, the
risk ratio also has advantages not shared by the risk difference.
First, as risk ratio method is widely used by States, its strengths
and weaknesses are well known, as are the approaches needed to address
its shortfalls (e.g., multiple years of data and minimum n-sizes and
minimum cell sizes). While we agree that the risk difference can be
calculated when risk in the comparison group is zero, and may help
States to avoid inappropriate identification of LEAS with low incidence
rates, we believe that the standard methodology, as a whole, allows
States to appropriately measure racial and ethnic disparities in LEAs
experiencing these issues. Further, while risk differences may identify
racial and ethnic disparities when LEAs have high incidence rates, we
believe there are other provisions of IDEA beyond section 618(d) that
promote appropriate practices to address those high incidence rates,
which we list earlier in this section.
Second, due to the widespread use of risk ratio thresholds, the
Department anticipates that Sec. 300.646(b), which would require
States to follow a standard methodology, will create less burden for
States if the methodology includes a more common measure of racial and
ethnic group disparity. Based on the Department's review of State
definitions of significant disproportionality, as noted in the NPRM,
fewer than five States used risk difference, while nearly 45 States
used some form of the risk ratio (e.g., risk ratio, alternate risk
ratio, weighted risk ratio), and 21 used the risk ratio proposed in the
Department's standard methodology.
Third, the States' experience with risk ratios provides the
Department with some historical knowledge of what risk ratio thresholds
have previously been considered as indicative of significant
disproportionality. In the NPRM, we noted that, of States utilizing a
risk ratio, 16 States used a risk ratio threshold of 4.0, while seven
States each used thresholds of 3.0 and 5.0. This history will help
inform the Department's review of reasonableness. With so few States
utilizing risk difference, this same history is not available to the
Department. For these reasons, the Department considers the risk ratio
to be superior to risk difference as the primary measure of racial and
ethnic disparities for the standard methodology.
Further, the Department does not believe the benefits of the risk
difference outweigh the consequences. While the risk difference method
may serve to clarify the significance of racial disproportionality
between LEAs with identical risk ratios, its application would still
require the development of a threshold of risk difference for
determination of significant disproportionality. The use of two
different thresholds for significant disproportionality is contrary to
the objective of promoting consistency and transparency in how States
determine disproportionality, as recommended by the GAO report. In
addition, we believe that the measures implemented in these final
regulations to promote consistency and transparency also will lead to
more appropriate identification of significant disproportionality and
do not believe that the low incidence of identification in the past is
a result of the risk ratio method itself.
Changes: None.
Comments: Two commenters asserted that the weighted risk ratio is
the most accurate and effective measurement because it allows the State
to standardize across LEAs that are very different. These commenters
argued that, while the risk ratio is simple and straightforward, the
weighting of findings using State data provides standardization that
makes comparability across LEAs possible. These commenters also argued
that the weighted risk ratio formula is not too difficult for States to
utilize Further, commenters argued that the States currently using a
weighted risk ratio--nearly half of all States--would be prohibited
from doing so under proposed Sec. 300.647(b), apparently because of
its complexity and lack of public understanding--rather than specified
weaknesses in the methodology itself. Some commenters suggested
allowing States to calculate significant disproportionality using
either the risk ratio method or the weighted risk ratio method. One
commenter stated that the weighted risk ratio ensures that two LEAs are
treated similarly if the risk for the racial or ethnic group of
interest is the same in both LEAs, even if the racial demographics in
each LEA are different.
Other commenters, meanwhile, supported regulations that would
disallow States' use of the weighted risk ratio. These commenters
agreed that weighted risk ratios add a high level of complexity that
makes the decision to identify an LEA difficult for the layperson to
follow. These commenters stated as well that weighted risk ratios are
not necessary if the alternative risk ratio is available. One of these
commenters stated that it was important for special education
administrators to be able to calculate current racial and ethnic
disparities independent from a State report, which is based on prior
year data. A few commenters stated that the use of the weighted risk
ratio alone, without adequate minimum n-sizes or additional
significance testing, would result in many LEAs being identified as
having significant disproportionality when the disproportionality is
due only to small numbers of children identified with disabilities,
placed in restrictive settings, and disciplined. Some commenters
observed that the Department's proposal did not include permission to
use weighted risk ratio but requested that the Department explicitly
prohibit its use.
Discussion: As we noted in the NPRM, with a weighted risk ratio,
the comparison group is adjusted by adding different weights to each
racial and ethnic group, typically based on State-level representation.
The weighted risk ratio method has the drawback of volatility across
years, similar to the risk ratio, but does not support straightforward
interpretation as well as the risk ratio does.
Given that we proposed three mechanisms to help States account for
risk ratio volatility--(1) the alternate risk ratio, (2) the allowance
for using up to three consecutive years of data before making a
significant disproportionality determination, and (3) the minimum n-
size and cell size requirements--the Department previously determined
that the potential benefits of the weighted risk ratio method were
exceeded by the costs associated with complexity and decreased
transparency. Although the final regulations adopt additional
[[Page 92410]]
flexibility, and potential variability, through the requirement for a
minimum cell size, the Department continues to believe that use of the
weighted risk ratio is not justified for the same reasons.
While a number of States currently use the weighted risk ratio
method, the Department believes that method fails to provide LEAs and
the public with a transparent comparison between risk to a given racial
or ethnic group and risk to peers in other racial or ethnic groups, as
the risk ratio and alternate risk ratio methodologies are designed to
do. We believe that the final regulations, as drafted, clearly disallow
use of the weighted risk ratio as part of the standard methodology and
that additional clarification on this point is not necessary.
Changes: None.
Comment: A few commenters stated that States should be encouraged
to add a test of statistical significance to the standard methodology.
Two commenters requested that the Department allow States to use
appropriate tests of statistical significance to assess the statistical
significance of any preliminary result produced through risk ratio
analysis.
Another commenter suggested that, if the Department only allows
States to set a minimum n-size, it should allow States to conduct a
test of statistical significance to determine if the risk ratio is
truly significant.
Discussion: Statistical significance testing is applicable only to
samples rather than population data, and therefore is not an
appropriate method of determining significant disproportionality in an
LEA. As we noted in the NPRM, States have access to population data,
including actual counts of children identified with a disability,
placed into particular settings, or subjected to a disciplinary removal
from placement. With this information, States can simply calculate
whether an LEA's risk ratio for a given subgroup is different from the
risk ratio for a comparison group.
Changes: None.
Comment: A commenter argued that, when calculating a risk ratio,
White children would be a more appropriate comparison group than ``all
other racial and ethnic groups'' as specified in the definition of
``risk ratio'' in the proposed Sec. 300.647(a)(3) (now Sec.
300.647(a)(6)). To help States make use of this comparison, while
ensuring that White children are not precluded from the States' review
for significant disproportionality, the commenter recommended that
States be required to calculate both the Department's proposed risk
ratio and a second risk ratio where White children replace all other
racial and ethnic groups. The commenter noted that the additional data
analysis and reporting burden associated with the addition of this risk
ratio would be negligible. Another commenter recommended that, in
addition to the risk ratio, the Department allow States to compare all
racial or ethnic groups to the State risk index for White children
only, in order to prevent States from identifying significant
disproportionality in LEAs where risk for a given racial or ethnic
group is low.
Discussion: The Department acknowledges that, in general, it may be
a common practice to utilize White children as a comparison group when
examining data for racial and ethnic disparities. However, for purposes
of IDEA section 618(d), it would be inappropriate to use one method for
children of color with disabilities--a comparison to White children--
and a separate method for White children in which they are compared to
all other racial and ethnic groups. We do not find it appropriate for
one racial or ethnic group to be treated differently from the others in
these regulations.
Changes: None.
Categories of Analysis (Sec. 300.647(b)(3) and (4))
Comment: One commenter stated that, in one State, children with
disabilities are not categorized by impairment, noting that IDEA does
not require that children be classified by their disability. The
commenter requested that, to preserve this State's current policy, the
Department revise proposed Sec. 300.647(b)(3) to clarify that States
need only calculate risk ratios for particular impairments if those
States or their LEAs identify children with particular impairments.
Discussion: The Department does not believe that a revision to
Sec. 300.647(b)(3) is necessary to allow a State that currently does
not classify children by disability to continue in its current
practice. The standard methodology in Sec. 300.647 does not require
States to classify children by impairment in order to comply with the
requirement to identify and address significant disproportionality.
Rather, under Sec. 300.647(b)(3), the State is required to review
those racial or ethnic groups within LEAs that meet the State's
population requirements, including a minimum cell size. Because a State
that does not classify children by disability would, in assessing LEAs
for significant disproportionality, have a cell size of zero for each
of the impairments enumerated under Sec. 300.647(b)(3)(ii) for all
racial and ethnic groups and for all LEAs, that State would not be
required to calculate risk ratios for any of the impairments. Under
Sec. 300.647(b)(3)(i), however, the State must calculate risk ratios
for the category of all children with disabilities, by racial and
ethnic group.
Changes: None.
Comments: Several commenters responded to Directed Question #3 in
the NPRM, which inquired whether the Department should remove any of
the six impairments from, or add additional impairments to, proposed
Sec. 300.647(b)(3)(ii). That section listed the impairments that
States must examine in determining whether an LEA has significant
disproportionality with respect to the identification of particular
impairments.
One commenter responded that the Department need not expand the
list of impairments because the remaining impairments under IDEA
section 602(3) that could be added to those listed in Sec.
300.647(b)(3)(ii) are low incidence, and the qualifying factors for
these are so specific, that there is limited room for varying
interpretations that might lead to significant disproportionality. Two
commenters recommended that all six impairments included in proposed
Sec. 300.647(b)(3)(ii) remain if the Department allows States to limit
their review of significant disproportionality only to those racial and
ethnic groups where at least 10 children (or, as an alternative, at
least 15 children) have been identified with that particular
impairment. One commenter asserted that all impairments listed in
proposed Sec. 300.647(b)(3)(ii) should remain and that the Department
should further include all of the impairments in IDEA section 602(3),
including those impairments enumerated under IDEA section 603(3)(B)
that are applicable to children, aged 3 through 9, who experience
developmental delays in physical development, cognitive development,
communication development, social or emotional development, or adaptive
development. Another commenter also supported the inclusion of
developmental delay in States' review for significant
disproportionality.
Two commenters recommended that blindness, orthopedic impairment,
and hearing impairments be added to the list of impairments in proposed
Sec. 300.647(b)(3)(ii).
Discussion: The Department agrees that it is unnecessary to require
States to examine the seven low-incidence impairments listed in IDEA
section 602(3) and in Sec. 300.8 that were not
[[Page 92411]]
included in proposed Sec. 300.647(b)(3)(ii) for significant
disproportionality. Given the low incidence of these impairments, the
Department continues to believe that disproportionality based on race
or ethnicity will not be reliably identified as systemic or otherwise
indicative of persistent underlying problems. Further, given that the
Department has not previously required States to examine these
impairments, doing so now would impose a new data analysis burden that
the Department does not believe is necessary. For this same reason, the
Department declines to add to Sec. 300.647(b)(3)(ii) blindness,
orthopedic impairment, hearing impairments, or the developmental
impairments applicable to children aged three through nine defined
under IDEA section 602(3)(B).
Changes: None.
Commenter: One commenter recommended the use of an alternative risk
ratio method to capture the disability categories in IDEA section
602(3). The commenter suggested that the alternative risk ratio method
be used when a racial or ethnic group does not meet a minimum
population requirement for any of the disability categories. The
commenter suggested this approach to help address the possible under-
identification of hearing loss.
Discussion: Again, the Department believes that it is unnecessary
to require States to examine the seven low-incidence impairments listed
in IDEA section 602(3) that were not included in proposed Sec.
300.647(b)(3)(ii) for significant disproportionality. Given the low
incidence of these impairments, disproportionality based on race or
ethnicity may not be reliably identified as systemic or otherwise
indicative of persistent underlying problems, and the Department has
not previously required States to examine these impairments. Nothing,
however, would prevent a State from examining low-incidence
disabilities for racial and ethnic disparities--or for disproportionate
overrepresentation--if it chose to do so. Moreover, while a State may
choose to review an LEA's policies, procedures, and practices for
compliance with IDEA requirements related to identification and
evaluation under its separate general supervisory authority in IDEA
section 612(a)(22) or monitoring authority in section 616, the
consequences set out in IDEA section 618(d)(2) and these regulations,
including mandating the use of comprehensive CEIS, do not apply.
Change: None.
Comments: One commenter recommended that the Department exclude any
of the six impairments from a review for significant disproportionality
that were not part of the research base informing the 2004 IDEA
regulations related to significant disproportionality in special
education.
According to the commenter, concerns regarding overrepresentation
in special education were limited to the identification of intellectual
disabilities, specific learning disabilities, and emotional
disturbance.
Discussion: We decline to make the commenter's requested change to
Sec. 300.647(b)(3). IDEA section 618(d) (20 U.S.C. 1418(d)) requires
that States examine LEAs for significant disproportionality based on
race and ethnicity in the identification of particular impairments. We
believe there is a sufficient statutory basis to extend the requirement
for States to examine LEAs for significant disproportionality to all of
the impairments included in IDEA section 602(3); however, the
Department has determined that, given the low incidence of several of
the listed impairments, it may be difficult to reliably identify
significant disproportionality with respect to these impairments that
is systemic or otherwise indicative of persistent underlying problems.
Change: None.
Comments: One commenter recommended that under proposed Sec.
300.647(b)(3)(ii), States should not be required to examine LEAs for
significant disproportionality in the identification of children with
specific learning disabilities. This commenter noted that some States
have put in place a process whereby children must receive certain
services--specifically, response to intervention--prior to being
identified with specific learning disabilities. This commenter
suggested that the use of evidence-based interventions has reduced the
number of children requiring special education services.
Discussion: The Department appreciates the comment and agrees that
the provision of multi-tiered systems of support, such as response to
intervention, can be useful and important in serving children with
disabilities. At the same time, we note that States and LEAs have an
obligation under Sec. Sec. 300.304 to 300.311 to ensure that the
evaluation of children suspected of having a disability is not delayed
or denied because of the implementation of specific strategies or
interventions. Under Sec. 300.307, States must adopt criteria for
determining whether a child has a specific learning disability. The
criteria adopted by the State: (1) Must not require the use of a severe
discrepancy between intellectual ability and achievement for
determining whether a child has an specific learning disability; (2)
must permit the use of a process based on the child's response to
scientific, research-based interventions; and (3) may permit the use of
other alternative research-based procedures for determining whether a
child has a specific learning disability. (34 CFR 300.307, OSEP
Memorandum 11-07, January 21, 2011).
We decline to revise Sec. 300.647(b)(3)(ii) as suggested by the
commenter. In its 37th Annual Report to Congress on the Implementation
of the Individuals with Disabilities Education Act (2015) (37th IDEA
Annual Report), the Department noted that the percentage of the
resident population ages 6 through 21 served under IDEA, Part B,
identified with specific learning disabilities was 39.5 percent of
children, the highest of all impairments.
The fact that specific learning disabilities, as a category, has
the highest incidence of all the impairments recognized by IDEA
suggests that it may be one of the most important disability categories
to review for significant disproportionality. Moreover, given that it
is a high-incidence category, removing specific learning disabilities
from the analysis may have the unintended effect of increasing
identification of this impairment to minimize any appearance of racial
and ethnic disparities in the identification of children with
impairments that are subject to examination for significant
disproportionality. To prevent this possibility and encourage the
appropriate identification of children with disabilities, the
Department believes it best to continue to require States to review
LEAs for significant disproportionality with respect to specific
learning disabilities.
Changes: None.
Comments: Several commenters recommended that the Department remove
autism from the list of impairments under proposed Sec.
300.647(b)(3)(ii) that States must examine in LEAs for significant
disproportionality. Of these commenters, one noted that autism
identification generally follows a medical diagnosis. Several explained
that some States require that a medical evaluation be conducted or a
medical diagnosis be considered before a child can be identified with
autism. Several others generally noted that it is rare that an LEA
diagnoses a child as having autism. As a result, one commenter
concluded, any over-identification of autism may be attributable to a
medical professional in the LEA and not
[[Page 92412]]
necessarily indicative of an issue in the LEA itself. Another commenter
noted that, since a diagnosis of autism is not under the control of the
LEA, the LEA would have no means or capacity to remedy and correct a
finding of significant disproportionality.
Several other commenters stated that a failure to provide children
with special education services after a medical diagnosis of autism
could result in noncompliance with IDEA. Finally, several commenters
examined the Department's report--Racial and Ethnic Disparities in
Special Education: A Multi-Year Disproportionality Analysis by State,
Analysis Category, and Race/Ethnicity (2015)--and found that the most
egregious disparities with respect to autism applied to White children.
These commenters believed that requiring LEAs to address significant
disproportionality with respect to White children was not the intention
of IDEA.
With respect to special education eligibility determinations, a
last commenter stated that LEAs generally do not make clinical
diagnoses. Rather, LEAs and schools are charged with determining
whether children meet State and Federal criteria to be eligible for
special education and require specialized instruction.
Discussion: In its 37th Annual Report, the Department noted that
the percentage of the resident population of children with autism ages
6 through 21 served under IDEA, Part B, increased markedly between 2004
and 2013. Specifically, the percentages of three age groups--ages 6
through 11, 12 through 17, and 18 through 21--that were reported under
the category of autism were 145 percent, 242 percent, and 258 percent
larger in 2013 than in 2004, respectively.
Given those increases, and to encourage the appropriate
identification of children with disabilities, the Department believes
it best to continue to require States to review LEAs for significant
disproportionality with respect to autism.
We further note that, even if disparities in an LEA's
identification of autism tend to result from disparities in the medical
diagnosis of autism, it may be the case that the latter disparities are
due to factors such as unequal access to medical care, which may result
in children not being referred for an evaluation. In this instance, the
broader use of developmental screening for young children--which may be
supported using comprehensive CEIS--may help to identify children in
other racial or ethnic groups that may currently be underrepresented
among children with impairments such as autism that may follow a
medical diagnosis.
Last, we disagree with the commenters' suggestion that IDEA section
618(d) was not intended to address significant disproportionality that
impacts White children. The plain language of IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to identify significant
disproportionality, based on race or ethnicity, without any further
priority placed on specific racial or ethnic groups. For that reason,
the Department believes that the statute directs States to address
significant disproportionality impacting all children.
Changes: None.
Comments: A number of commenters recommended that the Department
remove other health impairments (OHI) from the list of impairments
under proposed Sec. 300.647(b)(3)(ii) that States must examine for
significant disproportionality. Of these, some commenters noted that
some States require that a medical evaluation be conducted, or a
medical diagnosis be considered, before a child is determined to have
OHI. Still others noted that it is rare for an LEA to diagnose a child
with OHI and that failure to provide children with special education
services when an evaluation indicates OHI could result in non-
compliance with IDEA. One commenter stated that, since a diagnosis of
OHI is not under the control of the LEA, the LEA would have no means or
capacity to remedy and correct a finding of significant
disproportionality. Finally, some commenters stated that the
Department's data show that the most egregious disproportionality with
respect to OHI applies to White children, but requiring LEAs to address
significant disproportionality with respect to White children was not
the intention of IDEA.
With respect to special education eligibility determinations, a
last commenter stated that LEAs generally do not make clinical
diagnoses. Rather, LEAs and schools are charged with determining
whether children meet State and Federal criteria to be eligible for
special education and require specialized instruction.
Discussion: In its 37th Annual Report, the Department noted that
the percentage of the resident population with OHI ages 6 through 21
and served under IDEA, part B, increased markedly between 2004 and
2013. Specifically, the percentages of three age groups reported--ages
6 through 11, 12 through 17, and 18 through 21--were 45 percent, 624
percent, and 104 percent larger in 2013 than in 2004, respectively.
Given recent increases in the percentage of children identified
with OHI, and to encourage the appropriate identification of children
with disabilities, the Department believes it best to continue to
require States to review LEAs for significant disproportionality in
OHI. Also, we note that, even if disparities in the identification of
OHI tend to result from disparities in the medical or clinical
diagnosis of OHI, it may be the case that the latter disparities are
due to factors such as unequal access to medical care, which may result
in children not being referred for an evaluation. In this instance, the
broader use of developmental screening for young children--which may be
supported using comprehensive CEIS--may help to identify children in
other racial or ethnic groups that may currently be underrepresented in
disability categories, like OHI, that may follow a medical diagnosis.
Last, we disagree with commenters' suggestion that IDEA section
618(d) was not intended to address significant disproportionality that
impacts White children. The plain language of IDEA section 618(d)
requires States to identify significant disproportionality, based on
race or ethnicity, without any further priority placed on specific
racial or ethnic groups. For that reason, the Department believes that
the statute directs States to address significant disproportionality
impacting all children.
Changes: None.
Comment: Several commenters responded to Directed Question #4 of
the NPRM, which inquired whether the Department should continue to
require States to review LEAs for significant disproportionality based
on race or ethnicity in the placement of children with disabilities
inside the regular classroom between 40 percent and 79 percent of the
day.
Multiple commenters suggested that the Department continue the
requirement. Of these commenters, a few noted that this type of
placement data is already collected by States and might be helpful in
addressing other issues of disproportionality. One commenter advocated
for leaving this placement in the regulations and noted that 50 percent
of the day is the equivalent of lunch, recess, gym, morning meeting,
and art class. In the commenter's opinion, placement in the classroom
only 50 percent of the day is a significant amount of isolation, and
may mean a potential lack of access to the general education
curriculum.
One commenter stated that research shows that almost every child of
color
[[Page 92413]]
with disabilities who takes an alternate assessment based on alternate
academic achievement standards is segregated from their peers for all
or most of the day, and that the lack of integration in the regular
classroom is associated with lower performance on State general
assessments. The commenter suggested that this information supports the
continued inclusion of placement inside the regular classroom between
40 percent and 79 percent of the day in States' review for significant
disproportionality.
Conversely, a few commenters expressed their preference that the
Department not require States to review for significant
disproportionality placement in the regular classroom between 40 and 79
percent of the school day. These commenters noted that data regarding
this placement provides little information about the severity of a
child's disability, the classroom supports the child receives, or the
quality of the services in that setting. Many commenters noted that 40
percent to 79 percent of the school day covers a wide range that
encompasses anywhere from 2.4 to 4.7 hours. These commenters stated
that while only 2.4 hours in the regular classroom may be more
restrictive, 4.7 hours may not be; therefore, this placement is
difficult to categorize.
Several commenters noted that it is generally meaningless to draw
conclusions about the percentage of time a child is in a regular class
and whether it means the LEA has provided services in the least
restrictive environment.
One commenter asserted that one State may have difficulty
collecting data regarding this placement, as the State reports
placement using different percentages of time spent in the regular
classroom (i.e., 20 percent or less, less than 60 percent and greater
than 20 percent, 60 percent or more). The commenter expressed concern
that requiring States to change their placement categories would
require changes to State special education regulations, resulting in
significant increases in paperwork and resource expenditures.
Additionally, several commenters stated that reporting additional
placement data will be a burden for LEAs and will not provide useful
information.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to examine data to determine if significant disproportionality based on
race and ethnicity is occurring in the State and LEAs of the State with
respect to the placement of children with disabilities. To meet their
general data reporting obligations under IDEA section 618(a) (20 U.S.C.
1418(a)), States currently submit to the Department a count of children
with disabilities, disaggregated by race and ethnicity, who are placed
inside the regular classroom between 40 percent and 79 percent of the
day, inside the regular classroom less than 40 percent of the day
(i.e., inside self-contained classrooms) and inside separate settings
(i.e., separate schools and residential facilities). OSEP Memorandum
08-09 and FILE C002, OMB Control Nos. 1875-0240 and 1820-0517.
Consistent with this reporting requirement, the Department initially
proposed requiring States to review each of these three placements for
significant disproportionality, as racial and ethnic disparities in
these placements may suggest that some children with disabilities have
less access to the least restrictive environment to which they are
entitled under IDEA section 612(a)(5) (20 U.S.C. 1412(a)(5)). The
Department did not include in the NPRM any requirements that States
expand the scope of their data collection with respect to placement.
However, the Department asked Directed Question #4 to ascertain
whether States and LEAs should be required to determine whether there
is significant disproportionality in LEAs with respect to placement in
the regular classroom between 40 percent and 79 percent of day. After
reviewing the perspectives shared by commenters, the Department agrees
to no longer require that States determine whether significant
disproportionality, by race or ethnicity, is occurring within an LEA
with respect to placement in the regular classroom between 40 percent
and 79 percent of the day. The Department acknowledges that there could
be significant qualitative differences in the opportunities for
interaction with nondisabled peers for students at the lower end of
this range and students at the upper end. While the Department
emphasizes that placement decisions must be individualized, we also
recognize that, given these differences, for students on the lower end
of this range, there could be unintended incentives to improperly place
them in settings where they spend less classroom time with nondisabled
students rather than more. Given the qualitative differences and the
broad range of class time addressed in this category, we no longer
believe that addressing significant disproportionality in LEAs with
regard to this placement category is appropriate.
The Department appreciates the comments supporting the proposed
requirement and we recognize that an examination of the placement of
children with disabilities outside of the regular classroom more than
40 percent of the day and less than 79 percent of the day could, in
some limited cases, help to highlight systemic issues. In the
Department's view, on balance, the continued use of this category for
determining significant disproportionality is not warranted.
Changes: The Department has revised proposed Sec. 300.647(b)(4) to
remove the requirement that States identify significant
disproportionality with respect to the placement of children with
disabilities ages 6 through 21, inside a regular class more than 40
percent of the day and less than 79 percent of the day.
Comment: One commenter expressed concern that the standard
methodology requires States to examine risk ratios for each placement
type separately, rather than recognizing their interconnectedness. The
commenter suggested, for example, that an LEA could evade a finding of
what the commenter calls ``significant discrepancy'' by moving children
from partial inclusion to a substantially separate classroom. The
commenter stated that this would cause the LEA to not be identified
with ``significant discrepancy'' with respect to the number of children
being educated in partially inclusive settings. The commenter concluded
that this approach would not create the right incentives for LEAs.
Discussion: We appreciate the commenter's concern. The Department
has heard from several commenters regarding our initial proposal to
require States to review for significant disproportionality the
placement of children with disabilities in the regular classroom for no
more than 79 percent of the day and no less than 40 percent of the day.
After reviewing the comments, we agree that this placement covers too
broad a range of hours within the school day to help States to identify
significant disproportionality with respect to placement. In
considering this commenter's perspective, we find it may also be the
case that, to avoid a determination of significant disproportionality
with respect to placement in the regular class for no more than 79
percent of the day and no less than 40 percent of the day, LEAs may
have an incentive to shift children with disabilities from this more
inclusive placement to self-contained
[[Page 92414]]
classrooms or separate schools. With this in mind, the Department will
remove the proposed language requiring States to review LEAs, or their
racial or ethnic groups, for significant disproportionality with
respect to placement in the regular classroom for no more than 79
percent of the day and no less than 40 percent of the day from Sec.
300.647(b)(4). With this change, the Department has narrowed States'
review of significant disproportionality to the most restrictive
placements, including self-contained classrooms, separate schools, and
residential facilities. We believe that Sec. 300.647(b)(4), as
revised, encourages LEAs to focus on placing children in the proper
setting by requiring them to analyze only the most significant removals
from the regular classroom.
Changes: As discussed above, the Department has revised proposed
Sec. 300.647(b)(4) to remove the requirement that States identify
significant disproportionality with respect to the placement of
children with disabilities ages 6 through 21, inside a regular class
more than 40 percent of the day and less than 79 percent of the day.
Comment: Several commenters noted that the Department should not
expand data collection regarding disproportionality in placements as
discretion regarding placement is not entirely within the hands of the
LEA. Instead, these commenters asserted, placement involves difficult
decisions by IEP Teams, including parents, that can change
significantly from year to year (and sometimes throughout the year).
The commenters added that the only way to address significant
disproportionality would be to change a child's educational placement,
which by law is the decision of an IEP Team that includes the parents.
We interpreted these comments to refer to the requirements of Sec.
300.116(a)(1), which specifies that placement is to be determined by a
group of persons, including the parents, and other persons
knowledgeable about the child. One commenter expressed concern that
LEAs will stop thinking about the individual needs of the child and
instead include them in regular classes to avoid a determination of
significant disproportionality.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) explicitly
requires States to review LEAs for significant disproportionality based
on race and ethnicity with respect to placement, and, when significant
disproportionality is identified, to (1) require LEAs to undergo a
review and, if appropriate, revision of policies, practices, and
procedures; (2) publicly report on any revisions; and (3) reserve 15
percent of their IDEA Part B funds for comprehensive CEIS. This
statutory language is consistent with the mandate that all children
with disabilities receive special education and related services in the
least restrictive environment. (IDEA section 612(a)(5) (20 U.S.C.
1412(a)(5))).
When LEAs have significant disproportionality with respect to
placement, the LEA must review its policies, practices, and procedures
to ensure that the policies and procedures conform with IDEA
requirements and that the practice of placement teams in implementing
these policies and procedures is also consistent with IDEA--such as
involving parents in placement decisions, and ensuring placement
decisions are made in conformity with least restrictive environment
requirements. (34 CFR 300.114 and 116(a)(1)). In any case, these
regulations do not include an expansion of data collections to support
State review for significant disproportionality in placement. In
Question 14 of OSEP Memorandum 08-09 (July 28, 2008), the Department
clarified that States had an obligation to use the data collected for
reporting under IDEA section 618 and must, at a minimum, examine data
for three of IDEA section 618 reporting categories: Children who
received educational and related services in the regular class no more
than 79 percent of the day and no less than 40 percent of the day,
children who received special education and related services in the
regular class for less than 40 percent of the day, and children who
received special education and related services in separate schools and
residential facilities. However, as we note in this section of this
document, the Department is revising proposed Sec. 300.647(b)(4) to no
longer require States to review LEAs for significant disproportionality
with respect to placement in the regular class no more than 79 percent
of the day and no less than 40 percent of the day.
Changes: None.
Comment: Several commenters expressed that it is worth noting how
much time a child spends in a self-contained classroom as it is a
unique placement.
Discussion: The Department agrees and has retained the requirement
that States review LEAs for significant disproportionality with respect
to placement in the regular classroom less than 40 percent of the day.
In general, when children spend less than 40 percent of the day in the
regular classroom, the Department considers most of these children to
be placed in self-contained classrooms.
Changes: None.
Comment: One commenter noted that the populations reviewed under
proposed Sec. 300.647(b)(3) do not align with the populations reviewed
under proposed Sec. 300.647(b)(4). The commenters specifically noted
that none of the subsections under Sec. 300.647(b)(4) reference the
six specific impairments enumerated under Sec. 300.647(b)(3)(ii). The
commenter also noted that the two provisions include differences in the
ages of the children reviewed. The commenter requested that the
Department revise both provisions so that the populations reviewed for
significant disproportionality are consistent across the review of
identification, placement, and discipline.
Discussion: In OSEP Memorandum 08-09, the Department previously
provided guidance on the data that IDEA section 618(d) requires States
to examine to determine if significant disproportionality based on race
and ethnicity was occurring with respect to the identification,
placement, or discipline of children with disabilities. This data is
consistent with that already required of States to meet their reporting
obligations under IDEA section 618(a), and which were established,
following notice and comment, in OMB-approved data collections 1875-
0240 and 1820-0517. FILE C002, 2013. As we noted in the NPRM, the
Department intentionally designed Sec. 300.647(b)(3) and (4) to mirror
the guidance previously provided in OSEP Memorandum 08-09, and current
data collection requirements, so as not to introduce confusion or add
unnecessary burden.
Changes: None.
Comments: Various commenters requested that the Department extend
the list of placements that States must review to determine whether
significant disproportionality based on race or ethnicity is occurring
within their States.
Several commenters requested that the Department require States to
review LEAs for significant disproportionality in the placement of
children in hospital, homebound and correctional settings, as well as
private schools, if they include more than 10 children. Several
commenters specifically argued that children with disabilities in
correctional education programs should be included, generally, in the
calculations for significant disproportionality.
Commenters reported that, according to advocates and attorneys, the
number of children with disabilities placed in homebound or tutoring
programs--and,
[[Page 92415]]
as a consequence, provided with only one or two hours of instruction a
day--is increasing due to unaddressed disability-related behaviors in
school and efforts to reduce the use of suspension and expulsion. In
many cases, according to the commenters, no attempt is made to provide
these children with supplementary aids and services in less restrictive
settings. The commenters stated that these practices likely have a
greater impact on low-income families and children of color and
concluded that the need to review this low-incidence placement for
significant disproportionality is worth the risk of false positive
identification of LEAs.
Further, commenters stated that LEAs play a role in the placement
of children with disabilities in correctional facilities through the
use of school-based arrests and juvenile justice referrals. One
commenter clarified that States need to answer the question of whether
children with disabilities were receiving special education services
and supports in correctional facilities and whether there is
significant disproportionality in those placements.
Discussion: The Department continues to believe that it is
inappropriate to require States to examine placement in correctional
facilities, or in homebound or hospital settings, given that LEAs
generally have little, if any, control over a child's placement in
those settings. Further, given that the Department has not previously
required States to examine data to determine if significant
disproportionality is occurring in these placements, a new requirement
that States examine these placements in LEAs would represent a new data
analysis burden that the Department does not believe is warranted.
Change: None.
Comments: A commenter requested that the Department require States
to: (1) Report the number and proportion of inmates in correctional
facilities within the State who have been identified as children with
disabilities and are receiving special education services, and (2) make
a determination of significant disproportionality, by disability
status, with respect to placement in correctional facilities.
Discussion: We decline to require States to take either action.
First, States already report to the Department counts of children with
disabilities in correctional facilities as part of IDEA Part B Child
Count and Educational Environments Collection. OMB Control No. 1875-
0240 and File C002, 2013. Further, IDEA section 618(d) (20 U.S.C.
1418(d)) explicitly requires States to collect and examine data to
identify significant disproportionality by race and ethnicity in the
LEAs of the State. Insofar as correctional facilities are not
constituted as LEAs in the State, IDEA section 618(d) does not require
States to conduct a significant disproportionality analysis there, and
it would be an inappropriate expansion of the statutory requirement to
mandate that analyses. However, to the extent that the educational
programs in specific correctional facilities or systems are constituted
as LEAs, States are required under IDEA to assess whether there is
significant disproportionality by race and ethnicity whenever the
populations are of sufficient size.
Changes: None.
Comment: One commenter requested that the Department require States
to measure disparities in placement within separate schools for
children who are blind and children who are deaf. (0221, 0227). The
commenter stated that these schools often have separate sub-campuses or
separate residential placements and academic tracks for children with
multiple disabilities, and that is likely that children of color with
disabilities are at greater risk of placement into these sub-campuses.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires SEAs
to collect and examine data to determine if significant
disproportionality based on race and ethnicity is occurring in the
State or the LEAs of the State. Accordingly, unless a separate school
is an LEA in its own right, it will not be reviewed for significant
disproportionality.
Further, as we have stated elsewhere in this document, a State must
annually collect and examine data to determine, using the standard
methodology in Sec. 300.647, if significant disproportionality is
occurring in LEAs that serve only children with disabilities. However,
we have clarified in Sec. 300.646(e) that LEAs that serve only
children with disabilities are not required to reserve IDEA Part B
funds for comprehensive CEIS.
Changes: None.
Comment: One commenter expressed concern that disciplinary removal
data may not be collected consistently. The commenter stated that
proposed Sec. 300.647(b)(4) allows States to either compare rates for
children with disabilities to rates for nondisabled children within an
LEA or compare among LEAs for children with disabilities in the State.
A second commenter requested that the Department clarify whether a
State might use the same calculation to determine significant
disproportionality with respect to disciplinary removal that it
currently uses to identify significant discrepancy for purposes of APR/
SPP Indicator 4. The commenter added that the State currently compares
children with disabilities to children without disabilities within an
LEA, and does not make comparisons between children with disabilities
across LEAs.
Discussion: We appreciate the comments seeking to interpret or
recommend the comparisons required under Sec. 300.647(b)(4). This
provision does not require, nor does it allow, States to compare
children with disabilities to children without disabilities within an
LEA or across LEAs for the purpose of identifying significant
disproportionality. Rather, Sec. 300.647(b)(4) requires States to
compare children with disabilities in one racial or ethnic group to
children with disabilities in all other racial groups within an LEA.
When reviewing a racial or ethnic group within an LEA with a comparison
group that does not meet the State's population requirements, the State
will compare children with disabilities in one racial or ethnic group
to children with disabilities in all other racial or ethnic groups
within the State.
Moreover, we note that unlike the language in IDEA section 618(d),
the language in section 612(a)(22) expressly provides for an
examination of data for significant discrepancies (in the rates of
long-term suspensions and expulsions of children with disabilities)
among the LEAs in the State or compared to rates of nondisabled
children in those LEAs. Thus, Congress knew how to require comparisons
and expressly did so in IDEA section 612(a)(22), but not in sections
618(d), which is the subject of these regulations.
Change: None.
Comments: One commenter suggested that the Department remove from
proposed Sec. 300.647(b)(4)(vi), (vii) and (viii) all mention of in-
school suspensions, as the term is not defined and the implementation
of in-school suspension varies greatly from LEA to LEA.
Discussion: We generally expect that States will review LEAs for
significant disproportionality using the same IDEA section 618 data
reported to the Department. Under the IDEA Part B Discipline
Collection, in-school suspension is defined as ``instances in which a
child is temporarily removed from his/her regular classroom(s) for
disciplinary purposes but remains under the direct supervision of
school personnel, including but not limited to children who are
receiving the services in their IEP, appropriately participate in
[[Page 92416]]
the general curriculum, and participate with children without
disabilities to the extent they would have in their regular placement.
Direct supervision means school personnel are physically in the same
location as students under their supervision.'' OMB Control No. 1875-
0240; Data Accountability Center, 2013.
Change: None.
Comments: A few commenters requested that the Department modify the
proposed regulations to require States to collect and analyze data to
determine if significant disproportionality by English language
proficiency or gender is occurring with respect to the identification,
placement, or discipline of children with disabilities. These
commenters argued that IDEA provides the Department with authority to
require States to submit demographic data on children with disabilities
beyond race and ethnicity. Some of these commenters stated that the
ability to disaggregate and cross-tabulate data is essential to
understanding disparities in treatment between subgroups of children.
One commenter noted that, according to the NPRM, English Learners are
at greater risk for being disproportionately identified as children
with a disability. This commenter stated that there are other
demographic factors--beyond race and ethnicity--that should be
considered when evaluating significant disproportionality across
identification, placement, and discipline, including socioeconomic and
linguistic status.
A few commenters cited research suggesting that school-age boys are
over-identified as having disabilities, while school-age girls are
under-identified. A last commenter stated that gender deserved
heightened attention, especially as it relates to identification for
autism and emotional disturbance.
Discussion: IDEA section 618(d) (20 U.S.C. 1418(d)) requires States
to collect and examine data to determine whether significant
disproportionality based on race and ethnicity is occurring with
respect to the identification, placement, and discipline of children
with disabilities in the State or the LEAs of the State. The Department
believes that requiring, or permitting, analysis for significant
disproportionality based on sex, English language proficiency, or
socioeconomic status is beyond the scope of IDEA section 618(d) and
inappropriate for these regulations. Accordingly, the Department will
only require States to identify significant disproportionality based on
race and ethnicity and will not require States to expand their review
to include significant disproportionality based on factors such as sex,
English language proficiency, or socioeconomic status. As with other
areas of review, there is nothing in IDEA that would prevent review of
data for significant disproportionality based on factors such as sex or
English language proficiency. In addition, States may choose to review
policies, procedures, and practices of an LEA for compliance with IDEA
requirements under its general supervisory authority in IDEA section
612(a)(11) or monitoring authority in section 616; however, the
consequences of a determination of significant disproportionality based
on other factors not set out in these regulations--e.g., sex or English
language proficiency--may not include mandating the use of
comprehensive CEIS as set out in IDEA section 618(d)(2) and these
regulations.
Changes: None.
Comments: A large number of commenters offered perspectives as to
whether children ages three through five should be included in States'
review for significant disproportionality in the identification of
children as children with disabilities and in the identification of
children as children with a particular impairment.
Several commenters expressed that it is inappropriate to consider
ages three through five in a determination of significant
disproportionality, as some LEAs are not responsible for early
intervention. One commenter stated that data used to identify
significant disproportionality is also used in Indicators 9 and 10 of
the SPP/APR, in which States have been instructed to use data only on
children ages 6 through 21. The commenter requested that the age ranges
used to identify disproportionate representation under IDEA section
612(a)(24) (20 U.S.C. 1412(a)(24)) and those used to identify
significant disproportionality under IDEA section 618(d) (20 U.S.C.
1418(d)) remain consistent. Another commenter noted that the proposed
regulations require States to report data on three through five year
olds that is not currently reported. This commenter noted that States
cannot calculate data regarding placement for children ages three
through five because there are no peers in the regular classroom to
compare the numbers. Two commenters noted that most States do not have
a data collection mechanism to make determinations of whether
significant disproportionality, based on either identification or
discipline, for children ages three and four, is occurring. These
commenters urged the Department to eliminate the requirement to
determine significant disproportionality for three and four year olds.
Another commenter built on this argument, stating that, in a State
without universal preschool, a majority of the children enrolled in
public preschool are children with disabilities ages three to five. The
commenter stated that this disproportional loading of preschool
children into the analysis will result in the identification of nearly
all of one State's small regional elementary LEAs.
One commenter suggested that the Department require States to
review LEAs for significant disproportionality with respect to
identification only among children age 6 through 21. Other commenters
noted that the inclusion of preschool-aged children is problematic
because, without universal preschool, there is no reliable method for
determining the total population of children ages three through five
and, therefore, no appropriate denominator for the risk calculation.
One commenter noted that, because preschoolers without disabilities do
not have the same guarantee of a free appropriate public education as
their peers with disabilities, States would have to use general census
data, rather than enrollment, to identify the population of three and
four year olds for purposes of determining significant
disproportionality. In one State, according to one commenter, the State
is the LEA responsible for the education of children with disabilities
ages three through five. Given this context, the commenter expressed
concern that the requiring States to review ages three through five for
significant disproportionality will create a disincentive to offer non-
mandated early intervention programs.
Conversely, several commenters suggested that the Department
require States to review the identification of three through five year
old children with disabilities only when there is a valid comparison or
reliable baseline group within the public school.
A number of commenters generally supported the Department's
proposal to lower the age range for the calculation of
disproportionality for identification and discipline from ages 6 to 21
to ages 3 to 21. Commenters noted that lowering the age limit of each
State's review of significant disproportionality in both identification
and discipline is an important step in addressing the importance of the
preschool years, and focusing attention on early childhood discipline.
Discussion: The Department has previously issued guidance
explaining which specific disability categories, types of discipline
removals, and placements that States must review for significant
disproportionality based on
[[Page 92417]]
race and ethnicity under IDEA section 618(d). OSEP Memorandum 08-09,
July 28, 2008. This guidance included only those identification
categories, disciplinary removals, and placements--as well as the age
ranges to be reviewed for each--that were consistent with the data
collection that States submit to the Department each year to satisfy
their reporting obligations under IDEA section 618(a) (20 U.S.C.
1418(a)). OMB Control Nos. 1875-0240 and 1820-0517 and File C002, 2013.
At present, States submit to the Department data on children identified
with any disability, autism, intellectual disability, emotional
disturbance, specific learning disabilities, other hearing impairments,
speech and language impairment for ages 3 through 21, and data on
discipline removals for children ages 3 through 21.
It was the Department's intention to align the proposed
regulations, to the extent possible, with IDEA section 618 data
collection requirements so as to avoid any new data collection burden
and any new data analysis burden on the States. At the same time,
however, we must balance our desire to minimize burden with our
interest in ensuring that children are not mislabeled. As this may be
especially critical for young children, we agree with commenters that
including children ages three through five is a meaningful step in
recognizing the importance of preschool and early childhood education.
To that end, the Department will maintain the requirement for
States to examine populations age 3 through 21, for purposes of
significant disproportionality due to identification. We also agree,
however, that the inclusion of children ages three through five in the
State's review for significant disproportionality--with respect to the
identification of disabilities and impairments--may create some
complications or additional burden related to data collection and
comparison. We acknowledge, for example, that some LEAs do not yet
provide universal preschool, making a determination about the total
population of children ages three through five more difficult. We also
recognize that this collection would not correspond with current
Indicators 9 and 10 of the SPP/APR, which focus on children ages 6
through 21.
As it is our expectation that States will use the same IDEA section
618 data reported to the Department to examine LEAs for significant
disproportionality, we anticipate that States will use their IDEA, Part
B child count data (rather than Federal census data) to examine
significant disproportionality for children ages 3 through 21.
Additionally, to provide States more time to modify State analyses and
consider how to identify and address factors associated with
significant disproportionality in children with disabilities ages three
through five, the Department will delay the requirement for including
children ages three through five in their examination of significant
disproportionality--with respect to the identification of disabilities
and impairments--until July 1, 2020, in anticipation of more widespread
provision of preschool programs in the future.
We disagree that States do not have data collection procedures to
review LEAs for significant disproportionality due to discipline for
populations ages 3 through 21, as States are currently required to
collect data for purposes of IDEA section 618(a). For that reason, we
will leave unchanged the requirement that States examine populations
ages 3 through 21 for purposes of identifying significant
disproportionality due to discipline.
Finally, we disagree that requiring the review of children ages
three through five for significant disproportionality will create a
disincentive for States or LEAs to offer non-mandated early
intervention programs. We believe that early education and early
intervention can have a number of salutary effects--not least being the
reduced need for later, more intensive services--that serve as ample
incentive for States to invest in these programs. Moreover, even in
those instances in which States, not LEAs, are responsible for the
provision of early intervention, the benefits of ensuring that this
population is not subject to significant disproportionality outweigh
any potential disincentives. Therefore, we will delay the inclusion of
children ages three through five in the review of significant
disproportionality with respect to the identification of children as
children with disabilities, and with respect to the identification of
children as children with a particular impairment, until July 1, 2020.
Changes: None.
Comments: Several commenters suggested that the Department allow
States to use a single factor analysis and consider the total
disability population when calculating disproportionality with respect
to placement. We understood these comments to suggest that the
Department allow States to identify LEAs with significant
disproportionality based on the extent to which race or ethnicity is
predictive of a child's placement.
Discussion: As we discussed in Under-Identification of Children
with Disabilities by Race and Ethnicity, the Department interprets IDEA
section 618(d) (20 U.S.C. 1418(d)) to require States to identify
significant disproportionality based on race and ethnicity,
irrespective of the causes of the disparity. The statute anticipates
that the investigation of the causes of the disparity will take place
after the significant disproportionality has been identified, as part
of the implementation of the statutory remedies provided for under IDEA
section 618(d)(2) (20 U.S.C. 1418(d)(2)). For this reason, we decline
to allow States to identify LEAs with significant disproportionality
based on the extent to which the State believes race or ethnicity may
predict the placement of a child with a disability.
Changes: None.
Comments: Several commenters offered perspectives on the
requirements for States to review LEAs for significant
disproportionality with respect to disciplinary removals.
A number of commenters recommended that the Department eliminate
the requirement to calculate disciplinary removals of 10 days or fewer,
both in-school and out-of-school, in proposed Sec. 300.647(b)(4)(iv)-
(vii). Of these, some commenters suggested that the requirement itself
is excessive and punitive. Some commenters suggested that schools need
some flexibility to manage behavior. These short-term removals, other
commenters stated, respond to behaviors that are best managed through
IEPs and are typically not as serious as the behaviors that give rise
to removals of more than 10 days. Still other commenters stated that
the requirement hampers school officials' ability to manage behavior,
indicating that LEAs may feel constrained in their options for short-
term removals if removals of fewer than 10 days and removals of 10 days
or more are treated in the same way in the significant
disproportionality calculation. In addition, these commenters stated
that, by not requiring the review of short-term removals, the
Department would enable States to focus more on the disproportionate
results for schools placing children in disciplinary settings more than
10 days, which constitutes a change of placement.
Some commenters recommended removing the requirement for
calculating total disciplinary removals under proposed Sec.
300.647(b)(4)(viii) so as not to double count removals. The commenter
also stated that it is unfair to treat LEAs that have a few short-term
suspensions where behaviors are resolved through changes in IEPs in the
[[Page 92418]]
same way as LEAs that have repeated removals of more than 10 days and
make no changes in IEPs or services for the children involved.
One commenter suggested that, to reduce confusion, the Department
should rewrite proposed Sec. 300.647(b)(4) to separate disciplinary
removals from educational placements and place them under a heading of
discipline. The commenter stated that data must be collected on
exclusionary removals of all students with disabilities, regardless of
the restrictiveness of the setting in which they are served.
One commenter expressed concern that, by including the entire range
of disciplinary options in the required risk ratio calculations--from
alternative education settings to removals by a hearing officer--the
Department will force schools to constantly watch their data for quota
targets for each type of discipline because there are no acceptable
options not subject to the test for significant disproportionality.
Finally, one commenter requested that only discretionary discipline
actions be monitored for significant disproportionality.
Discussion: The Department appreciates all of these comments. We
disagree, however, with several and believe that many of these comments
misstate either the discipline requirements or the requirements in
these regulations. First, it is not clear to the Department that
determining whether significant disproportionality exists for
suspensions of any length in any way burdens the overall ability of
LEAs or schools to manage behavior. Further, Sec. 300.646(c) is
intended, in part, to identify systemic issues in discipline practices,
whether discretionary or not, in order to correct them and improve the
ability of schools to manage behavior overall. Examining LEAs for
significant disproportionality in discipline gives State and local
school officials the opportunity to see where policies, procedures and
practices should be changed--to determine, for example, whether schools
might do more to manage behavior through IEPs, services, and supports
which could be used to address or reduce both short-term and long-term
suspensions. We especially note that under IDEA section 615(k) and the
current regulations at Sec. Sec. 300.530 and 300.531, there is
significant involvement by the IEP Team members in making a range of
decisions related to discipline including manifestation determinations
and interim alternative settings for services. Likewise, in 2016, the
Department released guidance to clarify that, while IDEA section
615(k)(1)(B) (20 U.S.C. 1415(k)(1)(B)) authorizes school personnel to
remove from their current placement children who violate a code of
student conduct, that authority in no way negates the obligation of
schools to provide behavioral supports to children with disabilities as
needed to ensure FAPE. OSEP Dear Colleague Letter, August 1, 2016.
We further disagree that collecting discipline data in any way
leads to the punitive treatment of LEAs. When we published the NPRM,
States already were required under Sec. 300.646(a) to determine
whether there was significant disproportionality in disciplinary
removals of fewer than 10 days, disciplinary removals of more than 10
days, and total disciplinary removals, and States were already
obligated to collect and report the data upon which these
determinations were made. See, OMB Control No. 1875-0240; OSEP
Memorandum 07-09, April 24, 2007. The requirements under Sec.
300.647(b), therefore, cannot reasonably be considered excessive.
Further, while calculating risk ratios for total disciplinary
removals under Sec. 300.646(b)(4)(vii) does involve using the data
already included in Sec. 300.646(b)(4)(iii) through (vi), is the
Department does not view this as double counting but as an amalgamation
of various types of removals. That is, Sec. 300.646(b)(4)(vii) is
intended to allow for a separate review of disciplinary removals that
could include lower-incidence disciplinary actions that may happen too
rarely to allow for a stable risk ratio calculation. This is similar to
the inclusion, in Sec. 300.646(b)(3)(i), of categories of disabilities
set out in Sec. 300.646(b)(3)(ii) and all other categories, including
low-incidence disabilities.
With respect to the comment suggesting that the Department
reorganize Sec. 300.647(b)(4), we believe that the current structure
is sufficiently clear to avoid confusion. The Department further
disagrees that the requirements under Sec. 300.647(b)(4) will force
LEAs to develop quota targets for different types of discipline so as
to avoid a finding of significant disproportionality. Nothing in these
regulations is intended to require LEAs to overturn appropriate prior
decisions or to otherwise affect individual decisions regarding the
identification of children as children with disabilities, the placement
of children with disabilities in particular educational environments,
or the appropriate discipline of children with disabilities.
Finally, nothing in Sec. 300.647 is intended to unfairly target
those LEAs that have a few short-term suspensions where behaviors are
resolved through changes in IEPs by grouping these districts with those
that have repeated removals of more than 10 days, whether or not the
IEP Teams make changes in IEPs or services for the children involved.
It is true that all LEAs are subject to the same State methodology for
determining significant disproportionality, and every LEA where the
State determines there is significant disproportionality is subject to
the same statutory remedies of reserving 15 percent of IDEA Part B
funds for comprehensive CEIS and reviewing, and revising, if
appropriate, policies, practices, and procedures related to
disciplinary removals. One of the purposes of the analyses, however, is
to identify and address significant disproportionality that is
indicative of systemic or otherwise persistent underlying problems,
which may not be revealed when there are too few short-term or long-
term suspensions, whether or not behaviors are proactively resolved
through changes in IEPs.
Changes: None.
Comments: One commenter expressed a concern regarding the
completeness of IDEA section 618 data with respect to the disciplinary
removals of children ages three through five. The commenter stated that
the field of early childhood often does not use the terms suspension or
expulsion to describe a disciplinary removal.
Discussion: As we have discussed previously, the Department
designed Sec. 300.647(b)(4) to mirror IDEA section 618(a) (20 U.S.C.
1418(a)) provisions with respect to the collection of discipline data
and the use of these data to review disciplinary removals, as explained
in our previous guidance. OSEP Memorandum 08-09 (July 28, 2008). This
guidance clearly specified our interpretation that States' review for
significant disproportionality with respect to disciplinary removal
must include children with disabilities, ages three through five.
That said, the Department generally agrees with the commenter that
data completeness and quality is important and will consider ways to
support the work of States to properly collect and report data to the
Department, especially in situations where a State's terminology
differs from the Department's data definitions.
Changes: None.
Comment: A commenter expressed concerns about the inclusion of
residential facilities in proposed Sec. 300.647(b)(4), as LEAs are
generally not the agency responsible for placing children in
residential facilities. In the
[[Page 92419]]
commenter's State, children are counted in the LEA where the facility
is located.
Discussion: When States examine their data to determine whether an
LEA has significant disproportionality, the Department expects that
States will use education placement data that is consistent with those
submitted to the Department for purposes of IDEA section 618(a) and OMB
Control No. 1875-0240. Final Sec. 300.647(b)(4) is consistent with
these data collection requirements and with the Department's previous
guidance regarding States' review of significant disproportionality
with respect to placement in residential facilities. (See, IDEA section
618(d); and Questions and Answers on Disproportionality, June 2009,
Response to Question B-1.) We repeat the Department's position here for
convenience.
We interpret IDEA section 618(d) to require States to include, or
exclude, a child with a disability in its calculation of significant
disproportionality depending on the agency that placed the child in a
residential facility and the location of the residential facility. All
children with disabilities placed in a residential facility in the same
State by an educational agency must be included in the calculation of
significant disproportionality. For purposes of calculating significant
disproportionality, however, a State should assign responsibility for
counting a child with a disability placed in an out-of-district
placement to the LEA that is responsible for providing FAPE for the
child (the ``sending'' LEA) rather than the LEA in which the child has
been placed (the ``receiving'' LEA). Children with disabilities placed
in residential facilities or group homes in the same State by a
noneducational agency (e.g., court systems, Department of Corrections,
Department of Children, Youth and Families, Social Services, etc.) may
be excluded from a State's calculation of significant
disproportionality. Children with disabilities placed in a residential
facility in a different State by an educational agency should be
included in a State's calculation of significant disproportionality in
the LEA responsible for providing FAPE for that child (the sending
LEA). Children with disabilities placed in a residential facility in a
different State by a noneducational agency (e.g., court systems,
Department of Corrections, Department of Children, Youth and Families,
Social Services, etc.) may be excluded from the calculation of
significant disproportionality by both the State in which the child
resides and the State where the residential facility is located.
Changes: None.
Risk Ratio Thresholds (Sec. 300.647(a)(7); Sec. 300.647(b)(1) and
(2); Sec. 300.647(b)(6))
Comments: One commenter questioned whether proposed Sec.
300.647(b)(1) requires States to identify additional LEAs and noted
that, expressing concern that the potential costs of the regulations
outweigh the benefits. The commenter noted that, in the NPRM, the
Department stated that it would examine each State's risk ratio
threshold to determine its reasonableness.
Discussion: The section in the NPRM containing the analysis of
costs and benefits, and the same section in this document, states that
the standard methodology, applied nationwide, will likely result in
more LEAs identified with significant disproportionality. That is
different, however, than requiring States to identify additional LEAs.
Under Sec. Sec. 300.646 and 300.647, States are not required to
identify additional LEAs.
Similarly, while the Department stated that the risk ratio
thresholds selected by the States would be subject to its review, the
Department did not state that this review must strictly adhere to a
particular outcome that may be overly burdensome to States. In general,
the Department does not intend to require States to submit their risk
ratio thresholds for approval prior to the implementation of the
standard methodology. Rather, after these regulations take effect, the
Department will monitor States for any use of risk ratio thresholds
that may be unreasonable and take steps, as needed, to ensure the
States' compliance with Sec. 300.647(b)(1).
To ensure that the Department may accurately and uniformly monitor
all risk ratio thresholds for reasonableness, we have added a
requirement that each State report to the Department all of its risk
ratio thresholds and the rationale for each. The Department has not yet
determined the precise time and manner of these submissions, but it
will do so through an information collection request. States are not
obligated to comply with this reporting requirement until the Office of
Management and Budget approves the Department's information collection
request.
Changes: The Department has added Sec. 300.647(b)(7), which
requires States to report to the Department, at a time and in a manner
specified by the Secretary, all risk ratio thresholds developed under
Sec. 300.647(b)(1)(i)(A) and the rationale for each.
Comments: A number of commenters raised issues with respect to the
process by which States will develop reasonable risk ratio thresholds.
Several of these commenters strongly supported the Department's
proposal to require States to involve their State Advisory Panels in
setting the thresholds. One of these commenters added that we should
require States currently using a method similar to the standard
methodology to review their thresholds with stakeholders prior to
gaining Department approval. One commenter requested that the
Department, prior to the issuance of the final regulations, clarify the
process by which States would assess the reasonableness of their
proposed risk ratio thresholds.
Other commenters suggested that the Department require States to
use a uniform standard-setting process to inform the State Advisory
Panels in developing risk ratio thresholds. One commenter suggested
that the Department require States to undertake a standard-setting
process with stakeholders, including the State Advisory Panels, to
revisit their existing risk ratio thresholds using the new
calculations; generate impact data using these thresholds; and then
apply different thresholds to examine the impact upon disability
subgroups, placement categories, and impairments. The commenter also
recommended that States' risk ratio thresholds, as well as their
business rules for the application of the thresholds, be publicly
posted. The commenter further suggested that States reexamine risk
ratio thresholds every three years to study their impact, adjust for
population changes or new research, and to revise the opportunities for
stakeholder input. Finally, these commenters urged the Department to
require States to include epidemiologists on State Advisory Panels.
Discussion: We agree with commenters that State Advisory Panels
should play a critical role in the development of States' reasonable
risk ratio thresholds. Under IDEA section 612(a)(21)(D)(iii) (20 U.S.C.
1412(a)(21)(D)(iii)), State Advisory Panels have among their duties a
responsibility to ``advise the State educational agency in developing
evaluations and reporting on data to the Secretary under section 618.''
As the selection of risk ratio thresholds will affect the data States
will submit to the Department under the IDEA Part B Maintenance of
Effort (MOE) Reduction and Coordinated Early Intervening Services
(CEIS) data collection required under IDEA section 618--including the
LEAs identified with significant
[[Page 92420]]
disproportionality and the category or categories under which the LEA
was identified (i.e., identification, identification by impairment,
placement, or discipline)--the State Advisory Panel should have a
meaningful role in advising the State on methods to use in establishing
reasonable risk ratio thresholds for determining significant
disproportionality.
However, while the Department does not preclude either a State or
State Advisory Panel from undertaking a standard-setting process and
evaluating impact data in developing a reasonable risk ratio threshold,
we do not find it necessary to prescribe the exact steps States must
take in order to gain input from State Advisory Panels in that process.
Likewise, at this time, the Department does not intend to mandate a
specific process by which a State and its State Advisory Panel should
assess the reasonableness of its proposed threshold, nor do we
currently find it necessary to require States to reestablish their risk
ratio thresholds every three years. As a State has the flexibility to
establish its own reasonable risk ratio threshold, and is required to
do so with input from its State Advisory Panel, the Department expects
that either or both entities may, at any time, seek to reexamine
whether the State's risk ratio threshold continues to be reasonable.
Absent any indication that this practice would not be effective, the
Department currently prefers to allow States and State Advisory Panels
the flexibility to review and revise risk ratio thresholds as necessary
or appropriate, rather than increase their burden by requiring regular
reviews or mandating a specific standard-setting process.
Finally, while epidemiologists may be useful stakeholders for
States as they create reasonable risk ratio thresholds, we believe that
States have sufficient expertise to determine the appropriate
composition of their State Advisory Panels.
Changes: None.
Commenter: A few commenters recommended that the Department ensure
that the regulations outline specific ways that States and LEAs can
meaningfully include all stakeholders in addressing significant
disproportionality. The commenters recommended that States be required
to demonstrate outreach and incorporation of diverse stakeholder input
and advice in setting thresholds and addressing significant
disproportionality through: Documentation of outreach to stakeholders
(including efforts to recruit a diverse State Advisory Panel); posting
of detailed minutes of State Advisory Panel meetings; transparent
publication and communication about State efforts to set reasonable
risk ratio thresholds; demonstration of how stakeholder feedback was
incorporated in defining final thresholds above which
disproportionality is significant; demonstration of stakeholder input
in reviewing and revising State policies, practices, and procedures
related to the identification or placement of children with
disabilities in LEAs identified as having significant
disproportionality; and transparency in noting State efforts and
progress in remedying significant disproportionality.
Discussion: We do not believe it necessary to outline in these
regulations the specific ways that States must document their efforts
to involve stakeholders in the development of risk ratio thresholds.
Under IDEA section 612(a)(21)(D)(iii) (20 U.S.C. 1412(a)(21)(D)(iii)),
State Advisory Panels already have among their duties a responsibility
to ``advise the State educational agency in developing evaluations and
reporting on data to the Secretary under section 618.'' Given these and
other long-standing responsibilities, it is the Department's belief
that States already have in place processes and procedures to secure
input from their State Advisory Panels. Further specific requirements
for stakeholder involvement could add a new data collection or
reporting burden on States, which we do not believe is necessary. As
most of the commenters' suggestions would dramatically increase
paperwork burden for States, and because we believe there are already
sufficient procedures in place for States to work with their State
Advisory Panels, the Department declines to include those requirements
in these regulations.
As discussed elsewhere in this analysis of comments, we also note
that public participation in the adoption and amendment of policies and
procedures needed to comply with IDEA Part B is already addressed by
IDEA section 612(a)(19) and Sec. 300.165. To the extent that
commenters sought requirements for public participation requirements
beyond the ones contained in those provisions, we decline to adopt them
for the reasons discussed above.
Changes: None.
Comments: One commenter expressed concerns that these regulations
will weaken the role of State Advisory Panels and other stakeholder
groups in each LEA. Another commenter asked the Department to clarify
the authority of State Advisory Panels under the proposed regulations.
Discussion: We believe that these regulations help make more
explicit and strengthen the role of State Advisory Panels and other
stakeholders in how States identify significant disproportionality.
Section 300.647(b)(1)(ii)(A) requires consultation with stakeholders,
including the State Advisory Panels, in developing the State's risk
ratio thresholds, minimum cell sizes, minimum n-sizes, and standards
for determining reasonable progress under Sec. 300.647(d)(2). As
discussed elsewhere in this analysis of comments, we also note that
public participation in the adoption and amendment of policies and
procedures needed to comply with IDEA Part B is addressed by IDEA
section 612(a)(19) and Sec. 300.165 would apply, as appropriate. This
helps to ensure greater public awareness, transparency, and input into
how States establish these values and implement these regulations.
Further, in the future, the Department anticipates that all risk
ratios and alternative risk ratios will be made public but has not yet
determined the precise time and manner for this to occur. We anticipate
doing so through an information collection request, through the
Department's own publication of these data, or some combination of the
two. This will help reinforce the review and revision of risk ratio
thresholds, cell sizes, and n-sizes as an iterative public process
within each State.
Changes: None.
Comments: A few commenters asserted that, as State Advisory Panels
have limited family participation, Parent Training and Information
Centers and Community Parent Resource Centers should be required
participants in States' implementation of the standard methodology.
Discussion: The Department agrees with commenters about the
importance of the meaningful involvement of families in the development
of reasonable risk ratio thresholds. We note that State Advisory Panels
are composed of individuals ``involved in, or concerned with, the
education of children with disabilities,'' and must include ``parents
of children with disabilities.'' 20 U.S.C. 1412(a)(21)(B). Section
300.647(b)(1)(i) requires that States involve stakeholders, including
State Advisory Panels, in the development of each State's risk ratio
thresholds.
This advisory role is within the scope of the statutory
responsibility of State Advisory Panels to advise States in developing
evaluations and reporting on data to the Department under IDEA
[[Page 92421]]
section 618. IDEA section 612(a)(21)(D)(iii); 20 U.S.C.
1412(a)(21)(D)(iii). While IDEA does not include a similar statutory
requirement for either Parent Training and Information Centers or
Community Parent Resource Centers, nothing in these regulations that
would prevent a State, or other members of the State Advisory Panel,
from consulting with those entities in the development of risk ratio
thresholds. To the extent that States believe that their input would be
valuable, we encourage States to include Parent Training and
Information Centers and Community Parent Resource Centers in their
deliberations regarding the standard methodology.
Changes: None.
Comments: A number of commenters responded to Directed Question #9,
which inquired, in part, whether there are any circumstances under
which the use of different risk ratio thresholds for different
categories of analysis could result in an unlawful disparate impact on
racial and ethnic groups.
A few commenters expressed their general support for allowing
States to use different risk ratio thresholds for different categories
of analysis. Of these, one commenter specifically supported allowing
three different risk ratio thresholds--one for identification, one for
placement, and one for disciplinary removals. Other commenters noted
that, given the varying incidence rates and resulting cell sizes across
disability categories, placements, and discipline rates, different risk
ratio thresholds would be important in helping to ensure that any
identified disproportionality is indeed significant. A last commenter
noted that States should be allowed to consider setting different risk
ratio thresholds for different categories of analysis (e.g., analysis
of identification, placement, and discipline) if those thresholds are
consistent with advice from stakeholders, including State Advisory
Panels.
Some commenters indicated only partial support for using different
risk ratio thresholds for different categories of analysis. Of these,
one commenter supported the use of different thresholds for the
analyses regarding disciplinary removals, as well as different
thresholds for placement categories, but suggested that all thresholds
used to analyze impairments must be consistent. Other commenters agreed
that thresholds used to determine significant disproportionality in
identification should not change for each impairment.
Several commenters expressed concerns about, or opposed the use of,
different risk ratio thresholds for different categories of analysis.
Of these, some suggested that different risk ratio thresholds would
impede transparency for parents, educators, and the public at large;
impede Federal efforts to monitor States; and make it difficult to
understand why some LEAs would be identified as having significant
disproportionality and not others. Two commenters suggested that the
language allowing different thresholds for different categories of
analysis appeared unconstitutional.
Several commenters cautioned that States should not be permitted to
set higher risk ratios for the categories where racial
disproportionality is most likely to negatively impact historically
disadvantaged groups of children. Some of these commenters suggested
that this flexibility would allow States to avoid identifying LEAs
where disparities have historically been most problematic. These
commenters noted that racial disparities in special education--notably,
identification of intellectual disability and emotional disturbance,
and placement outside the regular classroom--were the result of local
efforts to use disability identification and placement to resist
desegregation requirements and deny children of color access to the
regular classroom and curriculum.
One commenter noted that the LEAs in one State have historically
(1) only over-identified Black children in intellectual disability; (2)
mostly over-identified Hispanic children in speech and language
impairment; and (3) over-identified Black and Native American children
in emotional disturbance and specific learning disabilities. This
commenter and another commenter stated that when specific races are
mostly or always over-identified in specific disability categories,
then the use of different risk ratio thresholds for different
categories of analysis may result in unlawful disparate impact on
racial and ethnic groups.
One commenter suggested that the use of different thresholds for
different disability categories might allow States to conceal
disproportionality in disability categories that are commonly known to
be significantly disproportionate.
Discussion: The Department agrees with commenters that States may
need different risk ratio thresholds in order to reasonably identify
significant disproportionality for categories with different degrees of
incidence rates, and, therefore, different degrees of disparity. The
Department sees no specific legal obstacle to setting different
thresholds for different categories of analysis, though we recognize
that it is possible that any race-neutral threshold, just like any
race-neutral policy, could have a disparate impact. In addition, as we
state later in this section, setting different risk ratio thresholds
for different racial or ethnic groups within the same category of
analysis is unlikely to withstand constitutional scrutiny.
Further, under Sec. 300.647(b)(1), the Department intends for
States to have the flexibility to set reasonable risk ratio thresholds
for each impairment and for various placements and disciplinary
removals. With this provision, States have the flexibility to set up to
15 different risk ratio thresholds. While the Department understands
commenters' concerns that States could set race-neutral risk ratio
thresholds that may have a disparate impact on a particular race or
ethnicity based on historical numbers, in the Department's view, a
requirement to apply uniform race-neutral risk ratio thresholds across
all impairments would be unlikely to address this concern. We believe
that States will have greater flexibility to establish reasonable risk
ratio thresholds that do not have a disparate impact based on race or
ethnicity if allowed to set different thresholds for different
disability categories. As it works with States as they determine their
risk ratio thresholds, the Department will decide whether additional
guidance in analyzing potential disparate impact in setting reasonable
risk ratio thresholds is necessary. For general guidance about the
application of the legal theory of disparate impact in other contexts,
please see the joint Department of Education and Department of Justice
Dear Colleague Letter on the Nondiscriminatory Administration of School
Discipline at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf and the Department of Education Dear
Colleague Letter on Resource Comparability at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-resourcecomp-201410.pdf.
While we acknowledge that allowing States to set multiple risk
ratio thresholds may mean some increase in the complexity of the
standard approach, we do not believe that permitting multiple risk
ratio thresholds substantively impedes the goals of improved
transparency or comparability in State implementation of the standard
methodology. For any one category of analysis--emotional disturbance,
for example--it will still be possible to compare the reasonable risk
ratio thresholds each State uses to identify significant
disproportionality. Meanwhile, we believe that allowing
[[Page 92422]]
States this flexibility actually increases the likelihood that they may
take action to address racial and ethnic disparities in each of the
categories of analysis, rather than limit their efforts to only those
categories with the greatest disparities.
The involvement and impact of State Advisory Panels in the State's
setting of risk ratio thresholds is discussed elsewhere in this
analysis of comments.
Changes: None.
Comment: Directed Question #9 also inquired whether there are any
circumstances under which the use of different risk ratio thresholds
for different racial and ethnic groups (within the same category of
analysis) could be appropriate and meet constitutional scrutiny. A
number of commenters opposed the use of different risk ratio thresholds
for different racial or ethnic groups of children. One commenter stated
that different thresholds for different racial or ethnic groups would
not be useful or fair. Two commenters believed that allowing different
thresholds for different racial or ethnic groups would make
transparency difficult and make data analysis much more complex.
Another commenter noted that, with different risk ratio thresholds, one
could not make comparisons across racial or ethnic groups. One
commenter noted that these thresholds would not likely meet
constitutional scrutiny.
Discussion: The Department agrees with the concerns raised by the
commenters. We believe that the use of different risk ratio thresholds,
by race or ethnicity within the same category of analysis, would be
unlikely to meet constitutional scrutiny because it is difficult to
articulate a compelling justification for analyzing certain groups
differently based on their race or ethnicity. For this reason, the
Department will not change Sec. 300.647(b)(2), which clarifies that
the risk ratio thresholds developed for each category of analysis
(under Sec. 300.647(b)(1)) must be the same for each racial and ethnic
group.
Changes: None.
Commenters: Several commenters suggested that the Department
establish a cap above which States may not establish a risk ratio
threshold, or otherwise limit States to a range of risk ratio
thresholds.
A few commenters suggested 3.0 as a cap. One of the commenters
noted that, in the years between 2006 and 2009, six States increased
their risk ratio thresholds and asked that the Department establish an
absolute maximum risk ratio threshold of 3.0 (based, according to the
commenter, on two median absolute deviations above the national median
of all LEA risk ratios). Another commenter suggested a risk ratio
threshold cap of 2.0. Still another commenter noted that using risk
ratio thresholds over 2.0 may well mask significant disproportionality
in identification, especially for impairments where children of color
with disabilities have historically been over-identified, such as
intellectual disability and emotional disturbance.
Several commenters suggested that the Department recommend a range
within which States may choose to set their risk ratio threshold. These
commenters recommended a range between 1.5 and 3.0, with some
flexibility to allow States to use higher thresholds. The commenters
suggested that, so long as the State has identified some LEAs in the
prior two years and is able to provide evidence that it will identify
some LEAs using a threshold that is higher than the recommended range,
the State be allowed to set risk ratio thresholds that exceed the
established range. Two commenters believed that no State with a risk
ratio exceeding a level of two times discrepant or above the national
average should be allowed to identify zero LEAs as having significant
disproportionality.
Discussion: The Department considered and rejected the possibility
of establishing an absolute cap on the States' choice of risk ratio
thresholds and limiting States' choice to a range of thresholds. At
this time, the Department has not identified a sufficient, broadly
applicable justification on which to establish these limitations at any
specific threshold. In lieu of a mandate that all States use the same
risk ratio thresholds, or set thresholds within limits established by
the Department, Sec. 300.647(b)(1) requires States to develop risk
ratio thresholds that are reasonable and to consider the advice of
stakeholders in establishing these thresholds. Moving forward, we will
review State policies and practices to determine whether there emerges
a standard practice or set of practices that may provide sufficient
rationale for those limitations.
As mentioned earlier in this section, we have added a requirement
that States submit to the Department the risk ratio thresholds they set
and the rationales for setting them. Though the principal purpose of
the requirement is to enable the Department's uniform monitoring of
risk ratio thresholds, submitting risk ratio thresholds and their
underlying rationales will inform the Department's review of the
question of the need for a nationwide risk ratio threshold.
Changes: As mentioned above, the Department has added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all risk ratio
thresholds, the standard for measuring progress under Sec.
300.647(b)(1)(i)(A)-(D) and the rationale for each.
Comment: A number of commenters requested additional clarification
regarding how the Department will determine whether States' risk ratio
thresholds are reasonable. Of these, some commenters' requests were
general in nature. One commenter noted that, theoretically, the
provision could allow States to continue to set unreasonably high
standards that will continue to result in the identification of few or
no LEAs. Another commenter suggested that the Department presume risk
ratio thresholds for certain categories of analysis to be
unreasonable--if there has been consistent overrepresentation in a
category--and require States to provide a reasonable justification. A
few commenters noted that, if States are given too much flexibility to
set their risk ratio thresholds, then the requirement that they collect
and analyze data to identify significant disproportionality becomes
less meaningful or results in little meaningful information. Another
commenter expressed concern that a standard of reasonableness, without
further qualification in the regulations, might be result in a
different determination of reasonableness from State to State, and from
year to year.
Other commenters recommended that the Department use specific
definitions of reasonableness. One commenter expressed concern that the
Department's proposal offers no national standard, criteria,
benchmarks, or goals and targets on which to gauge State compliance
with the proposed regulations and requested that the Department
withdraw the regulations until it can clearly specify its standard of
``reasonableness.'' One commenter requested that the Department notify
all States of any Federal enforcement action taken to ensure the
reasonableness of a State's risk ratio threshold.
Other commenters recommended that the Department make clear that
States that did not identify a single LEA in any area in the past, or
that identified very few LEAs because of an unreasonably high
threshold, will be unlikely to have their threshold deemed
``reasonable'' if it exceeds a set range, or remains unchanged (even if
falling within a range recommended by the Department).
[[Page 92423]]
Some commenters suggested that the Department include factors
unique to each State when considering the reasonableness a risk ratio
threshold. One commenter suggested that the Department consider both
the racial and ethnic composition of States and LEAs and the presence
of factors correlated with disability when evaluating risk ratio
thresholds. Other commenters suggested that the Department provide
States the flexibility to establish risk ratio thresholds that reflect
the composition of States' and LEAs' unique demography.
One commenter suggested that, so long as the State's proposed risk
ratio threshold represents a decision that is unbiased, data-driven,
and responsive to the particular needs of the State, it should be
deemed reasonable when analyzed by the Department.
Discussion: We appreciate all of the comments regarding the
Department's review of a State's risk ratio thresholds. It is our
intention to clarify in forthcoming guidance the specific processes the
Department will use to review for reasonableness a State's risk ratio
thresholds, including information on how, and under what circumstances,
the Department will undertake this review. In the interim, however,
States may choose to consider the four conditions that the Department
included in the NPRM in their development of risk ratio thresholds.
First, if the selected threshold leads to a reduction in
disparities on the basis of race or ethnicity in the State or if it
results in identification of LEAs in greatest need of intervention,
then the Department may be more likely to determine that a State has
selected a reasonable threshold. Second, the Department may be more
likely to determine that a State has selected an unreasonable risk
ratio threshold if the State avoids identifying any LEAs (or
significantly limits the identification of LEAs) with significant
disproportionality in order to, for example, preserve State or LEA
capacity that would otherwise be used for a review of policies,
practices, and procedures and reserving IDEA Part B funds for
comprehensive CEIS, or to protect LEAs from needing to implement
comprehensive CEIS. Third, the Department noted that establishing a
risk ratio threshold solely on an objective calculation does not
guarantee that the Department would consider the resulting threshold to
be reasonable when examined in light of racial and ethnic disparities
taking place at the LEA level. As States have access to population
data, there is no need to use statistical methods to make inferences
about the population data using sample data. Fourth, a State's
selection of a risk ratio threshold that results in no determination of
significant disproportionality may nonetheless be reasonable,
particularly if that State has little or no overrepresentation on the
basis of race or ethnicity.
Given this, Sec. 300.647(b)(1)(ii), and Sec. 300.647(b)(7), under
which any State's selection of risk ratio threshold is submitted to the
Department and subject to its monitoring and enforcement for
reasonableness, we disagree with those commenters concerned that
allowing States to set their own reasonable risk ratio thresholds will
allow them to set inappropriately high thresholds or that this
flexibility will undermine the value of the required data collection
and analysis. While States have the flexibility to set reasonable risk
ratio thresholds and will not be required to seek Departmental approval
of risk ratio thresholds prior to the implementation of the standard
methodology, the Department intends to review risk ratio thresholds,
and, in cases where a risk ratio threshold may not appear reasonable on
its face, request that a State justify how the risk ratio threshold is
reasonable. If, upon review of a State's explanation, the Department
determines that the threshold is not reasonable, the Department may
notify the State that it is not in compliance with the requirement in
these regulations to set a reasonable risk ratio threshold. The
Department may then take appropriate enforcement action authorized by
law, ranging from requiring a corrective action plan, to imposing
special conditions, to designating the State as high-risk status, to
withholding a portion of the State's IDEA Part B funds. While we
currently do not intend to issue a separate notification to all States
in each instance in which the Department takes enforcement action with
respect to any one State, we note that many of the aforementioned
examples of possible enforcement actions result in publicly available
information.
Like the commenters, we believe it possible that States currently
not identifying LEAs with significant disproportionality are using risk
ratio thresholds that are not reasonable (for those States that are
using the risk ratio as part of their current methodology for
determining significant disproportionality). However, while we
currently believe it would be unlikely for any State to have no
significant disproportionality in any category of analysis, for
purposes of these regulations, we do not find it appropriate to
automatically consider a State's selection of risk ratio threshold
unreasonable solely because no LEAs are identified. Theoretically, if
risk ratio thresholds were always unreasonable simply because no LEAs
were identified, it would be impossible for a State to resolve its
significant disproportionality. In this circumstance, significant
disproportionality would become an ever-moving target, where States
would be forced to reduce thresholds again and again, potentially to a
degree where disproportionality could no longer be considered
significant. That is, the Department does not believe that any and all
levels of disparity are significant.
The Department also agrees with commenters that a State's unique
characteristics can be helpful for the State and its stakeholders to
consider when developing risk ratio thresholds. We believe it is
reasonable, for example, for States to consider the racial and ethnic
composition of the State and LEAs, unique enrollment demographics, as
well as factors correlated with disability, when developing their risk
ratio thresholds. These considerations should not, however, serve as
bases for setting risk ratio thresholds that could allow LEAs with
significant disproportionality not to be identified. In the end, the
Department will assess the reasonableness of a given threshold by
examining its capability to identify and address disproportionality
that is significant and by taking into consideration all facts that
bear upon the choice of a risk ratio threshold. The Department will, in
short, determine reasonableness in the totality of the circumstances.
Finally, the Department agrees with commenters that unbiased, data-
driven decision-making, tailored to the needs of a State, would more
likely lead to the creation of a reasonable risk ratio threshold.
However, we remind these commenters that, in setting risk ratio
thresholds, States should do so with the intent of helping LEAs to
identify, investigate, and address significant disproportionality.
Changes: None.
Comment: Several commenters requested the Department create a safe
harbor for risk ratio thresholds that States could voluntarily adopt
with the knowledge that it is reasonable under these regulations. Of
these, one commenter suggested that the safe harbor be set in advance
of the effective date of the regulations in order to ensure that the
thresholds set by States do not result in an unlawful disparate impact
on racial and ethnic groups and to minimize costs to States to correct
risk ratio thresholds found to be
[[Page 92424]]
unreasonable. Another commenter recommended that the Department
consider risk ratio thresholds within a range of 2.5 to 3.5 as a safe
harbor. One commenter urged the Department to monitor whether States
using thresholds higher than 2.0 are indeed capturing instances of
significant disproportionality where they occur. Another commenter
recommended that the final regulations include additional clarity
regarding the criteria the Department will use to determine if a
State's established threshold is reasonable, especially if risk ratio
threshold is greater than those published in the Racial and Ethnic
Disparities in Special Education: A Multi-Year Disproportionality
Analysis by State, Analysis Category, and Race and Ethnicity.
Discussion: We appreciate the comments, in response to Directed
Question #5, about a possible ``safe harbor'' that would allow States
to set risk ratio thresholds that they know would be considered
reasonable by the Department. The Department does not believe, however,
that it is in a position to mandate a particular risk ratio threshold.
We have yet to justify the establishment of specific requirements
regarding thresholds, including ranges, ``safe harbors,'' or other
limitations. Moving forward, however, we intend to review State
policies and practices to determine whether there emerges a standard
practice or set of practices that may provide sufficient rationale for
a particular threshold, a range of thresholds, or a cutoff under which
the Department would consider a threshold reasonable.
We note that the Department's published set of example risk ratio
thresholds--in Racial and Ethnic Disparities in Special Education: A
Multi-Year Disproportionality Analysis by State, Analysis Category, and
Race/Ethnicity--were intended to provide the public with an
illustration of racial and ethnic disparities in special education, and
provide examples of what reasonable risk ratio threshold might look
like. It was not the intent of the Department, in publishing those
examples, to offer these thresholds to States as a ``safe harbor,'' to
suggest that higher thresholds could not be reasonable, or to otherwise
restrict States' to those example thresholds. Further, we note the risk
ratio thresholds were calculated with consideration for the standard
methodology as proposed in the NPRM. Now that the Department has
amended portions of the standard methodology--including the provisions
regarding population requirements--the risk ratio thresholds published
in the report no longer function as appropriate examples.
Changes: None.
Comments: One commenter suggested that the median absolute
deviation (MAD) may be inappropriate as a method to compute risk ratio
thresholds. The commenter requested that the Department explain and
justify, prior to the issuance of the final regulations, the use of
risk ratio thresholds that exceed two MADs above the national median to
determine significant disproportionality. The commenter also requested
more detailed guidance to assist States in running this calculation on
their own.
Discussion: The Department did not intend to mandate that States
use median absolute deviations as a method to compute risk ratio
thresholds; rather, the approach was intended to illustrate one way to
develop risk ratio thresholds that might be considered reasonable given
national IDEA section 618 data. While acknowledging that the NPRM could
have provided greater clarity on this point, it was not the
Department's prime objective to suggest that States use median absolute
deviations on their own to calculate risk ratio thresholds. This is
especially true given that States, in examining only their own data,
would have fewer LEAs, and, therefore, fewer risk ratio calculations
from which to calculate the MADs, which could lead to significantly
higher, and potentially unreasonable, risk ratio thresholds.
The Department intends to provide guidance to States regarding how
to work with stakeholders, and review data, to set reasonable risk
ratio thresholds.
Changes: None.
Comment: A number of commenters responded to Directed Question #5,
which inquired whether the Department should, at a future date, mandate
national maximum risk ratio thresholds. Some commenters opposed this
possibility outright. One commenter noted that a single national
standard may not be feasible across the wide variety of regional,
State, and local differences.
Commenters strongly supported allowing States to determine, in
conjunction with stakeholders, how their own thresholds will identify
disproportionality that is significant. Other commenters supported
leaving States flexibility to set their own thresholds, so long as the
Department is able to ensure that those thresholds are reasonable. Some
commenters noted that, given the statutory and fiscal consequences
associated with significant disproportionality, States need to be able
to defend their selected risk ratio thresholds to the States'
constituents, which include legislators, State Education Departments,
and LEAs. One commenter noted that each State is unique, and has its
own plans with respect to IDEA and other Federal education programs to
address those needs. The commenter concluded that requiring the same
risk ratio thresholds in every State would fail to recognize each
State's uniqueness. A number of commenters expressed support for
permitting States to retain the discretion to determine the risk ratio
threshold above which disproportionality is significant, so long as
that threshold is reasonable and based on advice from their
stakeholders, including their State Advisory Panels. One commenter
stated that, if there is to be a mandated Federal requirement for
consistent calculation of significant disproportionality across States
using a risk ratio formula, States must be granted flexibility in
applying those calculations and setting thresholds without onerous
Federal involvement.
On the other hand, a few commenters strongly believed that the
Department should move toward mandating that all States use the same
risk ratio threshold. One commenter generally noted that a clear
picture of national disparities was precluded due to different States
using different thresholds for significant disproportionality.
Discussion: The Department recognizes the potential advantages and
disadvantages of setting national risk ratio thresholds, and we thank
the commenters for their thoughtful input on this important issue. At
this time, the Department does not believe it has identified a
sufficient justification for mandating any particular national risk
ratio thresholds. However, moving forward, we will review State
policies and practices to determine whether there emerges standard
industry practice that may provide sufficient rationale at a later date
for such a requirement.
Changes: None.
Minimum Cell Sizes and Minimum N-Sizes (Sec. 300.647(a)(3) and (4);
Sec. 300.647(b)(1)(i)(B) and (C); Sec. 300.647(b)(3) and (4); Sec.
300.647(c)(1))
Comments: This ``comment/response/changes'' section is not intended
to respond to specific comments, but rather to provide a general
introduction to minimum cell and n-sizes, and lay the foundation for
responding to specific comments in the following sections.
[[Page 92425]]
Discussion: Risk ratios may produce unreliable results when the
calculation is done with small numbers of children in a particular
category of analysis, and this could result in LEAs being
inappropriately identified with significant disproportionality. The
most common method States use to address this problem is to identify a
minimum number of children who must be enrolled in an LEA within a
specific racial or ethnic group or experiencing a particular outcome in
order for the LEA to be analyzed for significant disproportionality.
That is, risk ratios are not calculated for a specific racial or ethnic
group within a specific category of analysis if LEAs do not have or
enroll a minimum number of children from that racial or ethnic group
within that category of analysis or a minimum number of children not in
that racial or ethnic group experiencing that particular outcome.
In this regulation, we refer to these minimum population
requirements as minimum cell sizes and minimum n-sizes. (As noted
elsewhere in this document, the term ``minimum n-size'' in this
document aligns with the use of the term ``minimum cell size'' in the
NPRM and the term ``minimum cell size'' herein refers to the number of
children in a particular racial or ethnic group or groups experiencing
a particular outcome.) As the minimum cell size and minimum n-size
increase, the relative stability of the calculated risk ratios tends to
increase. However, as these minimum population requirements increase,
the number of districts that are excluded from the analysis in one or
more specific categories of analysis also increases. The Department
believes that States can balance the risks of inappropriately
identifying districts because of small minimum cell sizes or n-sizes
against the risk of inappropriately excluding large numbers of
districts from analysis because of particularly large minimum cell
sizes or n-sizes.
In the NPRM, we proposed that States would be required to use a
minimum n-size (the number of children in a particular racial or ethnic
group enrolled in an LEA) of not more than 10 to determine significant
disproportionality. We received numerous comments about the importance
of allowing States to establish an additional minimum cell size
requirement (a minimum number of children within a race or ethnicity
experiencing a particular outcome in an LEA). Those comments are set
out and discussed in greater detail elsewhere in this section. Upon
reflection, we agree with the commenters, and thus in the final
regulations, we will require States to set minimum n-sizes and cell
sizes.
Additionally, as discussed elsewhere in this section, the proposed
requirement of minimum n-size of 10 was questioned by a number of
commenters. Following publication of the NPRM, we became aware of
significant vulnerabilities in applying the analysis utilized in the
primary article on which we relied to support the n-size requirements
in the NPRM to the standard methodology. Therefore, in these final
regulations, we do not include an n-size of 10 or less, but rather
specify that the n- and cell sizes States set must be reasonable. We
also establish in Sec. 300.647(b)(1)(iv)(A) and (B), a rebuttable
presumption that a minimum cell size of no greater than 10 and n-size
of no greater than 30 are reasonable. A rebuttable presumption, in this
context, means that, in reviewing minimum cell sizes and n-sizes
established by States for reasonableness, and absent additional
information to the contrary, the Department would consider a State's
use of 10 or less for cell size and 30 or less for n-size to be
reasonable.
A Department review of data submitted through the IDEA State
Supplemental Survey for school year 2013-14 found that States that used
risk ratios in their determinations of significant disproportionality
tended to set their cell size or n-size requirements at 30 or less.
Based on these data, the Department determined that cell sizes of 10
and n-sizes of 30 would allow the majority of States currently using
risk ratios to retain their already established population
requirements. We note that, to the extent States publicly report their
calculations or share data with stakeholders, the cell size of 10 is a
recognized standard in data suppression to protect privacy. We also
note that reasonable n-sizes and cell sizes could be less than 10 and
30 if smaller numbers are needed to maximize the number of LEAs
examined for significant disproportionality. This is particularly
relevant in categories of analysis where LEAs have small numbers, such
as discipline. States, in making these determinations in consultation
with their stakeholders, including State Advisory Panels, must
carefully balance inclusion of LEAs and volatility.
Changes: Changes made in response to this issue are discussed in
more depth throughout this section.
Comment: One commenter stated that, in the description of States'
current population requirements in the NPRM, it was not clear whether
the requirements described by the Department were minimum n-sizes or
minimum cell sizes. The commenter further asserted that, in discussions
with States, it appeared that many States are using a minimum cell
size, and not a minimum n-size, as was proposed in the NPRM. One
commenter expressed confusion as to whether the Department intended to
allow States to set a minimum cell size of up to 10 children, or a
minimum n-size of up to 10 children, or both.
Discussion: The Department intended with proposed Sec.
300.647(b)(3) and (4) to limit States' selection of minimum n-size to a
figure no larger than 10. The NPRM included no provisions allowing
States to set a minimum cell size. However, as we note earlier in this
section, we agree with the commenters that States should be allowed to
use a minimum cell size, in addition to a minimum n-size, in order to
prevent inappropriate determinations of significant disproportionality.
To ensure that these provisions are clear, we have also included in
the notice a definition of minimum n-size and a definition of minimum
cell size.
Changes: We have revised Sec. 300.647(a) to include a definition
of minimum n-size and a definition of minimum cell size.
Comment: A few commenters agreed that, in combination with proposed
Sec. 300.647(c)(1) allowing States to determine significant
disproportionality by looking across three consecutive years of data,
it is appropriate to have a minimum n-size in the calculation of
significant disproportionality under proposed Sec. 300.647(b). These
commenters stated that this will mean that the greatest number of LEAs
will be able to examine their practices and to use funds to remediate
the concerns they find.
Discussion: With Sec. 300.647, it is the Department's goal to
support State efforts to appropriately identify LEAs with significant
disproportionality. We agree with the commenters' suggestion that, when
LEAs are appropriately identified, they will benefit from the review
(and, if necessary, revision) of policies, practices, and procedures,
and from comprehensive CEIS. We also agree with the commenters that a
reasonable minimum n-size, as well as the flexibility to use up to
three consecutive years of data, will help States to both reduce and
account for risk ratio volatility before making a determination of
significant disproportionality. In this way, States can focus their
efforts on LEAs with consistently high risk ratios, which may indicate
systemic racial and ethnic disparities in need of intervention.
[[Page 92426]]
Changes: None.
Comment: A large number of commenters expressed their general
support for efforts to standardize minimum n-sizes. Several commenters
expressed support for retaining proposed Sec. 300.647(b)(3) and (4),
with a minimum n-size of 10, and expressed concerns about using a
higher figure that would exclude racial and ethnic groups from a review
for significant disproportionality. One commenter noted that States'
selection of high minimum n-sizes for each racial and ethnic group,
such as 25 or higher, has likely been one method of reducing the
identification of significant disproportionality. The commenter
expressed concerns that large n-sizes would weight monitoring towards
large urban LEAs and inappropriately exclude smaller LEAs.
Discussion: The Department agrees with commenters that, as minimum
n-sizes increase, fewer LEAs and fewer subgroups within LEAs are
examined for significant disproportionality using the standard
methodology. N-sizes that are too high increase the likelihood that
States may fail to analyze and identify LEAs with highly
disproportionate rates of identification, placement in particular
settings, or discipline among racial and ethnic groups as having
significant disproportionality. In such instances, States and LEAs may
miss important opportunities to review and, if necessary, revise
policies, practices, and procedures to ensure that all children are
provided with the supports that they need to be successful.
The Department initially proposed in Sec. 300.647(b)(3) and (4) to
limit States' selection of minimum n-size (referred to as cell size in
the NPRM) to a figure no larger than 10, based on an understanding that
this figure represented an appropriate balance between two competing
interests: the need to examine as many LEAs (and as many racial and
ethnic groups within LEAs) as possible for significant
disproportionality and the need to prevent inappropriate identification
of LEAs due to risk ratio volatility. Smaller minimum n-sizes will
include a larger number of LEAs in a State's annual analysis for
significant disproportionality. However, smaller minimum n-sizes
increase the volatility of the risk ratio, i.e. small changes in data
from year to year could cause large changes in the risk ratio that do
not reflect any other underlying change.
Our use of the proposed requirement for the minimum n-size of 10
was questioned by a number of commenters. Following publication of the
NPRM, we became aware of significant vulnerabilities in the application
of the analysis behind the primary article on which we relied to
support that proposal. Therefore, in these final regulations, we will
not include the proposed minimum n-size requirement of 10, but rather
specify that States must set, with input from stakeholders, a
reasonable minimum n-size and cell size.
That said, Sec. 300.647(b)(1)(iv)(A) and (B) establish a
rebuttable presumption that a minimum cell size of no greater than 10
and a minimum n-size of no greater than 30 are reasonable. The
Department's review of data submitted through the IDEA State
Supplemental Survey for school year 2013-14 found that States that used
risk ratios in their determinations of significant disproportionality
tended to set their cell size or n-size requirements at 30 or less.
Based on these data, the Department determined that cell sizes of up to
10 and n-sizes of up to 30 would allow the majority of States currently
using risk ratios to retain their already established population
requirements.
We also note that to the extent States publicly report their
calculations or share data with stakeholders, the cell size of 10 is a
recognized standard in data privacy. We note as well that, in adopting
the rebuttable presumption, the Department is, in part, responding to
the requests of commenters for flexibility in the standard methodology.
We think this addition provides significant flexibility to States in
implementing the standard methodology.
Further, as stated in Sec. 300.647(b)(1)(iv), the Department will
review the States' selections of risk ratio thresholds for
reasonableness. To ensure that the Department may accurately and
uniformly monitor all cell and n-sizes for reasonableness, and to
inform our policy position, we have added a requirement in Sec.
300.647(b)(7) that each State report to the Department all of its cell
and n-sizes and the rationale for each. The Department has not yet
determined the precise time and manner of these submissions, but it
will do so through an information collection request. States are not
obligated to comply with this reporting requirement until the Office of
Management and Budget approves the Department's information collection
request.
If the Department identifies a State that may have unreasonable
minimum cell or n-sizes, it would notify the State and may request
clarification regarding how the State believes the minimum cell or n-
sizes the State is using are reasonable. If a State provides an
insufficient response, the Department would notify the State that it is
not in compliance with Sec. 300.647(b)(1)(i)(B) or (C), and the
Department may take any enforcement action that is appropriate and
authorized by law. Enforcement actions range from requiring a
corrective action plan, imposing special conditions on the State's IDEA
Part B grant, designating the State as a high-risk grantee, or
withholding a portion of the State's IDEA Part B funds.
Generally, while there are a number of factors that may influence
whether certain minimum cell or n-sizes are reasonable for a State, the
optimal choice will be a balance between the need to examine as many
LEAs (and as many racial and ethnic groups within LEAs) as possible for
significant disproportionality and the need to prevent inappropriate
identification of LEAs due to risk ratio volatility. For example, the
Department is more likely to consider minimum cell and n-sizes to be
reasonable if, in comparison to lower minimum cell and n-sizes, it
substantially reduces the volatility of risk ratio calculations. By
contrast, the Department is more likely to determine that a State has
selected unreasonable minimum cell or n-sizes if it results in the
widespread exclusion of a racial or ethnic group from review for
significant disproportionality in any of the categories of analysis.
The Department may also consider smaller minimum cell or n-sizes to be
reasonable for categories of analysis with lower incidence, such as
some placement and discipline categories, to increase the number of
LEAs analyzed despite the possibility of additional volatility.
Further, the Department is more likely to determine that a State has
selected unreasonable minimum cell or n-sizes if they result in the
widespread exclusion of LEAs from any review for significant
disproportionality. As such, the Department has added in Sec.
300.647(b)(7) a requirement that the rationales submitted for the
minimum cell- and n-sizes not presumptively reasonable must include a
detailed explanation of why these numbers are reasonable and how they
ensure that the State is appropriately analyzing LEAs for significant
disproportionality.
Changes: We have revised proposed Sec. 300.647(b)(3) and (4) to no
longer limit States to a minimum n-size of up to 10. Section
300.647(b)(1)(i) now requires States to select reasonable minimum cell
and n-sizes, with advice from stakeholders, including the State
Advisory Panel, subject to the Department's enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a minimum cell size of no
greater than 10 and a minimum n-size of no greater than
[[Page 92427]]
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for n- and cell sizes that are not presumptively
reasonable must include a detailed explanation of why the cell- and n-
sizes chosen are reasonable and how they help ensure an appropriate
analysis for significant disproportionality.
Comments: Many commenters stated that Federal investigators (which
the Department interpreted to refer to the GAO) did not recommend that
the Department set minimum n-sizes.
Discussion: We agree that the GAO did not specifically recommend
that the Department establish a minimum n-size. However, the GAO did
recommend that the Department establish a standard method for
determining significant disproportionality, and nothing in the GAO
report precludes a minimum n-size as part of the standard methodology.
Indeed, to the extent that establishing a minimum n-size is consistent
with establishing a standard methodology, it is in keeping with the
GAO's primary recommendation.
Changes: None.
Comments: A large number of commenters expressed their strong
opposition to any attempt by the Department to place limits on States'
minimum n-sizes. Many commenters noted that there is no Federal n-size
in the latest authorization of the ESEA or other Federal education
laws.
Discussion: When possible, the Department prefers to provide States
and LEAs with comparable policy provisions across programs, so long as
those provisions meet the individual needs of both programs. However,
nothing in the ESEA or IDEA precludes the Department from establishing
requirements and provisions regarding the minimum n-size used for the
analysis for significant disproportionality under IDEA section 618(d)
that are different from the provisions affecting school accountability
under ESEA.
Further, we believe that some limitation on States' selection of
minimum cell and n-sizes is appropriate. As we note earlier in this
section, as minimum cell and n-sizes increase, fewer LEAs and fewer
racial and ethnic subgroups within LEAs are examined for significant
disproportionality using the standard methodology. As a result, it
becomes increasingly likely that States may fail to identify LEAs with
highly disproportionate rates of identification, placement in
particular settings, or discipline among racial and ethnic groups as
having significant disproportionality. For this reason, we believe it
appropriate to limit States' choice of minimum cell and n-sizes to
those that meet a standard of reasonableness that will be monitored and
enforced by the Department.
Changes: As discussed previously, we have revised proposed Sec.
300.647(b)(3) and (4) to no longer limit States to a minimum n-size of
up to 10. Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for n- and cell sizes that are not presumptively
reasonable must include a detailed explanation of why the cell- and n-
sizes chosen are reasonable and how they help ensure an appropriate
analysis for significant disproportionality.
Comments: One commenter stated that Congress, in recent Federal
education legislation, considered and rejected a federally imposed
minimum n-size, clearly showing its preference that those decisions be
left to States. Another commenter suggested that, in mandating that
States use a Federal calculation, the regulation takes the opposite
approach of the Every Student Succeeds Act, recent legislation that,
according to the commenter, focuses on returning decision-making to
States and LEAs, and that the matter is best left to Congress when it
reauthorizes IDEA.
Discussion: The Department appreciates these and other
recommendations to provide States additional flexibility to set n-
sizes. After considering comments, the Department revised the final
regulations to provide States a great deal of flexibility to set
reasonable minimum n-sizes and cell sizes while balancing the need to
place reasonable limits on this flexibility to ensure that as many LEAs
are analyzed for significant disproportionality as is appropriate using
the standard methodology. The Department has an interest in monitoring
the conditions under which any LEA is so exempted from IDEA section
618(d). As we discuss in A Standard Methodology for Determining
Significant Disproportionality (Sec. 300.647)--General, as the risk
ratio method of measuring significant disproportionality is susceptible
to volatility, the Department aims to prevent ``false positive''
identification of significant disproportionality. Accordingly, States
may exclude from their review any racial and ethnic groups within LEAs
that do not meet State-set, reasonable population requirements,
consistent with Sec. 300.647(b)(1). Unreasonably high minimum cell or
n-sizes may inappropriately exclude LEAs, or racial and ethnic groups
within LEAs, from a State's review of significant disproportionality,
increasing the likelihood that States may fail to appropriately
identify LEAs with highly disproportionate rates of identification,
placement, and discipline.
Given these issues, these regulations are an appropriate exercise
of the Department's authority--in this case, to set reasonable
population requirements necessary to ensure compliance with specific
requirements of the statute. 20 U.S.C. 1406(a). Further, they are an
appropriate exercise of the Department's authority--as the agency
charged with administering IDEA (IDEA section 603(a), 20 U.S.C.
1402(a))--to monitor and enforce IDEA's implementing regulations.
When Congress begins the process of reauthorization, the Department
intends to work closely with it on significant disproportionality,
among other issues. In the interim, nothing in the ESEA or IDEA
precludes the Department from establishing provisions regarding the
minimum n-size used for the analysis for significant disproportionality
under IDEA section 618(d), and it is appropriate for the Department to
do so.
Changes: As described earlier, we have revised proposed Sec.
300.647(b)(3) and (4) to no longer limit States to a minimum n-size of
up to 10. Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for minimum n- and cell sizes that are not
[[Page 92428]]
presumptively reasonable must include a detailed explanation of why the
cell- and n-sizes chosen are reasonable and how they help ensure an
appropriate analysis for significant disproportionality.
Comments: A large number of commenters argued that there would be
confusion and less accurate data if LEAs were required to use one
minimum n-size for assessment purposes and disaggregation (which the
Department interpreted to refer to school assessment for purposes of
ESEA accountability) and a different minimum n-size for significant
disproportionality. Other commenters requested that States have the
flexibility to use the same minimum n-sizes used for other Federal
education programs. Another commenter stated that, in one State, the
minimum n-size used for accountability purposes was 25 and that it
might make sense to align the minimum n-size with that requirement.
Discussion: The Department appreciates the commenters' concerns
about setting different population requirements across different
Federal programs. When possible, the Department prefers to provide
States and LEAs with comparable requirements across programs, so long
as those requirements meet the individual needs of both programs.
As we discussed earlier in this section, we have adjusted our
original proposal to allow States to set their own reasonable minimum
n-sizes based on input from stakeholders, including State Advisory
Panels, subject to the Department's monitoring and enforcement for
reasonableness. With this change, States may set minimum cell and n-
sizes comparable to what they use for other Federal programs.
However, to the extent that aligning population requirements
between ESEA and IDEA would result in a minimum cell or n-size that is
unreasonable for purposes of IDEA section 618(d)--that is, it would
result in a failure to identify LEAs with significant
disproportionality who are identifying or disciplining certain racial
and ethnic subgroups, or placing them in restrictive settings, at
highly disproportionate rates--the choice of cell or n-size would not
comply with the requirements of IDEA.
Changes: None.
Comments: A large number of commenters felt that, generally, States
are best positioned to determine minimum n-size.
Discussion: In the NPRM, the Department proposed to limit States'
selection of a minimum n-size to a figure no larger than 10. Again,
however, after further consideration and review of public comment, the
Department has modified the final regulations to provide States greater
flexibility in determining reasonable minimum n- and cell sizes.
At the same time, we continue to believe that the Department has an
interest--pursuant to OSEP's statutory obligation to ensure States'
implementation of IDEA section 618(d)--in ensuring that States do not
unreasonably exclude LEAs, or racial and ethnic groups within LEAs,
from their review. Thus, we will monitor and enforce with regard to n-
and cell-size reasonableness.
To ensure that the Department may accurately and uniformly monitor
all cell and n-sizes, and to inform our policy position, we have added
a requirement in Sec. 300.647(b)(7) that each State report to the
Department all of its cell and n-sizes and the rationale for each. The
Department has not yet determined the precise time and manner of these
submissions, but it will do so through an information collection
request. States are not obligated to comply with this reporting
requirement until the Office of Management and Budget approves the
Department's information collection request.
Generally, while there are a number of factors that may influence
whether certain minimum cell or n-sizes are reasonable for a State, the
optimal choice will be a balance between the need to examine as many
LEAs (and as many racial and ethnic groups within LEAs) as possible for
significant disproportionality and the need to prevent inappropriate
identification of LEAs due to risk ratio volatility. For example, the
Department is more likely to consider minimum cell and n-sizes to be
reasonable if, in comparison to lower minimum cell and n-sizes, they
substantially reduce the volatility of risk ratio calculations. By
contrast, the Department is more likely to determine that a State has
selected unreasonable minimum cell or n-sizes if they result in the
widespread exclusion of a racial or ethnic group from review for
significant disproportionality in any of the categories of analysis.
The Department may also consider smaller minimum cell or n-sizes to be
reasonable for categories of analysis with lower incidence, such as
some placement and discipline categories, to increase the number of
LEAs analyzed despite the possibility of additional volatility.
Further, the Department is more likely to determine that a State has
selected unreasonable minimum cell or n-sizes if they result in the
widespread exclusion of LEAs from any review for significant
disproportionality. As such, the Department has added in Sec.
300.647(b)(7) a requirement that the rationales submitted for the
minimum cell- and n-sizes which are not presumptively reasonable must
include a detailed explanation of why these numbers are reasonable and
how they ensure that the State is appropriately analyzing LEAs for
significant disproportionality.
Changes: Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for n- and cell sizes that are not presumptively
reasonable which must include a detailed explanation of why the cell-
and n-sizes chosen are reasonable and how they help ensure an
appropriate analysis for significant disproportionality.
Comments: Many commenters noted that a minimum n-size of 10 will
result in many LEAs, particularly small LEAS, being identified with
significant disproportionality. One commenter stated that the
Department should do away with regulatory language that would lead to
the identification of almost every LEA, as, when this result occurred
under another Federal education statute, subsequent legislative efforts
reversed much of what the regulations intended to accomplish.
Discussion: As we note earlier in this section, the Department has
amended its original proposal to restrict States to a minimum n-size no
greater than 10, and, instead, will require States to set reasonable
minimum cell and n-sizes. We believe this change to be responsive to
both of the comments raised.
However, we wish to note that, in circumstances where a State has
identified a large number of LEAs, it is not necessarily the case that
these determinations are inappropriate. By requiring States to follow
the standard methodology under Sec. 300.647, it is the Department's
intent to support more appropriate identification of significant
disproportionality based on race and ethnicity in the identification,
placement, and discipline of children with disabilities. If, in
implementing the standard methodology (which will include State-
selected risk ratio thresholds, a State-selected minimum n-
[[Page 92429]]
size, and a State-selected minimum cell size) the State identifies a
large number of LEAs, it may indicate the need for a broad-based State
effort to improve practices and policies to address racial and ethnic
disparities in special education.
In cases where small LEAs are disproportionately, and
inappropriately, identified with significant disproportionality due to
the use of a low minimum cell or n-size, it may be appropriate for a
State to review its data, and consult with stakeholders and State
Advisory Panels, to determine whether adjustments should be made to the
State's implementation of the standard methodology.
Changes: We have amended Sec. 300.647(b)(3) and (4) to no longer
restrict States to a minimum n-size of 10. Section 300.647(b)(1)(i) now
requires States to select reasonable minimum cell and n-sizes, with
advice from stakeholders, including the State Advisory Panel, subject
to the Department's enforcement. Section 300.647(b)(1)(iv)(A) and (B)
state that a minimum cell size of no greater than 10 and a minimum n-
size of no greater than 30, respectively, are presumptively reasonable.
We have added Sec. 300.647(b)(7), which requires States to report to
the Department, at a time and in a manner specified by the Secretary,
all n- and cell sizes developed under Sec. 300.647(b)(1)(i)(B) and (C)
and the rationale for each. The rationales for n-sizes and cell sizes
that are not presumptively reasonable which must include a detailed
explanation of why the cell- and n-sizes chosen are reasonable and how
they help ensure an appropriate analysis for significant
disproportionality.
Comment: One commenter added that, if States used a minimum n-size
of 10, then many States and LEAs would spend a significant amount of
time, money, and labor on addressing issues that may not be able to be
simply changed by utilizing early intervening dollars. Other commenters
have experienced issues with small n-sizes, where LEAs are identified
and must develop solutions for problems that rarely existed. Still more
commenters stated that, with an n-size of 10, it will be virtually
impossible for LEAs identified with significant disproportionality to
correct the disparity. One commenter expressed concerns that flaws in
the proposed regulation--specifically, the potential for LEAs to
implement mandatory comprehensive CEIS due a finding of significant
disproportionality that is the result of small numbers of children--
will make it impossible to identify metrics that could evaluate the
connection between a finding of significant disproportionality in an
LEA and improved outcomes for all children.
Other commenters generally stated that a small LEA might be
identified with significant disproportionality due to a few new
families enrolling in the LEA with a child already diagnosed with
autism.
Discussion: As we note earlier in this section, the Department has
amended its original proposal so that it no longer restricts States to
a minimum n-size no greater than 10. Instead, the Department will
require States to set reasonable minimum cell or n-sizes. We believe
this change to be responsive to the comments raised by reducing the
likelihood that an LEA may be identified with significant
disproportionality due to minor changes in LEA enrollment. We agree
with commenters that States should focus on systemic cases of
significant disproportionality--rather than LEAs with simple numerical
disparities based on the enrollment or changing needs of one or two
children--and that the statutory remedies provided under IDEA section
618(d)(2) (20 U.S.C. 1418(d)(2)) will be most effective in addressing
the needs of LEAs with systemic racial and ethnic disparities.
Changes: As noted above, Sec. 300.647(b)(1)(i) now requires States
to select reasonable minimum cell and n-sizes, with advice from
stakeholders, including the State Advisory Panel, subject to the
Department's enforcement. Sections 300.647(b)(1)(iv)(A) and (B) state
that a minimum cell size of no greater than 10 and a minimum n-size of
no greater than 30, respectively, are presumptively reasonable. We have
added Sec. 300.647(b)(7), which requires States to report to the
Department, at a time and in a manner specified by the Secretary, all
n- and cell sizes developed under Sec. 300.647(b)(1)(i)(B) and (C) and
the rationale for each. Rationales for n- and cell sizes that are not
presumptively reasonable must include a detailed explanation of why the
cell- and n-sizes chosen are reasonable and how they help ensure an
appropriate analysis for significant disproportionality.
Comment: One commenter noted that a minimum n-size of 10 was
empirically validated, and, based on literature, could guarantee risk
ratio reliability.
Two commenters stated that there is a significant increase in
reliability in moving from a minimum n-size of 5 to 10 and a slightly
greater increase when cell size moved up to 15. According to one
commenter, one State chose to use a minimum n-size of 15, rather than
10, in recognition of slightly greater reliability and LEA feedback.
One commenter supported giving States flexibility to select a minimum
n-size between 10 and 15. Another commenter supported a minimum n-size
of 15 only if States made a determination of significant
disproportionality based on a single year of data.
Two commenters stated that using a minimum n-size of 10 can lead to
problems with reliability when using the risk ratio. The commenters
stated that, in the case of an n-size of 10 in the denominator, very
small numbers can lead to unstable estimates of the risk index, leading
to large swings in the risk ratio and a possible finding of significant
disproportionality for very few children identified in the target
group. Commenters opposing a cap of 10 for the minimum n-size offered
other suggestions: A few suggested 20, many suggested 30, and a few
suggested 40. One commenter stated that a minimum n-size of 25 or
higher has likely been one method of reducing the identification of
significant disproportionality.
Discussion: The Department generally agrees with commenters that
risk ratios are not reliable when calculated for a racial or ethnic
group with too few children. As multiple commenters have expressed
their concern that a minimum n-size of 10 may be small, and have
provided a list of consequences that may ensue if minimum n-sizes are
too low to safeguard against volatility (e.g., resistance to
identifying children as children with disabilities or identifying
children of a particular race or ethnicity as having disabilities,
inability of small LEAs to resolve significant disproportionality,
vulnerability of LEAs to small changes in enrollment), we now believe
that it is appropriate to allow States flexibility to set their own
reasonable minimum cell and n-sizes. We also find it appropriate that
the States consult with stakeholders prior to setting minimum cell and
n-sizes, as was done in one State mentioned by a commenter.
In the NPRM, the Department proposed to limit States' selection of
minimum n-size to a figure no larger than 10, based on an understanding
that this figure represented an appropriate balance between risk ratio
reliability and LEA inclusion. Bollmer, J., Bethel, J., Garrison-
Mogren, R., & Brauen, M., 2007. However, upon further examination of
the study, which relied on 2001-2002 data from a non-representative,
non-random sample of three States--we now believe that the study
includes too many limitations to
[[Page 92430]]
provide the basis to mandate a national minimum n-size of 10.
In these final regulations, States must set reasonable cell and n-
sizes, and in Sec. 300.647(b)(1)(iv)(A) and (B), we are establishing a
rebuttable presumption that a minimum cell size of no greater than 10
and n-size of no greater than 30, respectively, are reasonable
thresholds. Again, as we stated earlier in this section, support for
these thresholds includes information we have from the IDEA State
Supplemental Survey, which shows that States tend to set their n-size
or cell size at 30 or less. We also note that to the extent States
publicly report their calculations or share data with stakeholders, the
cell size of 10 is a recognized standard in data privacy. We do not
have comparable or sufficient support for a national n-size of less
than 30.
States have the option, but are not required, to set the same cell
or n-size for each category of analysis. States should consider, in
consultation with their stakeholders, the impact of minimum n- and cell
sizes in conjunction with the risk ratio thresholds they select for
each category of analysis. The Department encourages States to consider
a smaller minimum n-size for categories of analysis where LEAs have
small numbers, such as discipline. States, in making these
determinations in consultation with their stakeholders, including State
Advisory Panels, must carefully balance inclusion of LEAs and
volatility. Further, in certain circumstances such as when coupled with
a larger minimum n-size, it may be reasonable for a State to select a
minimum cell size of zero or one. However, the Department notes that
selecting different n- or cell sizes based on race or ethnicity is
problematic and could raise issues of constitutionality. As we evaluate
additional data and information in the future, we may consider whether
there is additional guidance we can provide to States about what
constitutes a reasonable cell or n-size.
Changes: Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for n- and cell sizes that are not presumptively
reasonable must include a detailed explanation of why the cell- and n-
sizes chosen are reasonable and how they help ensure an appropriate
analysis for significant disproportionality.
Comments: Some commenters noted that a minimum n-size of 10 is
unrealistic and will result in unintended and inappropriate negative
consequences for the LEAs (including charter schools) in one State. One
commenter observed that, in its State, parent choice and charter
schools create unique configurations in enrollment that may give the
appearance of significant disproportionality when a minimum cell size
of 10 is used. A large number of commenters noted that the Department
must allow States to use minimum n-sizes greater than 10 to reduce the
likelihood of ``false positives'' due to small numbers. One commenter
claimed that a minimum n-size of 10 would impact one State's ability to
screen out false positive findings of significant disproportionality of
White children, given that many LEAs in the State are homogenous.
Discussion: As we note earlier in this section, the Department has
amended its original proposal so that it no longer restricts States to
a minimum n-size no greater than 10. Instead, the Department will
require States to set reasonable minimum cell and n-sizes.
Changes: As noted previously, Sec. 300.647(b)(1)(i) now requires
States to select reasonable minimum cell and n-sizes, with advice from
stakeholders, including the State Advisory Panel, subject to the
Department's enforcement. Section 300.647(b)(1)(iv)(A) and (B) state
that a minimum cell size of no greater than 10 and a minimum n-size of
no greater than 30, respectively, are presumptively reasonable. We have
added Sec. 300.647(b)(7), which requires States to report to the
Department, at a time and in a manner specified by the Secretary, all
n- and cell sizes developed under Sec. 300.647(b)(1)(i)(B) and (C) and
the rationale for each. Rationales for n- and cell sizes that are not
presumptively reasonable must include a detailed explanation of why the
cell- and n-sizes chosen are reasonable and how they help ensure an
appropriate analysis for significant disproportionality.
Comment: A few commenters described the experience of one State
that previously used a minimum n-size of 10, with a risk ratio
threshold of 2.0, to review LEAs for significant disproportionality.
The commenters did not provide the number of years taken into
consideration. These commenters stated that the State experienced a
number of unintended consequences.
First, the LEAs in the State perceived the calculations to be an
implicit quota system, where LEAs delayed or refused to evaluate
children for possible identification and parents were led to believe
that the LEA had already exceeded a limit on the number of children in
their racial group that could be identified. Second, LEAs questioned
the ethnicity reported by parents, and more than one LEA provided
photos of individual children and requested that their reported
ethnicity be changed. Third, when the State used a minimum n-size of
10, it had to greatly increase the amount of State staff time devoted
to identifying which calculations produced false positives. Meanwhile,
both LEAs and State-level staff devoted considerable resources to the
creation of corrective action plans and the implementation of
prevention activities that impacted only one or two children. Fourth,
the approach to identifying significant disproportionality often
resulted in calculations that were not statistically significant.
The commenter further stated that, after the State adjusted its
minimum n-size and risk ratio threshold to align with the State's
accountability plan, it had better confidence that those LEAs that were
identified had potential to benefit from the required comprehensive
CEIS and corrective action planning.
One commenter provided a list of factors that, according to the
commenter, unduly influenced an LEA's risk of identification with
significant disproportionality when the State's minimum n-size was 10.
The list includes small, rural LEAs with court-placed children from
urban areas, families who adopt several non-White children with
disabilities, charter schools with a special education focus, LEAs
receiving families of color moving out of urban areas, and single
events resulting in the discipline of multiple children.
Discussion: We appreciate commenters' sharing their experience
implementing IDEA section 618(d). The example provided highlights some
of the methods that comprise the standard methodology as required under
Sec. 300.647, including a minimum n-size and a risk ratio threshold.
We think the commenters experience with a minimum n-size of 10 and
how it potentially contributed to the inappropriate identification of
LEAs with significant disproportionality is instructive. We note that,
along with a minimum n-size of 10, the State also
[[Page 92431]]
used a relatively low risk ratio threshold of 2.0, which could have
exacerbated issues of inappropriate identification of LEAs with
significant disproportionality. The Department believes that it is
important for States to consider both the impact of the reasonable
minimum cell and n-sizes they select in conjunction with their
selection of reasonable risk ratio thresholds. These factors can all
potentially contribute to an inappropriate determination of significant
disproportionality.
As we note earlier in this section, the Department has amended its
original proposal in the NPRM, which should address the concerns raised
by these and other commenters. These final regulations do not restrict
States to a minimum n-size of no greater than 10. Instead, the
Department will require States to set reasonable minimum cell and n-
sizes.
Finally, we disagree with the commenters' suggestion that LEAs
should only be identified with significant disproportionality if they
have racial and ethnic disparities that are statistically significant.
Given that States have access to population data on the identification,
placement, and discipline of children with disabilities, tests of
statistical significance are inappropriate for States' determination of
significant disproportionality given that those analyses are intended
to be used to draw inferences when working with sample data.
Changes: As noted previously, Sec. 300.647(b)(1)(i) now requires
States to select reasonable minimum cell and n-sizes, with advice from
stakeholders, including the State Advisory Panel, subject to the
Department's enforcement. Section 300.647(b)(1)(iv)(A) and (B) state
that a minimum cell size of no greater than 10 and a minimum n-size of
no greater than 30, respectively, are presumptively reasonable. We have
added Sec. 300.647(b)(7), which requires States to report to the
Department, at a time and in a manner specified by the Secretary, all
n- and cell sizes developed under Sec. 300.647(b)(1)(i)(B) and (C) and
the rationale for each. Rationales for n- and cell sizes that are not
presumptively reasonable must include a detailed explanation of why the
cell- and n-sizes chosen are reasonable and how they help ensure an
appropriate analysis for significant disproportionality.
Comment: A number of commenters expressed concerns that the
Department provided insufficient research support for its minimum n-
size in proposed Sec. 300.647(b)(3) and (4). Specifically, many
commenters stated that there is no data available to support 10 as an
appropriate number for a minimum n-size. Other commenters noted that
the Department provided little rationale for selecting 10 for the
minimum n-size, instead of any other number.
Discussion: The Department recognizes commenters' concerns
regarding the appropriateness of the research base to support our
proposal to limit States to a minimum n-size no larger than 10. At the
time of the NPRM, the Department's proposal was based on an
understanding that this figure represented an appropriate balance
between risk ratio reliability and LEA inclusion. However, upon further
examination of the study, which relied on 2001-2002 data from a non-
representative, non-random sample of three States, we now find that the
study includes too many limitations to provide a basis for a minimum n-
size of 10. Bollmer, J., Bethel, J., Garrison-Mogren, R., & Brauen, M.,
2007.
Accordingly, the Department has amended the regulation so that it
does not mandate a national minimum n-size. We will, rather, specify
that States must set, with input from stakeholders, reasonable minimum
n-size and cell sizes. In addition, Sec. 300.647(b)(1)(iv)(A) and (B)
establish a rebuttable presumption that a minimum cell size of 10 and
n-size of 30, respectively, are reasonable thresholds. Again, as we
stated earlier, Department review of data submitted through the IDEA
State Supplemental Survey for school year 2013-14 found that States
that used risk ratios in their determinations of significant
disproportionality tended to set their cell-size or n-size requirements
at 30 or less. Based on these data, the Department determined that
cell-sizes of no greater than 10 and n-sizes of no greater than 30
would allow the majority of States currently using risk ratios to
retain their already established population requirements. We note that
to the extent States publicly report their calculations or share data
with stakeholders, the cell size of 10 is a recognized standard in data
privacy.
Changes: Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable. We have added Sec.
300.647(b)(7), which requires States to report to the Department, at a
time and in a manner specified by the Secretary, all n- and cell sizes
developed under Sec. 300.647(b)(1)(i)(B) and (C) and the rationale for
each. Rationales for n- and cell sizes that are not presumptively
reasonable must include a detailed explanation of why the cell- and n-
sizes chosen are reasonable and how they help ensure an appropriate
analysis for significant disproportionality.
Comment: A large number of commenters provided input as to whether
the Department should allow States to set a minimum cell size--to apply
to the numerator when calculating risk for a racial or ethnic group--as
well as the appropriateness of particular minimum cell sizes. These
commenters strongly cautioned the Department against limiting States
solely to a minimum n-size of 10 when reviewing racial or ethnic groups
within an LEA, as, in the absence of any consideration for the minimum
cell size, these reviews will lead to false positive identifications of
LEAs with significant disproportionality. A large number of commenters
suggested that the Department allow States to adopt a minimum cell
size, particularly when reviewing for significant disproportionality in
the identification of children with disabilities, to decrease the
likelihood of false positive identifications of significant
disproportionality.
A few commenters stated that using only a minimum n-size of 10
allows very small groups of children--and potentially only one
identified child (or one newly enrolled child with a disability)--to
result in the LEA appearing to have significant disproportionality.
Other commenters warned that, based on their previous experience with
small n-sizes, having only one child in a subgroup has previously
caused LEAs to be cited for significant disproportionality. One
commenter provided examples of the number of LEAs, by State, that would
be flagged for significant disproportionality, based on one child, if
the Department's original proposal were implemented.
A few commenters stated that, without the adoption of a minimum
cell size, there is an increased likelihood that a risk ratio of a
certain size will be likely to have occurred by chance. Another
commenter argued that the identification, placement, or discipline of a
single child from a particular racial or ethnic group could occur by
chance.
Discussion: The Department appreciates the commenters' suggestion
to allow States to select a minimum cell size. The standard
methodology, as originally proposed in Sec. 300.647, did not
contemplate minimum population requirements other than minimum
[[Page 92432]]
n-size when examining racial and ethnic groups within LEAs for
significant disproportionality. However, we agree with the commenters
that States should be allowed to use minimum cell sizes, as a component
of the standard methodology in addition to a minimum n-size, in order
to prevent inappropriate determinations of significant
disproportionality, such as a finding of significant disproportionality
based only on one or two children.
States will have the flexibility to set their own reasonable
minimum cell sizes, limited, as is the selection of risk ratio
threshold, by consultation with stakeholders, including the State
Advisory Panels. It should be noted that States have the option to set
a minimum cell size of zero or one if the State and its stakeholders
believe their selection of a reasonable minimum n-size addresses the
issues associated with small populations or low incidence categories of
analysis.
Accordingly, we have amended the regulation to allow States to
select reasonable minimum cell sizes in the standard methodology.
Changes: We have amended proposed Sec. 300.647(b)(1) to require
States to select a reasonable minimum cell size with advice from
stakeholders, including the State Advisory Panel, subject to the
Department's enforcement.
Comment: One commenter noted that most disabilities are rare
events, meaning that only one or two percent of the children will be
identified as having them. As a result, when analyzing LEA-level data,
many LEAs will have no children with a given disability, and for an LEA
in which children are identified, the result may be a large risk ratio.
One commenter stated that LEAs with only 10 children in any given
racial or ethnic group will be automatically disadvantaged for low
incidence disabilities like autism, intellectual disability, and
emotional disturbance, which the commenter cited as having an incidence
rate of one percent or less. The commenter concluded that, even if an
LEA qualifies only one child of a racial or ethnic group in any of the
three categories, it will be found to have significant
disproportionality.
Discussion: We appreciate these commenters for raising their
concerns regarding the low incidence of some impairments. In general,
we agree with the commenters that LEAs with low incidence rates are
likely to have more volatile risk ratios.
We have amended proposed Sec. 300.647(b)(1)(i) to require States
to select reasonable minimum cell sizes. With this change, States' use
of minimum cell sizes will prevent the inappropriate identification of
LEAs with low incidence rates to the extent that those rates coincide
with small populations of children.
Changes: Section 300.647(b)(1)(i)(B) requires States to set
reasonable minimum cells sizes.
Comment: Two commenters warned that LEAs identified with
significant disproportionality due to only one or two children will
continue to be identified due to those children so long as they remain
in school. Another commenter argued that the identification, placement,
or discipline of a single child from a particular racial or ethnic
could occur by chance, and is not sufficient to demonstrate bias or
discrimination within an LEA. A few commenters expressed concern that,
if LEAs are identified with significant disproportionality based on one
or two children, the regulation could discourage LEAs from identifying
children of color with disabilities, or encourage LEAs to stigmatize
the child that is identified. One commenter stated that there may be
FERPA issues inherent in basing a determination of significant
disproportionality on a single child, especially if the child's recent
enrollment pushes the LEA's risk ratio over the State's threshold.
Discussion: We agree with the commenters that a number of negative
outcomes could result if LEAs are at risk of being identified with
significant disproportionality based on the identification, placement,
or discipline of only one or two children. We have amended proposed
Sec. 300.647(b)(1) to require States to select a reasonable minimum
cell size so that, when a racial or ethnic group of interest within an
LEA has too few children experiencing a particular outcome, the State
is not required to calculate the risk ratio for that racial or ethnic
group, for that outcome, for that LEA. We believe this amendment to be
responsive to the concerns the commenters' raised.
Changes: Section 300.647(b)(1)(i)(B) requires States to set a
reasonable minimum cell size.
Comment: To avoid risk ratio volatility, a few commenters noted
that minimums should apply to both the numerator and denominator. These
commenters indicated that allowing States to apply the minimum cell
size to the numerator of the risk calculations for the target racial or
ethnic group would ensure that the risk calculations are based on a
sufficient number of identified children. One commenter noted that,
among the current population requirements employed by the States, one
requirement was a minimum cell size for all impairments.
Discussion: We agree with commenters that allowing the use of a
minimum cell size and a minimum n-size will help prevent risk ratio
volatility. We have amended the regulation to allow States to set both
a reasonable minimum cell size and a reasonable minimum n-size.
Changes: Section 300.647(b)(1)(i) now requires States to select
reasonable minimum cell and n-sizes, with advice from stakeholders,
including the State Advisory Panel, subject to the Department's
enforcement. Section 300.647(b)(1)(iv)(A) and (B) state that a minimum
cell size of no greater than 10 and a minimum n-size of no greater than
30, respectively, are presumptively reasonable.
Comment: One commenter suggested that the Department allow States
the flexibility to choose a minimum cell size between two and four, and
not so high that the State overlooks disproportionality for low-
incidence populations. The commenter noted that, for one western State,
if the minimum cell size is set at 10, only about 10 percent of
significant disproportionality findings would be for non-White children
because of the small size of those populations. A number of commenters
supported a minimum of 10, if applied to both the minimum cell size and
minimum n-size. Two commenters suggested that a minimum cell size of at
least six or greater would remove the possibility of an LEA being
flagged for significant disproportionality based on chance. A few
commenters noted that a minimum cell size and a minimum n-size for the
target racial and ethnic group are necessary to avoid the inappropriate
identification of LEAs and requested a minimum cell size of five to
avoid false positive identification of significant disproportionality.
Several commenters suggested the use of specific minimum cell sizes
when calculating the risk of identification of a particular disability
for a racial or ethnic group. A few commenters encouraged a minimum
cell size of five children with a particular disability. Many more
commenters encouraged minimum cell size of 10 children with a
particular disability. One commenter noted that a minimum cell size of
at least 10 is necessary for reliability and privacy and to avoid
findings of significant disproportionality based on very small numbers
of children. This commenter supported giving States flexibility to
select a minimum cell size between 10 and 15. A few commenters noted
that a minimum cell size of five would result in fewer false positive
identification of significant disproportionality.
[[Page 92433]]
Discussion: The Department appreciates the suggestions to select
various minimum cell sizes in order to limit risk ratio volatility and
the potential for inappropriate finding of significant
disproportionality. In response to these comments, these final
regulations provide States the flexibility to set their own reasonable
minimum cell sizes, limited, as is the selection of risk ratio
threshold, by consultation with stakeholders, including the State
Advisory Panels and subject to the Departments monitoring and review
for reasonableness. Accordingly, as with n-size, to ensure that the
Department may accurately and uniformly monitor all cell sizes, we have
added a requirement that each State report to the Department the cell
sizes it selects and the rationale for selecting each. The Department
has not yet determined the precise time and manner of these
submissions, but it will do so through a subsequent information
collection request. States are not obligated to comply with this
reporting requirement until the Office of Management and Budget
approves the Department's request.
As to reasonableness of cell sizes in general, the Department
assumes that a minimum cell size of up to 10 may be reasonable for most
States. Of commenters that suggested a particular minimum cell size,
all but one requested that the Department allow States to use a minimum
cell size of up to 10. The Department also found that--based on a
review of the SY 2013-2014 State Supplement Survey (SSS)--States that
used risk ratios in their determinations of significant
disproportionality tended to set their cell-size or n-size requirements
at 30 or less. Based on these data, the Department determined that
cell- of 10 and n-sizes of 30 would allow the majority of States
currently using risk ratios to retain their already established
population requirements. We note that to the extent States publicly
report their calculations or share data with stakeholders, the cell
size of 10 is a recognized standard in data privacy.
Further, when reviewing States' minimum cell sizes for
reasonableness, the Department may consider the same criteria used for
minimum n-size, with one addition: the Department is more likely to
consider a minimum cell size reasonable if, in comparison to a lower
minimum cell size, it substantially reduces the potential that an LEA
will be identified with a significant disproportionality based on small
fluctuations in the number of children.
The Department encourages States to consider a smaller minimum n-
size for categories of analysis with particularly low incidence, as
appropriate, in order to include a larger percentage of LEAs in the
review for significant disproportionality. Further, in certain
circumstances such as when coupled with a larger minimum n-size, it may
be reasonable for a State to select a minimum cell size of zero.
The Department will continue to collect data and review research to
help refine the selection of reasonable minimum cell sizes in order to
ensure that States are reviewing as many LEAs for significant
disproportionality as possible while limiting the volatility of risk
ratios if cell sizes that are too low. The obligation to report cell
sizes and their rationales will assist in this effort.
Changes: The Department has added Sec. 300.647(b)(7), which
requires States to report to the Department, at a time and in a manner
specified by the Secretary, all cell sizes selected under Sec.
300.647(b)(1)(i)(B) and the rationale for each. Rationales for n- and
cell sizes that are not presumptively reasonable must include a
detailed explanation of why the cell- and n-sizes chosen are reasonable
and how they help ensure an appropriate analysis for significant
disproportionality.
Comment: One commenter suggested that the Department consider
scaling the minimum n-size to be larger for lower incidence
disabilities.
Discussion: As we note earlier in this section, Sec. 300.647(b)(1)
requires States to select reasonable minimum cell sizes. Nothing in
these final regulations precludes a State from setting higher minimum
cell sizes or n-sizes for particular categories of analysis based, in
part, on the level of incidence of a particular disability and the
potential impact it could have on the volatility of calculated risk
ratios. However, as noted previously, any minimum cell size or n-size
set by the State, in consultation with stakeholders, must be
reasonable. With this change, States' use of minimum cell sizes, along
with States' flexibility to use up to three consecutive years of data
to make a determination of significant disproportionality, should
prevent the inappropriate identification of LEAs due to low incidence
rates in either the racial or ethnic group of interest or the
comparison group.
Changes: None.
Comment: One commenter argued that a minimum cell size would be
particularly important when analyzing LEAs for significant
disproportionality due to suspensions and expulsions. The commenter
stated that LEAs cannot fully control the administration of
disciplinary removals, as State or LEA regulations may require a child
to be moved when weapons or drugs are brought in the school. The
commenter concluded that a minimum cell size would prevent those
incidents from resulting a finding of significant disproportionality
for the LEA.
Discussion: We agree with the commenter that a single incident that
requires a mandatory disciplinary removal generally should not result
in a finding of significant disproportionality by race and ethnicity
and that States should have the flexibility to focus on their efforts
on LEAs with consistently high risk ratios, which may indicate systemic
racial and ethnic disparities in need of intervention. We believe that
the standard methodology is responsive to the commenter, as, under
Sec. 300.647(b)(1), States may establish reasonable minimum cell sizes
and, under Sec. 300.647(d)(1), States may use up to three consecutive
years of data prior to making a determination of significant
disproportionality.
However, we also believe that, in cases where an LEA experiences
multiple incidents requiring a mandatory removal, and, as a result, a
particular racial or ethnic group faces consistently disproportionate
treatment over the course of multiple years, it would be appropriate
for the LEA to be identified with significant disproportionality.
Changes: None.
Comments: Two commenters noted that, when the n-size of a risk
calculation falls below 20 children, at least 6 children are required
in the numerator to achieve sufficient statistical power for results to
be reliable.
Discussion: The Department agrees that the selection of minimum
cell sizes should be made with consideration for minimum n-sizes and
encourages States to take any interactions between the two into account
when setting these two minimums. Further, we would encourage States to
also take into consideration how its particular combination of
reasonable risk ratio threshold, minimum n-sizes, and minimum cell
sizes will help or hinder its efforts to identify significant
disproportionality.
Changes: None.
Comment: A few commenters responded to Directed Question #6 in the
NPRM, which inquired whether the Department's proposed limit on minimum
n-size aligned with State privacy laws.
A few commenters indicated that Department's proposal to allow
States to set a minimum n-size up to 10 was compliant with State
privacy laws. Other commenters noted that a minimum n-size of 10 would
not
[[Page 92434]]
comply with State privacy laws, but that a minimum cell size of 10
would. One of these commenters noted that a minimum cell size of less
than 10 would raise privacy concerns. One commenter stated that a
Federal statistical agency recommended a minimum population requirement
of 10 for confidentiality purposes. (The Department was unable to
determine whether the commenter intended to refer to cell size or n-
size.)
A few commenters spoke more generally about the relationship
between minimum cell sizes, minimum n-sizes, and privacy. One commenter
noted that a minimum cell size requirement would resolve the issue of
publishing data that violates privacy laws. However, a few commenters
stated that, as there did not appear to be any requirement that States
make the data utilized in the risk ratio calculations publicly
available, the issue of privacy was not applicable. One commenter
questioned how, if the Department limits minimum n-sizes to 10 for
significant disproportionality, and States choose higher minimum n-
sizes for other calculations to safeguard privacy, the inconsistency
would be explained to the public.
One commenter recommended that the Department research the
implications of its proposal for existing State privacy laws with the
goal of ensuring the privacy rights of children with disabilities.
Another commenter generally recommended that the Department require
FERPA protections in situations in which there are fewer than 10
children in a group.
Discussion: We appreciate the thoughtful comments that we received
on this issue and recognize that, at particular minimum n-sizes and
minimum cell sizes, States would potentially have to suppress some data
prior to public reporting, as they do in other reporting instances. As
State and Federal privacy laws apply, additional privacy protections in
these regulations are not necessary.
Changes: None.
Comment: A number of commenters requested that States have
flexibility to apply both a minimum n-size and a minimum cell size to
the comparison group. Commenters indicated that allowing States to
apply the minimum cell size to the numerator of the risk calculations
for the comparison group would ensure that the risk calculations are
based on a sufficient number of identified children. One commenter
suggested that the Department allow States to adopt a minimum cell size
that will decrease the likelihood of identifying an LEA as having
significant disproportionality when the results are likely to have
occurred by chance.
Another commenter strongly opposed the use of a minimum cell size
for the comparison group, if the result was that the racial or ethnic
group of interest would not be reviewed for significant
disproportionality. The commenter expressed concern that the starkest
disparities would be overlooked in racially homogenous LEAs.
Discussion: In reviewing the commenters' suggestions and
perspectives, we were not always certain whether the commenters assumed
that a population requirement, when applied to a comparison group,
would (1) determine whether a particular racial or ethnic group in an
LEA would be exempted from a review of significant disproportionality,
or (2) determine whether the alternate risk ratio was necessary to
review that racial or ethnic group.
We believe the challenge associated with an inappropriately low
minimum cell size or minimum n-size for racial and ethnic groups is
similar to those that arise when dealing with comparison groups--
namely, risk ratio volatility. For this reason, it is our intent that,
under Sec. [thinsp]300.647(b)(5), States will use their reasonable
minimum cell sizes and n-sizes to determine whether there is an
adequate number of children in the comparison group to calculate the
risk ratio or if the alternate risk ratio must be used.
In general, the Department does not believe that the absence of a
comparison group--or a small comparison group--within an LEA is a
sufficient basis to exclude a racial or ethnic group from States'
review for significant disproportionality. It is the Department's
intention, rather, that States calculate the alternate risk ratio--
using a State-level comparison group--when the comparison group within
the LEA includes too few children for a reliable analysis or when the
risk to the comparison group within the LEA is zero.
However, we have also added Sec. [thinsp]300.647(c)(2) to clarify
that, when the alternate risk ratio is required, and the comparison
group within the State does not meet the minimum cell size or minimum
n-size, the State is not required to calculate either the risk ratio or
alternate risk for the applicable racial and ethnic group and category.
Changes: We have added Sec. [thinsp]300.647(c)(2) to allow States
to not calculate either the risk ratio or alternate risk ratio for a
given racial or ethnic group if the comparison groups at the LEA level
and State level do not meet the State's minimum n-sizes and minimum
cell sizes.
Comment: A large number of commenters strongly suggested that the
Department not mandate an n-size of 10 be applied to number of children
in the comparison group as this might lead to false positives.
Discussion: As we note earlier in this section, the Department has
amended its original proposal so that it no longer restricts States to
a minimum n-size no greater than 10. Instead, the Department will
require States to set reasonable minimum n-sizes. We believe this
change to be responsive to the comments raised by reducing the
likelihood that an LEA may be identified with significant
disproportionality due to small numbers of children.
Changes: None.
Comment: One commenter stated that a minimum cell size need not
apply to the comparison group, as the commenter recommends that States
use a different approach, including a risk ratio and risk difference to
examine LEAs that are mostly homogenous. The Department interprets the
comment to suggest that, as risk difference should be used to analyze
homogenous LEAs, and can be calculated even when a comparison group has
a cell size of zero, there is no need for a minimum cell size for the
comparison group.
Discussion: As we explain earlier in Risk Ratios (Sec. 300.646(b);
Sec. 300.647(a)(2); Sec. 300.647(a)(3); Sec. 300.647(b)), we decline
to allow States to use risk difference to examine LEAs for significant
disproportionality. States are required under Sec. 300.646(b)(3), (4),
and (5) to calculate the risk ratio--or the alternate risk ratio--and
these methods cannot be calculated when the comparison group has a cell
size of 0, and cannot be calculated reliably when the comparison group
has a low cell or n-size. For these reasons, we disagree with the
commenter and will require States to apply minimum cell sizes to
comparison groups, under Sec. 300.646(b)(5), to determine whether the
alternate risk ratio will be used in place of the risk ratio.
Changes: None.
Comments: A number of commenters requested that, without the
flexibility to include both a minimum n-size and a minimum cell size,
States be allowed to include a test of statistical significance to
determine whether the risk ratio is statistically different from the
risk ratio threshold. Other commenters inquired about the use of
statistical significance tests on specific pieces of the risk
calculation prior to a finding of significant disproportionality.
[[Page 92435]]
Discussion: Given that States have access to population data on the
identification, placement, and discipline of children with
disabilities, tests of statistical significance would be inappropriate.
Further, the Department notes that commenters generally wanted
States to have the flexibility to conduct these tests in the absence of
flexibility to use minimum cell sizes. Given that States may set their
own reasonable minimum cell sizes and minimum n-sizes, we believe the
commenters' concerns to be addressed without allowing the use of
statistical significance testing.
Changes: None.
Comments: A large number of commenters requested that the
Department offer States flexibility to determine how to apply a minimum
population requirement to LEAs. These commenters wanted States to have
flexibility to add additional criteria beyond the minimum n-size to
avoid identifying significant disproportionality that is simply the
result of small numbers. One commenter noted that a minimum n-size of
10 fails to account for the overall size of an LEA. Another commenter
noted that one State uses a population requirement for the general
student population. A few commenters encouraged the Department to allow
States to consider, in implementing the standard methodology, the size
of the racial and ethnic group size in relation to the size of the LEA.
One commenter requested flexibility to use additional criteria beyond a
minimum n-size, such as requiring 30 or more children with an IEP for
calculations.
Discussion: The Department recognizes that there are multiple ways
that States could use data on the number of children in an LEA to
determine whether to exclude that LEA from its analysis for significant
disproportionality. For example, it is possible to devise a system in
which LEAs that do not have at least 500 children enrolled are not
subject to the standard methodology, or one in which an LEA is excluded
from analyzing a particular racial or ethnic group if that group
constitutes less than 1 percent of total enrollment in an LEA. However,
we believe that exclusions on these bases would be inappropriate, as
they are not closely related to concerns about data volatility and
could result in an inappropriately high number of LEAs being excluded.
Further, as every child with a disability is entitled to a free
appropriate public education in the least restrictive environment,
regardless of the size of the LEA or the proportion of enrolled
children who are in their particular racial or ethnic subgroup, we
believe it would be inappropriate to allow the exclusion of LEAs for
reasons unrelated to data volatility. We believe that State flexibility
to set reasonable minimum cell sizes and minimum n-sizes is sufficient
to address commenters' concerns regarding small numbers of children.
Changes: None.
Commenter: A commenter recommended that the Department require
States to report risk ratios that are corrected--using advanced
mathematical methods of correction or estimation--when LEAs have a cell
size of zero.
Discussion: In developing the standard methodology, the Department
placed a priority on selecting methods that were easy to comprehend,
that supported transparency, and that facilitated comparisons between
States' approaches to identifying significant disproportionality. With
a population requirement, such as the minimum cell size included in
Sec. 300.647(b)(1), LEAs can easily determine which racial and ethnic
groups the State will review for significant disproportionality, and
what categories of analysis will be reviewed. Further, they can
calculate for themselves the likely outcome of the review.
While the commenters' suggestion might enable States to review
additional LEAs for significant disproportionality, it would do so at
the cost of transparency, given the complexity of the analysis. For
this reason, the Department declines to require States to use this
analysis.
Changes: None.
Comment: One commenter stated that population requirements have
varied between LEAs, with some having a minimum of just 9 children
while other LEAs have set the minimum as large as 30 children. The
commenter expressed concern that population requirements that require a
greater number of children may result in significant disproportionality
being missed entirely in some LEAs.
Discussion: We agree with the commenter that, in general, LEAs with
significant disproportionality may be overlooked if either minimum n-
sizes or minimum cell sizes are too large. For this reason, under Sec.
300.647(b)(1), States will be required to set reasonable minimum cell
sizes and reasonable minimum n-sizes with input from State Advisory
Panels, and the States' chosen population requirements would also be
subject to the Department's enforcement of reasonableness. Further,
this provision requires States to identify and apply minimum n-sizes
and minimum cell sizes. LEAs will not be permitted to set their own
population requirements to determine whether the LEA, or if the racial
and ethnic groups within the LEA, will be reviewed by the State for
significant disproportionality.
Changes: None.
Alternate Risk Ratios (Sec. 300.647(a)(1); Sec. 300.647(b)(5); Sec.
300.647(c)(2))
Comment: A number of commenters responded to Directed Question #7
in the NPRM, which requested public input regarding the use of the
alternate risk ratio method in situations where the comparison group
does not meet the minimum n-size. Directed Question #7 also asked for
input on whether the use of the alternate risk ratio method would be
appropriate in other situations.
Some commenters opposed the use of an alternate risk ratio method.
Of these, some stated that an alternate risk ratio method would seldom
be appropriate because, in some States, few LEAs have demographics that
are similar to the State's overall demographics. This commenter
suggested that using an alternate risk ratio method will increase the
likelihood of false positive identification of LEAs with significant
disproportionality. A number of commenters expressed concern that, with
the alternate risk ratio, LEAs would be dependent upon States to
provide the data to calculate their risk ratios. These commenters
expressed a preference for calculations that LEAs would run independent
of the State. Another commenter expressed opposition to a standard
methodology in general and stated that the alternate risk ratio method
is similarly deficient because it fails to take into account factors,
such as poverty, that could affect the need for special education
services. Similarly, some commenters stated that, while the use of an
alternate risk ratio method may be appropriate in certain situations,
the Department should further consider allowing States to use
methodologies other than a risk ratio.
A few commenters expressed support for the use of an alternate risk
ratio approach in limited situations, such as when subgroup sizes are
small in number, or when the risk ratio is volatile across three years
of data. Other commenters supported the Department's proposal to allow
States to use the alternate risk ratio in instances where the total
number of children in a comparison group is less than 10 or when the
risk to children in a comparison group is zero.
Discussion: Under proposed Sec. 300.647(b)(5), States would have
used the alternate risk ratio, instead of the
[[Page 92436]]
risk ratio, whenever the comparison group at the LEA-level had an n-
size of fewer than 10 children (or children with disabilities, as
appropriate) or had a risk of 0 percent (i.e., had a cell size of 0).
This requirement was designed to prevent the possibility that States
might, from LEA to LEA, choose from either the risk ratio or alternate
risk ratio with the goal of avoiding an identification of significant
disproportionality.
As the Department has revised Sec. 300.647(b)(1) to allow States,
with input from stakeholders (including the State Advisory Panel), to
set reasonable minimum n-sizes and minimum cell sizes, we have likewise
revised Sec. 300.647(b)(5) to require States the use of the alternate
risk ratio when, within an LEA, the comparison group does not meet
either a reasonable minimum n-size or minimum cell size. While the
flexibility to determine reasonable minimum n-sizes and minimum cell
sizes will not allow States the option to simply choose, from LEA to
LEA, whether to apply the alternate risk ratio due to concerns about
risk ratio volatility, it would provide States the ability to avoid
risk ratio volatility due to small comparison group sizes. Likewise,
the ability of a State to determine reasonable minimum cell sizes and
minimum n-sizes should provide sufficient flexibility to avoid false
positives identification of significant disproportionality that might
result when examining small target or comparison groups.
With respect to the comment regarding the potential difficulty in
obtaining State data for use in the alternative risk ratio, we note
that the requirement to analyze LEAs is applicable to States, and
States have access to the State-wide data necessary to use when
applying the alternate risk ratio method. In reviewing LEAs for
significant disproportionality with respect to identification, we
generally expect that States will use the same IDEA section 618 data
that is reported to the Department for data regarding children with
disabilities, and data submitted to the Institute for Education
Sciences for the Common Core of Data, for enrollment data. OMB Control
No. 1875-0240. In reviewing LEAs for significant disproportionality
with respect to placement or discipline, we generally expect that
States will use the same section 618 data reported to the Department.
For IDEA section 618 data, discipline data is a cumulative count from
July 1st through June 30th, while IDEA section 618 child count data is
a point-in-time count that occurs in the fall. OMB Control No. 1875-
0240.
We disagree with commenters that the Department should allow States
to consider additional factors that might affect significant
disproportionality. Under the current regulations, the GAO noted 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 [of significant
disproportionality] is being appropriately identified across the
nation.'' It was this finding by the GAO, public comments the
Department received in a response to a 2014 request for information (79
FR 35154), and the Department's review of State definitions of
significant disproportionality that convinced the Department to issue
regulations to require that all States follow a standard methodology.
The Department believes that the proposed standard methodology--
including the use of the risk ratio or alternative risk ratio method--
is a necessary step to achieve those goals.
Changes: We have revised Sec. 300.647(b)(5) to require States the
use of the alternate risk ratio when, within an LEA, the comparison
group does not meet either a reasonable minimum n-size or minimum cell
size, as determined by the State in accordance with revised Sec.
300.647(b)(1).
Comment: A number of commenters suggested the Department provide
the flexibility to allow States to determine when and under what
circumstances the alternate risk ratio method would be most
appropriate. One of these commenters noted that one State currently
uses the alternate risk ratio in all instances and urged the Department
to allow this State to continue to do so rather than limiting the use
of the alternate risk ratio method to those situations when the risk
ratio method is not applicable. According to the commenter, the LEAs in
this State are familiar with the alternate risk ratio and understand
its calculation. In addition, the commenter asserted that the alternate
risk ratio provides the ability for comparability of results among the
LEAs in the State.
Other commenters asserted that while flexibility to use the
alternate risk ratio may be appropriate, a requirement to use the
alternate risk ratio method was not. Some of these commenters argued
that the alternate risk ratio, which uses the State's risk for the
comparison group, is inappropriate in States in which the racial and
ethnic composition of LEAs differs significantly from that of the
State. These commenters indicated that allowing States to use a minimum
cell size for both the racial or ethnic group of interest and the
comparison group would eliminate the need for the alternate risk ratio
calculation.
Another commenter noted that the use of an alternate risk ratio for
some LEAs or some subgroups within an LEA will create disparities in
the application of the regulation. The commenter requested that States
have the flexibility to use either the risk ratio or the alternate risk
ratio for all of the LEAs and subgroups within the State.
Still another commenter suggested that the Department allow, but
not require, the alternate risk ratio method, stating that, while the
alternate risk ratio may solve the problem of low cell size for the
comparison population, it precludes an accurate measure of
disproportionality because it relies on a comparison of two dissimilar
populations. According to the commenter, if referral rates in an LEA
are high in general, application of the risk ratio method would not
suggest significant disproportionality; use of the alternate risk ratio
method, however, where the LEA's generally high referral rates would be
compared to the State's average referral rates, would result in all
groups being found to be disproportionate. This commenter further
stated that the alternate risk ratio will create a substantial risk in
States with predominantly White rural areas that a large number of LEA
findings will be due to significant overrepresentation for White
children. The commenter questioned whether Congress, in framing IDEA in
2004, intended to address the disparate treatment of White children.
The commenter argued that, while the issue of over-referral to special
education could be an issue for OSEP or SEAs to address, comprehensive
CEIS should be a vehicle to monitor significant disproportionality, not
referral rates.
Another commenter noted that, when an LEA suspends just one or two
children of one racial or ethnic group and none of any other racial or
ethnic group, the alternate risk ratio will kick in and, due to small
numbers that produce a high risk for one particular racial or ethnic
group, a high alternate risk ratio will be produced and trigger a
finding of significant disproportionality Other commenters arrived at a
similar conclusion: They advised the Department to not require the use
of the alternate risk ratio calculation as, according to them, it only
provides a viable option for examining racial or ethnic disparities in
a limited number of circumstances (e.g., when the comparison group does
not meet the minimum n-size or cell size), failing to address very
small target populations.
[[Page 92437]]
Discussion: We appreciate the comments regarding the required use
of the alternative risk ratio. With respect to comments suggesting that
the Department permit States to apply the alternate risk ratio whenever
they deem it appropriate, we reiterate that the alternative risk ratio
may be used only when the risk ratio method is not available. As we
stated in the NPRM, it is the Department's position that, whenever
possible, analyses for significant disproportionality under IDEA
section 618(d) should compare identification, placement, and discipline
rates in an LEA to those rates for other racial and ethnic groups in
the same LEA.
We disagree with commenters suggesting that States should have
flexibility to exclude from a review of significant disproportionality
those racial or ethnic groups within LEAs that do not have a
sufficiently large comparison group. For similar reasons, we disagree
with commenters objecting to the alternate risk ratio due to
demographic differences between the State and LEA. The Department
believes that, in racially or ethnically homogenous LEAs--including
rural, predominantly White districts--and LEAs with markedly different
demographic characteristics than a State, there is a possibility that a
particular racial or ethnic group is identified, placed, or
disciplined, at markedly higher rates than their peers. In these cases,
the absence of a comparison group should not excuse either the State or
the LEA from their responsibility under IDEA section 618(d) to identify
and address significant disproportionality.
We disagree with the suggestion that IDEA section 618(d) was not
intended to address significant disproportionality that impacts White
children. The plain language of IDEA section 618(d) (20 U.S.C. 1418(d))
requires States to identify significant disproportionality, based on
race or ethnicity, without any further priority placed on specific
racial or ethnic groups. For that reason, the Department believes that
the statute directs States to address significant disproportionality
impacting all children with disabilities.
We further disagree with commenters that an alternate risk ratio
requirement does not measure racial and ethnic disparity. Most measures
of racial and ethnic disparity include some comparison of risk; in the
case of the alternate risk ratio, the comparison is not to a State risk
index, but to a State-level comparison group (e.g., Black children in
an LEA, compared with non-Black children in the State).
Finally, with respect to the possibility that, for any one LEA with
high referral rates across all groups, all racial and ethnic groups
could trigger a finding of significant disproportionality if an
alternate risk ratio is required, we do not believe that there is a
high likelihood of that scenario occurring. The alternate risk ratio
would only be utilized in cases where, for a particular racial or
ethnic group, there is a small comparison group at the LEA-level or the
comparison group's risk is zero at the LEA-level. Likewise, the
flexibility to set reasonable minimum cell sizes and minimum n-sizes
should allow States to avoid identifying LEAs based on a small number
of children in a particular group. In either case, it is likely that
the racial and ethnic groups that comprise the comparison group would
not be reviewed for significant disproportionality, as, per Sec.
300.647(c)(1), States will have the flexibility to exclude from their
review for significant disproportionality those racial and ethnic
groups they do not meet both a minimum n-size and minimum cell size.
Changes: None.
Comment: One commenter suggested that the alternate risk ratio
would be appropriate in situations where an LEA is home to highly
specialized programs for children with autism or hearing impairments,
or where the mobility rate is significantly discrepant from the State
average.
Discussion: We disagree. As we stated in the NPRM, it is the
Department's position that, whenever possible, analyses for significant
disproportionality under IDEA section 618(d) should compare
identification, placement, and discipline rates in an LEA to those
rates for other racial and ethnic groups in the same LEA. Generally,
variations from statewide trends is not an ideal indicator of whether
significant disproportionality exists, which is why the Department
initially proposed to limit the use of the alternate risk ratio to
instances in which the comparison group is particularly small or the
risk to that group is zero. In instances where an intra-LEA analysis
either does not create mathematical quandaries (i.e., dividing by zero)
or does not rely on particularly small comparison groups, racial and
ethnic groups within an LEA should be compared with other groups within
the LEA. Under Sec. 300.647(b)(5), the Department will limit the use
of the risk ratio to instances where the comparison group does not meet
either the State's reasonable minimum cell size or minimum n-size.
In instances where LEAs have highly specialized programs, LEAs
should work to ensure that these programs are equally accessible to all
children eligible for the program, regardless of race or ethnicity.
Similarly, LEAs should ensure that decisions to place particular
children with disabilities in segregated settings are based on the
individual needs of those children consistent with civil rights laws.
Unnecessarily removing children with disabilities from an integrated
setting and concentrating them in separate schools runs contrary to the
integration goal that lies at the heart of the Americans with
Disabilities Act (ADA). (See, e.g. 28 CFR 35.130(b)(1)(ii), (b)(1)(iv),
(b)(2); see also, Olmstead v. L.C., 527 U.S. 581, 597 (1999)
(``Unjustified isolation, we hold, is properly regarded as
discrimination based on disability'' under title II of the ADA).)
Further, as discussed earlier, the level of student mobility in an
LEA does not obviate that LEA's obligation under IDEA to ensure that
all children with disabilities have access to a free appropriate public
education in the least restrictive environment. LEAs should ensure that
they are meeting this obligation for all children, and that they are
doing so without regard to a child's race or ethnicity.
Finally, it is not clear to the Department how a calculation of an
alternate risk ratio, rather than a risk ratio, would result in a more
accurate assessment of significant disproportionality for LEAs with
specialized programs or highly mobile student populations.
Changes: None.
Comments: One commenter suggested that if an SEA uses multiple
years of data, and an LEA's racial composition requires the use of the
alternate risk ratio in one year, then the State should have the
flexibility to use the alternate risk ratio in the other years to
determine significant disproportionality. The commenter suggested, for
example, that an SEA using three years of data be permitted to apply
the alternate risk ratio to years one and three of the data even if the
alternate risk ratio was only triggered in year two of the data.
Discussion: The Department does not believe it appropriate to allow
States to use the alternate risk ratio for LEAs in the years just prior
to, or immediately following, years when it is required to do so
because the comparison group does not meet the State's reasonable
minimum n-size or reasonable minimum cell size. As we stated in the
NPRM, it is the Department's position that, whenever possible, LEA data
is
[[Page 92438]]
preferable to State-wide data for the purpose of identifying
significant disproportionality as they best represent the practices of
the LEA and the experiences of the children enrolled in the LEA. 81 FR
10967. In years when an LEA has a sufficiently large population of
children, or children with disabilities, to meet the State's reasonable
minimum cell size and minimum n-size, it is the Department's preference
that States use the LEA's information to identify if significant
disproportionality is taking place.
Changes: None.
Flexibilities--Three Consecutive Years of Data, Sec. 300.647(d)(1)
Comment: One commenter expressed concern that allowing States to
identify LEAs with significant disproportionality by examining up to
three prior consecutive years in proposed Sec. 300.647(c)(1) is
ambiguous. Further, the commenter stated that it is not clear whether
the regulation is written to mean that an LEA could be identified in
the year in which their data exceeded the State-defined threshold or if
the LEA could exceed the threshold for three years and then be
determined to have significant disproportionality in the fourth year.
If the regulation is written to mean the latter, the commenter
expressed that four years is an unnecessarily long delay. Another
commenter stated that it is unclear whether the State may begin
consideration of the three years of data on the date the regulations go
into effect.
Discussion: The Department appreciates the opportunity to clarify
this flexibility. Under final Sec. 300.647(d)(1), States may make a
determination that an LEA has significant disproportionality after the
LEA has exceeded a risk ratio threshold for a particular racial or
ethnic group and category of analysis for up to three prior consecutive
years preceding the identification. Under this provision, a State is
prohibited from waiting four years to identify an LEA with significant
disproportionality if it has exceeded the State's risk ratio threshold
for up to three prior consecutive years. The use of the term ``prior''
is meant to clarify that any determination of significant
disproportionality uses the most recent year for which data are
available and up to two previous consecutive years of data.
For example, if a State is making a determination in the 2018-2019
school year, it can rely on up to three years of data to make its
determinations (e.g., 2015-2016, 2016-2017, and 2017-2018). If an LEA
exceeds the risk ratio threshold for a particular racial or ethnic
group for a particular category of analysis in each of those years, the
State must identify that LEA as having significant disproportionality.
The fact that the determination made in 2018-2019 is based, in part, on
data from 2015-2016 does not constitute a delay of four years to make a
determination, but is a result of data lags that occur regardless of
how many prior years of data a State analyzes (e.g., 2018-2019 child
count, placement, and discipline data are not typically available in
time for States' determinations in the 2018-2019 school year).
The flexibility to determine significant disproportionality after
one, two, or three consecutive years was designed to account for
volatility--small changes in data from year to year that may cause
large changes in a risk ratio and cause an LEA to be identified with
significant disproportionality. Allowing States to take into
consideration up to three consecutive years of data provides an
opportunity for the States to determine which LEAs have significant
disproportionality on the basis of consistently elevated risk ratios,
rather than what may be a single year increase.
Also, as we noted in the NPRM, using three consecutive years of
data was the most common approach to identifying significant
disproportionality among the States in 2012-2013. Of the 23 States that
reported using multiple years of data in the SY 2012-2013 State
Supplement Survey (SSS), 13 States required an LEA to exceed the
threshold for three consecutive years before finding significant
disproportionality, while 9 States required 2 consecutive years.
Changes: None.
Comment: Regarding proposed Sec. 300.647(c)(1), a large number of
commenters expressed support for requiring, rather than allowing,
States to rely on three years of data before making a determination of
significant disproportionality. Several other commenters supported
States choosing to identify an LEA as having significant
disproportionality only after the LEA exceeds a risk ratio threshold
over a period of time (such as three consecutive years) as a matter of
best practice to avoid the identification of significant
disproportionality due to data anomalies.
Discussion: Final Sec. 300.647(d)(1) will permit, but not require,
States to rely on up to three years of data in order to make a
determination of significant disproportionality. The Department
believes that States should have the flexibility to make a
determination of significant disproportionality based on one, two, or
three consecutive years of data. The Department also believes that this
flexibility will help States both account for year-to-year volatility
in the risk ratio and focus on LEAs with consistently high risk ratios.
At the same time, we do not believe it appropriate to require
States to use three consecutive years of data--rather than two
consecutive years, or only one year--prior to identifying significant
disproportionality. Given the flexibility States will have under Sec.
300.647 to set reasonable population requirements--which will also
reduce risk ratio volatility--reasonable risk ratio thresholds, and
standards for reasonable progress, States may determine that a
particular combination of these methods appropriately identifies
significant disproportionality using one or two years of data. In these
cases, the Department does not want to require States to wait an
additional year, or an additional two years, to make an identification
of significant disproportionality when they have confidence that the
racial and ethnic disparities within an LEA require more immediate
intervention.
Changes: None.
Comment: Many commenters expressed general support for allowing
States to use up to three consecutive years of data, under proposed
Sec. 300.647(c)(1), prior to making a determination of significant
disproportionality. One commenter expressed support for allowing up to
three consecutive years of data, so long as States continue to be
required to annually calculate risk ratios to determine significant
disproportionality. That same commenter argued that analyzing three
consecutive years of data gives LEAs more advanced notice, flexibility,
and support in which to implement systemic changes before a finding of
significant disproportionality can occur. A few commenters expressed
that allowing States to wait for more than three consecutive years--
that is, longer than the period specified in the Department's
proposal--before identifying significant disproportionality would mean
that thousands of misidentified, misplaced, and over-disciplined
children would continue to be denied the high quality education they
need.
Discussion: The Department appreciates the commenters' support and
believes that this flexibility will help States account for volatility
in risk ratios. Allowing States to take into consideration the data of
up to three consecutive years provides an opportunity for the States to
focus their efforts on LEAs with consistently high
[[Page 92439]]
risk ratios year over year, rather than only those with a single year
of a high risk ratio. Further, we agree with the commenter's
interpretation of proposed Sec. 300.647(c)(1) (now Sec.
300.647(d)(1)) that States must examine their LEAs for significant
disproportionality every year. The flexibility in this section allows
the State to limit their findings of significant disproportionality to
LEAs that exceed the State's risk ratio threshold for up to three prior
consecutive years, as is already the common practice in a number of
States. As we noted in the NPRM (81 FR 10985), based on the SY 2013-14
State Supplement Survey, 23 States require that LEAs exceed a specified
level of disparity for multiple years for at least one category of
analysis for at least one racial or ethnic group before the LEA is
identified as having significant disproportionality. Of these 23
States, 13 require 3 consecutive years of risk ratios exceeding an
established threshold. We therefore agree with the comment that a
longer period of analysis would not be appropriate.
Changes: None.
Flexibilities--Reasonable Progress, Sec. 300.647(d)(2)
Comment: Many commenters expressed support for proposed Sec.
300.647(c)(2) allowing States to exempt LEAs from a determination of
significant disproportionality if they show reasonable progress.
Discussion: The Department appreciates commenters' support for this
flexibility. We believe it is important to allow States the flexibility
to not identify LEAs with significant disproportionality if, for
example, a prior review and revision of policies, practices, and
procedures and effective use of funds for comprehensive CEIS has
resulted in a reasonable reduction in risk ratios in each of the two
prior consecutive years. In such an LEA, a continued finding of
significant disproportionality, including an ongoing annual review of
policies, practices, and procedures, may actually divert State
attention from LEAs in which substantial problems continue to occur and
are not improving.
Changes: None.
Comments: Two commenters asked for additional Federal guidance
regarding what constitutes reasonable progress because allowing States
to interpret ``reasonable progress'' may allow LEAs to ``backslide.''
One commenter stated that the Department should place restrictions on
the definition of ``reasonable progress'' if trend data indicates that
different rates of progress are appropriate for different demographic
groups across identification, placement, and discipline. Other
commenters recommended clearly defining ``reasonable progress'' and
including a rubric for determining whether the State is correctly
applying ``reasonable progress'' and monitoring trends across States
for appropriate definitions of reasonable progress. Finally, one
commenter posited that, without a clearer definition of reasonable
progress, the flexibility may become a loophole allowing States to
avoid identifying LEAs.
Discussion: We appreciate commenters' concerns regarding the
reasonable progress flexibility. While the Department believes that
States should retain broad flexibility to set a standard for
``reasonable progress,'' it was not our intent to allow States
unfettered flexibility in this area. We have revised the regulations to
ensure that a State's standard for reasonable progress is meaningful,
and to reduce the likelihood that an LEA might meet the standard due to
reductions in risk ratios resulting from a data anomaly. Under final
Sec. 300.647(d)(2), LEAs must be making reasonable progress in
lowering the risk ratio or alternate risk ratio for the group and
category for each of the two prior consecutive years, rather than the
immediate preceding year. As such, if an LEA is not reducing risk
ratios over each of the two prior consecutive years, a State cannot
exercise this flexibility. Further, we have revised Sec.
300.647(b)(1), to require each State to consult with its stakeholders,
including State Advisory Panels, before setting a standard for
reasonable progress. This revision also clarifies that the State's
standard for reasonable progress, under Sec. 300.647(d)(2), is subject
to the Department's monitoring and enforcement for reasonableness.
While, in the NPRM, the Department suggested that States might make
a determination of ``reasonable progress'' on a case-by-case basis, we
no longer find this degree of flexibility to be appropriate. While
States would retain the flexibility to set a standard for reasonable
progress--including the flexibility to set a standard that requires
different risk ratio reductions for each of the categories in
paragraphs (b)(3) and (4)--this standard must be developed with the
advice of stakeholders, including the State Advisory Panel, and
implemented uniformly across the State. We do not, however, believe
that a standard that requires different risk ratio reductions for LEAs
that exceed the State's risk ratio threshold for different racial or
ethnic groups would meet constitutional scrutiny.
The proposed regulations also included additional restrictions to
how a State may implement Sec. 300.647(d)(2), which we retain in these
final regulations. If an LEA is reducing risk ratios generally, but not
for the specific group and category for which its risk ratio exceeded
the State's risk ratio threshold, a State cannot exercise this
flexibility. Similarly, if an LEA exceeds the risk ratio threshold in
four areas and is making reasonable progress in only three of them, a
State could not use this flexibility to not identify the LEA with
significant disproportionality in the area in which the LEA is not
making reasonable progress. Therefore, while States can determine
specific standards for what constitutes reasonable progress (e.g., a
reduction of the risk ratio by 0.5 in each of the two prior consecutive
years), they can do so only within a specified set of circumstances.
In sum, the Department does not believe that this flexibility
represents an unchecked loophole for States. The Department plans to
monitor States' implementation of this flexibility and, as appropriate,
will provide technical assistance on best practices as they become
evident. The Department may also take appropriate enforcement action,
ranging from requiring a corrective action plan, to imposing special
conditions, to designating the State as high-risk status, to
withholding a portion of the State's IDEA Part B funds.
Changes: We have revised Sec. 300.647(b)(1) to clarify that the
State's standard of ``reasonable progress'' must be developed with the
advice of stakeholders, including State Advisory Panels, and is subject
to the Department's monitoring and enforcement for reasonableness. We
have also revised Sec. 300.647(b)(1) to clarify that a State may, but
is not required to, set the standards for measuring reasonable progress
at different levels for each of the categories described in paragraphs
(b)(3) and (4). In addition, we have revised Sec. 300.647(d)(2) to
require that an LEA make reasonable progress in reducing the
appropriate risk ratio (or alternate risk ratio) in each of two prior
consecutive years, rather than the immediate preceding year.
Comments: Several commenters supported giving States significant
flexibility in defining ``reasonable progress,'' and emphasized that
there should be no additional restrictions on State flexibility to
define ``reasonable progress.''
[[Page 92440]]
Discussion: We appreciate the commenters' perspective. While we
believe that States should have broad flexibility to set a standard for
``reasonable progress,'' it was the Department's intent to restrict
States to only those standards that are reasonable and are indicative
of meaningful progress. As we note earlier in this section, we believe
that two changes to regulation are necessary to help States to select a
standard that is reasonable and to reduce the likelihood that data
anomalies will prevent the appropriate identification of LEAs with
significant disproportionality.
Changes: We have revised Sec. 300.647(b)(1) to clarify that the
State's standard of ``reasonable progress'' must be developed with the
advice of stakeholders, including State Advisory Panels, and is subject
to the Department's monitoring and enforcement for reasonableness. We
have revised Sec. 300.647(d)(2) to require that an LEA make reasonable
progress in reducing the appropriate risk ratio (or alternate risk
ratio) in each of the two prior consecutive years, rather than the
immediate preceding year.
Comment: A commenter requested clarity regarding the best way to
determine whether an LEA has achieved reasonable progress such that a
determination of significant disproportionality is no longer required.
Discussion: In general, the Department expects that States
implementing the revised final Sec. 300.647(d)(2) will examine LEAs
for reasonable progress in reducing their risk ratios in each of the
two prior consecutive years. For example, a State may choose to review
LEAs for significant disproportionality in SY 2018-2019 based on data
from SYs 2017-18, 2016-17, and 2015-16. Should the State identify an
LEA that exceeds a particular risk ratio threshold for all three years,
the State has the option, under final Sec. 300.647(d)(2), not to make
a finding of significant disproportionality if the LEA has achieved at
least a reasonable decrease in their risk ratios between SYs 2015-2016
and 2016-17, and between SYs 2016-2017 and 2017-2018. The State does
not have the option to postpone a finding of significant
disproportionality if the LEA has only achieved a decrease in their
risk ratios over a multiple year period; that is, if an LEA reduced its
risk ratio from 2015-2016 to 2017-2018, but not from 2015-2016 to 2016-
2017, the State does not have the flexibility to not identify the LEA
as having significant disproportionality if it otherwise exceeds the
State's risk ratio threshold. So long as an LEA exceeds a risk ratio
threshold, the LEA must make continuous progress, in each of the two
prior consecutive years, in reducing its risk ratio to avoid a finding
of significant disproportionality.
Changes: None.
Comment: One commenter stated that, in a State that uses three
years of data, the data used to consider a determination of significant
disproportionality is old and likely includes a substantial number of
children who no longer attend the LEA. The commenter also stated that,
because of the time it will take for the LEA to develop a plan, and
report to the Department any improvement, years will have passed
between the original identification of significant disproportionality
and data showing the results of LEA-level changes.
Discussion: We recognize that, given the time necessary to collect,
prepare, and analyze data, the information States will use to identify
significant disproportionality may be delayed a number of years,
particularly when States are also exercising the flexibility under
Sec. 300.647(d)(1) to consider up to three prior consecutive years of
data. The data analyzed may indeed include children no longer enrolled
within the LEA. However, the data lag is, in part, necessary to ensure
accuracy of the information on which findings are based. It would be
impossible for a State to make a determination of significant
disproportionality regarding discipline for the current year based on
the current year's data, as the school year is currently ongoing and
the State would therefore be basing determinations on incomplete data.
These limitations do not reduce the value of these analyses,
particularly as IDEA section 618(d) was intended to address those LEAs
with systemic racial and ethnic disparities in special education,
rather than providing specific relief to specific children with
disabilities. Other provisions of IDEA are meant to address the
individual rights of children with disabilities to a free appropriate
public education in the least restrictive environment.
Changes: None.
Comments: Two commenters suggested that reasonable progress should
be defined so that it is meaningful.
Discussion: We agree with the commenters that the standard for
reasonable progress should represent a meaningful degree of improvement
in the performance of the LEA. To ensure this, the Department will now
require States to consult with stakeholders, including State Advisory
Panels, prior to setting a standard for reasonable progress under Sec.
300.647(d)(2). Further, each State's standard for reasonable progress
will be subject to the Department's monitoring and enforcement for
reasonableness.
In addition, States should set their reasonable progress standards
based on whether the progress realized by LEAs in lowering risk ratios
represents a meaningful benefit to children in the LEA, rather than
statistical noise or chance. To increase the likelihood that States'
standards will accomplish this goal, the Department will now allow
States to make a determination of reasonable progress only after an LEA
has made reasonable progress in reducing its risk ratio in each of the
two prior consecutive years.
Changes: We have revised Sec. 300.647(b)(1) to clarify that the
State's standard for ``reasonable progress'' must be developed with the
advice of stakeholders, including State Advisory Panels, and is subject
to the Department's monitoring and enforcement for reasonableness. We
have revised Sec. 300.647(d)(2) to require that an LEA make reasonable
progress in reducing the risk ratio (or alternate risk ratio) in each
of the two prior consecutive years, rather than only from the immediate
preceding year.
Comments: One commenter suggested that, to show reasonable
progress, an LEA must consistently reduce risk ratios across a three
year period and requested clarification as to how consistent progress
must be for a State using three years of data.
Discussion: The Department appreciates the recommendation. We
understood the commenter to be recommending that, when looking across a
three year period (e.g., 2015-16, 2016-17, and 2017-18), an LEA should
both show a year to year decrease in their risk ratio and an overall
downward trend across the period, regardless of whether the first year
of the period (e.g., 2015-16) was a decrease from the preceding year
(e.g., 2014-15). We agree with the commenter that the LEA should make
progress each year in reducing its risk ratio, and have revised the
regulations to allow States to not identify an LEA with significant
disproportionality if the LEA achieves reasonable progress, under Sec.
300.647(d)(2), in reducing its risk ratio (or alternate risk ratio)
from the preceding year in each of the two prior consecutive years. We
believe this mirrors the recommendation of the commenter. We decline to
require that LEAs reduce their risk ratio over a longer period of time,
as it would require States to examine four or more years of data to
determine whether the LEA had achieved reasonable progress.
[[Page 92441]]
Under the revised regulation, the Department will allow States to
implement both Sec. 300.647(d)(1) and (2) using only three prior
consecutive years of data.
For example, State A has a risk ratio threshold of 3.0 and two LEAs
in the State have risk ratios 3.6 (LEA 1) and 4.3 (LEA 2) in SY 2020-
2021. If the State opts to use the reasonable progress flexibility, the
State would have to examine the risk ratios for those LEAs, for the
particular group and category, for the two preceding years. If LEA 1
had a risk ratio of 4.9 in 2018-2019 and a risk ratio of 4.3 in 2019-
2020, the State could determine that this LEA had demonstrated
reasonable progress in reducing its risk ratios and not make a
determination of significant disproportionality (assuming a reduction
from 4.9 to 4.3 to 3.6 met the State's identified standard).
However, if LEA 2 had a risk ratio in 2018-2019 of 4.9 and a risk
ratio of 3.6 in 2019-2020, the State must identify that LEA as having
significant disproportionality because it did not reduce its risk ratio
in each year for two consecutive years. Even though the risk ratio of
4.3 in 2020-2021 is less than the risk ratio in 2018-2019, the increase
from 2019-2020 to 2020-2021 means the LEA has not made reasonable
progress in reducing its risk ratio.
Table 1--Example Risk Ratios by Year in Demonstrating Reasonable
Progress
------------------------------------------------------------------------
2019 2020 2021 Notes
------------------------------------------------------------------------
LEA 1............ 4.9 4.3 3.6 State can determine LEA
made reasonable progress
because of decrease in
risk ratio from prior
year for two consecutive
years.
LEA 2............ 4.9 3.6 4.3 State may not determine
LEA made reasonable
progress because risk
ratio increased from 2020
to 2021.
------------------------------------------------------------------------
Changes: None.
Comment: A commenter suggested that the Department allow States to
determine that an LEA has made reasonable progress if the LEA provides
evidence that it is actively addressing the significant
disproportionality, regardless of whether the LEA's data reflects that
progress has been achieved.
Discussion: As noted above, Sec. 300.647(d)(2) allows a State not
to identify an LEA with significant disproportionality if it is making
reasonable progress in lowering the risk ratios for the group or
category in each of the two prior consecutive years. Further, IDEA
section 618(d) (20 U.S.C. 1418(d)) requires States to base their
determination of significant disproportionality on a collection and
examination of data. For these reasons, States are not permitted to use
information other than data on racial and ethnic disparities to
distinguish whether significant disproportionality is occurring within
an LEA or to determine whether that LEA is making reasonable progress
under Sec. 300.647(d)(2).
Changes: None.
Comments: One commenter stated that providing States with the
flexibility not to identify LEAs demonstrating reasonable progress in
lowering the risk ratio will not remedy matters of identification due
solely to small cell size. The Department interpreted this comment to
suggest that proposed Sec. 300.647(c)(2) will not prevent the
inappropriate identification of LEAs due to small populations of
children.
Discussion: The Department agrees with the commenter and did not
intend for proposed Sec. 300.647(c)(2) (now Sec. 300.647(d)(2)) to
prevent the identification of LEAs with significant disproportionality
due to the volatility in risk ratios that can result from small numbers
of children. Two other provisions are intended to address that issue.
Under Sec. 300.647(b)(1)(i)(B) and (C), States must set minimum n-
sizes and minimum cell sizes. If a particular racial or ethnic group
being analyzed in an LEA does not meet the minimum n-size and minimum
cell size established by the State, the State is not required to use
the standard methodology. We believe that this flexibility is
sufficient to address concerns about identification of an LEA as having
significant disproportionality on the basis of small numbers of
children.
Changes: None.
Comment: Multiple commenters expressed concerns with the use of
risk ratio as a measurement of reasonable progress under proposed Sec.
300.647(c)(2). These commenters argued that absolute reductions in
risk, and not risk ratios, should be used to measure progress,
especially for restrictive placements and discipline.
Discussion: The Department appreciates the concerns raised by
commenters. However, as noted above, IDEA section 618(d) (20 U.S.C.
1418(d)) is primarily concerned with significant disproportionality
across racial and ethnic groups, rather than the specific rates of
identification, placement in particular settings, or discipline for
children with disabilities. As such, we believe it would be
inappropriate to provide States the flexibility not to identify an LEA
with significant disproportionality on the basis of a criterion that is
not related to the relative numbers of children (or children with
disabilities) experiencing a particular outcome across racial or ethnic
groups.
Changes: None.
Comments: A number of commenters stated that risk ratios are
inappropriate measures of progress when the underlying risk of
placement in restrictive settings or of disciplinary removal is
unacceptably high. For example, they argued that increasing the risk
level for the lower incidence group in the risk ratio comparison would
also reduce the risk ratio but not the overall exclusion of children
from the classroom; according to the commenters, that scenario should
never be considered reasonable progress. Commenters stated that a
necessary component of any State's determination of reasonable progress
must be that the racial or ethnic group with the highest risk level
sees a reduction in its risk level.
Discussion: The Department recognizes and appreciates the
commenters' concerns. For several years, the Department has worked to
assist States to strengthen behavioral supports to children with the
goal of reducing schools' reliance on suspensions and expulsions. For
this reason, the Department appreciates that commenters examined this
component of the regulation for potential unintended incentives that
could inhibit the progress of States and LEAs in reducing disciplinary
removals. However, in considering the issues that the commenters have
raised, the Department disagrees that allowing States to use the risk
ratio to measure reasonable progress with respect to disciplinary
removals would create an incentive to raise rates of suspension or
expulsion.
[[Page 92442]]
We find it highly unlikely that LEAs would respond to a finding of
significant disproportionality by systematically seeking out children
with disabilities in other racial or ethnic groups and suspending or
expelling them solely to meet the State's definition of reasonable
progress. Further, to the extent that an LEA was engaging in those
practices, we would expect a State to take strong administrative action
to prevent them, as they clearly represent a denial of a free
appropriate public education in the least restrictive environment.
The Department has worked to provide educators and schools with
easy access to information regarding school discipline reform. Tools,
data, and resources are available at www.ed.gov/school-discipline.
Changes: None.
Comment: One commenter noted that, in general, reducing discipline
frequencies will tend to increase, not reduce, relative difference in
discipline rates.
Discussion: We recognize that, in an LEA that is generally reducing
rates of discipline for all children with disabilities, it may become
markedly more difficult to demonstrate reasonable progress in lowering
risk ratios. For example, if an LEA suspended 15 percent of Hispanic
children with disabilities and 3 percent of all other children with
disabilities, it would have a risk ratio of 5.0. In order to
demonstrate a reduction in the risk ratio of 0.1, the LEA would have to
reduce the suspension rate for Hispanic children with disabilities to
14.7 percent if the rate for all other children remained the same.
However, if the LEA reduced the suspension rates for non-Hispanic
children with disabilities to 2 percent, an LEA would actually have to
reduce its suspension rate for Hispanic children with disabilities to
9.8 percent to achieve the same 0.1 reduction in their risk ratio, a
much larger reduction for the same ``effect size.'' Nonetheless, the
difficulty of demonstrating reasonable progress in lowering the risk
ratio does not invalidate the worthy goal of reducing disparities on
the basis of race and ethnicity. Further, we note that, to the extent
that the number of children with disabilities being suspended or
expelled in an LEA decreases below the State's minimum cell size, a
State is not required to use the standard methodology for determining
whether there is significant disproportionality in the LEA.
Changes: None.
Comment: One commenter suggested that proposed Sec. 300.647
include a flexibility to not identify LEAs with significant
disproportionality if the State can identify through a review of data
that the disproportionality is not the result of the actions of the
LEA.
Discussion: The Department recognizes that States have a vested
interest in ensuring that their support of LEAs identified with
significant disproportionality is appropriately targeted and may wish
to avoid the statutory remedies in the event that an LEA with
apparently strong policies, practices, and procedures nonetheless has
significantly disproportionate rates of identification, placement and
discipline for particular racial or ethnic groups. However, as noted
above, IDEA section 618(d) (20 U.S.C. 1418(d)) clearly establishes that
the basis for a finding of significant disproportionality is a
disparity in the identification, placement and discipline of children
on the basis of race and ethnicity and the review of policies,
practices, and procedures a consequence of, rather than a part of, a
determination of significant disproportionality. As such, the
Department is precluded from waiving, or allowing States to waive, such
a finding on the basis of criteria unrelated to those disparities.
Further, regardless of whether any particular disparity in the
identification, placement, and discipline of children on the basis of
race and ethnicity can be linked to a specific LEA action, LEAs may
still benefit from the review and, if necessary, revision of their
policies, practices, and procedures and the reservation of funds for
comprehensive CEIS to address those disparities.
Changes: None.
Comment: None.
Discussion: Upon further consideration of the regulatory language
originally proposed under Sec. 300.647(c)(2), we believe that
provision includes an inappropriate, and potentially confusing,
reference to alternate risk ratio thresholds. Under Sec.
300.647(b)(1), States are required to establish one or more reasonable
risk ratio thresholds, and, under Sec. 300.647(b)(6), identify an LEA
with significant disproportionality if any of the LEA's risk ratios or
alternate risk ratios exceed the reasonable risk ratio threshold. The
Department did not include in Sec. 300.647 any provision that would
allow States to establish an alternate risk ratio threshold--both risk
ratios and alternate risk ratios are to be compared to the State's
reasonable risk ratio threshold.
While it was the Department's intention, with proposed Sec.
300.647(c)(2), to allow States the flexibility to not identify an LEA
that exceeds a risk ratio threshold when the LEA makes reasonable
progress in reducing the risk ratio or alternate risk ratio for the
applicable racial and ethnic group and category of analysis, the
proposed provision inappropriately extended this flexibility to
circumstances where LEAs exceeded an alternate risk ratio threshold.
This gives the mistaken impression that States have the option to
create separate alternate risk ratio thresholds.
Changes: We have revised proposed Sec. 300.647(c)(2), now Sec.
300.647(d)(2), to remove the reference to an alternate risk ratio
threshold.
III. Clarification that Statutory Remedies Apply to Disciplinary
Actions (Sec. 300.646(a)(3) and (c))
Comments: A number of commenters supported our clarification in
proposed Sec. 300.646(c) that States must address significant
disproportionality in the incidence, duration, and type of disciplinary
actions for children with disabilities, including suspensions and
expulsions, just as they address significant disproportionality in the
identification and placement of children with disabilities--by ensuring
the review of and, if necessary, the revision of and reporting on LEAs'
policies, practices, and procedures and by setting aside 15 percent of
Part B IDEA funds to provide comprehensive CEIS.
Discussion: We appreciate commenters' support for the proposed
regulation that would incorporate the Department's long-standing
position on this issue.
Changes: None.
Comments: One commenter argued that the clarification, even if it
embodies a long-standing position of the Department, misreads the
statute. The plain language of IDEA section 618(d)(1) (20 U.S.C.
1418(d)(1)) requires States to determine whether in the State and its
LEAs there is significant disproportionality with respect to race and
ethnicity in the identification, placement, and discipline of children
with disabilities. Section 618(d)(2) (20 U.S.C. 1418(d)(2)), however,
only mentions identification and placement. As such, the commenter
argued that the application of the statutory remedies based on a
finding related to discipline was not supported by the statute, a
reading the commenter stated was supported by a number of canons of
statutory construction.
Discussion: As we stated in the NPRM, when Congress added
discipline to IDEA section 618(d)(1) (20 U.S.C. 1418(d)(1)), it made no
corresponding change to IDEA section 618(d)(2) (20 U.S.C. 1418(d)(2)),
which created an ambiguity because IDEA section
[[Page 92443]]
618(d)(2) does not explicitly state that the remedies in IDEA section
618(d)(2) apply to removals from placement that are the result of
disciplinary actions. The Department reads the term ``placement'' in
the introductory paragraph of section 618(d)(2) to include disciplinary
actions that are also removals of the child from his or her current
placement for varying lengths of time, including removals that may
constitute a change in placement under certain circumstances. IDEA
section 615(k)(1), 20 U.S.C. 1415(k)(1). A disciplinary removal of up
to 10 school days is considered a removal from placement under section
615(k)(1)(B) (``[s]chool personnel under this subsection may remove a
child with a disability who violates a code of student conduct from
their current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than
10 school days (to the extent such alternatives are applied to children
without disabilities)''), while a disciplinary removal from placement
that exceeds 10 school days is considered a change in placement under
section 615(k)(1)(C).
The Department is the agency charged with administering IDEA and
has the authority under IDEA section 607(a) (20 U.S.C. 1406(a)) to
issue regulations to ensure compliance with the specific requirements
of IDEA. Therefore, the Department has the authority to resolve the
statutory ambiguity and incorporate into the regulations its long-
standing interpretation, which is and has been that the required
remedies in IDEA section 618(d)(2) apply when there is significant
disproportionality in identification, placement, or any type of
disciplinary removal from placement. (See, 71 FR 46540, 46738 (August
14, 2006); OSEP Memorandum 07-09, April 24, 2007; OSEP Memorandum 08-
09, July 28, 2008; June 3, 2008, letter to Ms. Frances Loose,
Supervisor, Michigan Office of Special Education and Early
Intervention.)
Changes: None.
Comments: Some commenters sought stronger monitoring, technical
assistance, and guidance from the Department on significant
disproportionality in discipline, others wrote in favor of applying
discipline consistently, and one commenter asked the Department to
establish national criteria for disciplining children and consistent
guidelines for documenting and reporting disproportionate disciplinary
actions.
Discussion: While these issues are largely beyond the scope of
these regulations, we appreciate the opportunity to address them. We
agree with the commenters that discipline should be applied
consistently regardless of race or ethnicity. The Department has
recently engaged in extensive outreach, technical assistance, and
guidance activities related to discipline, which can be found online at
www.ed.gov/rethinkdiscipline. However, many aspects of this issue,
including establishing national standards for school discipline, are
beyond the Department's statutory authority in the context of these
regulations.
Changes: None.
Commenters: One commenter recommended a minor wording change in the
regulation, to reduce confusion. This commenter suggested that the
Department rewrite proposed Sec. 300.647(b)(4) so that disciplinary
removals, or proposed Sec. 300.647(b)(4)(iv) through (viii), are
separated from educational placements in proposed Sec.
300.647(b)(4)(i) through (iii), and placed under a heading of
discipline. The commenter argued that ``given that many students with
disabilities are removed from regular class settings, it is important
to make clear that data must be collected on exclusionary removals of
all students with disabilities regardless of the restrictiveness of the
setting in which that are served.''
Discussion: We do not think it necessary, nor appropriate, to
change proposed Sec. 300.647(b)(4) so that disciplinary removals are
separated and placed under a heading of discipline. As written, Sec.
300.647(b)(4) is consistent with the language of IDEA section 618(d)
(20 U.S.C. 1418(d)), which directs States to collect and examine data
to determine whether significant disproportionality based on race and
ethnicity is occurring with respect to ``the incidence, duration and
type of disciplinary actions, including suspensions and expulsion''. As
we explained in the NPRM, we interpret the statute to require States to
apply the statutory remedies if an LEA is identified with significant
disproportionality with respect to disciplinary removals from
placement. Therefore, we decline to change proposed Sec. 300.647(b)(4)
so that disciplinary removals are separated and placed under a heading
of discipline.
Changes: None.
IV. Clarification of the Review and Revision of Policies, Practices,
and Procedures (Sec. 300.646(c))
Review of Policies, Practices, and Procedures--Requirements
Comments: A number of commenters supported proposed Sec.
300.646(c) and our clarifying the requirement for the annual review of
an LEA's policies, practices, and procedures in the case of a
determination of significant disproportionality. One commenter noted
that this review can change the behavior of LEAs that are improperly
identifying children for special education and related services. Other
commenters, however, objected to proposed Sec. 300.646(c), stating
that an annual review was unnecessary and burdensome.
Another commenter objected and suggested that most significant
disproportionality arises as a result of poor practices, a problem not
addressed by a review of policies and procedures. This commenter
recommended that the review of policies and procedures only occur when
an LEA amends its policies or procedures. Another commenter suggested
that no review be required if an LEA's policies, procedures, and
practices are compliant with IDEA, appropriate, and fair, and suggested
that a review occur only once every three years or at the end of a CEIS
``cycle.'' Additional commenters argued that the underlying issues
affecting disproportionality in an LEA do not change as quickly as
annually, and so the annual review, which can be expensive, does not
make sense.
Discussion: As we stated in the NPRM, the requirement to review
policies, practices, and procedures subsequent to a determination of
significant disproportionality would impose no new obligations. Under
IDEA section 618(d) (20 U.S.C. 1418(d)), every year a State is required
to collect and examine data to determine whether significant
disproportionality based on race and ethnicity is occurring the State
and the LEAs of the State with respect to the identification,
placement, and discipline of children with disabilities. Under IDEA
section 618(d)(2)(A) (20 U.S.C. 1418(d)(2)(A)) and final Sec.
300.646(c)(1), the review of policies, practices, and procedures must
be conducted in every year in which an LEA is identified as having
significant disproportionality. As the review and determinations occur
annually, each year an LEA is identified as having significant
disproportionality represents a separate determination and therefore
triggers the requirements of IDEA section 618(d)(2). As such, the
[[Page 92444]]
requirements of final Sec. 300.646(c)(1) are consistent with the
statute and the Department does not have the authority to reduce the
frequency of the review or change the conditions under which it is
required by statute.
We understand and appreciate the complexity of the many social and
societal factors that contribute to disproportionality. Nonetheless,
under IDEA section 618(d)(2) (20 U.S.C. 1418(d)(2)), the review of
policies, procedures, and practices must occur in every year in which
an LEA is identified with significant disproportionality.
Changes: None.
Comments: A number of commenters suggested that the Department
emphasize that, under proposed Sec. 300.646(c)(1), an annual review of
an LEA's policies, practices, and procedures in the case of a
determination of significant disproportionality should include making
certain that the LEA adheres to child find procedures; conducting
robust and timely screenings and assessments, manifestation
determinations, and functional behavioral assessments; and developing
appropriate IEPs and behavioral intervention Plans.
Another commenter suggested that the review should include a review
of any disciplinary practices that disrupt a child's placement, even if
the disruption does not amount to a change in placement, such as a
suspension for fewer than 10 days.
Discussion: We appreciate the commenters' suggestions regarding the
scope of review required whenever a LEA reviews its policies,
practices, and procedures subsequent to a determination of significant
disproportionality. Under IDEA section 618(d)(2)(A) (20 U.S.C.
1418(d)(2)(A)) the State must provide for the review, and if
appropriate, revision of policies, procedures, and practices used in
the area in which an LEA is identified with significant
disproportionality (identification, placement or disciplinary removals)
to ensure they comply with the requirements of IDEA.
For example, in an LEA identified with significant
disproportionality with respect to identification, the State must
provide for the review of policies, practices, and procedures used in
identification. This should include a review of child find and
evaluation policies, practices, and procedures to ensure they comply
with IDEA. Consider that LEA Y has a risk ratio for identification of
white students as students with autism that exceeds the State-defined
risk ratio threshold. As a result, the State identifies LEA Y as having
significant disproportionality and provides for a review of the LEA's
policies, procedures, and practices as required by IDEA section
618(d)(2)(A). This review results in the LEA identifying that it has a
long-standing practice of requiring students to have a medical
diagnosis of autism in order to receive special education services as a
child with autism. However, minority students in LEA Y were much less
likely to be able to obtain such a diagnosis for a number of reasons,
including a lack of consistent care and early screening and referral
conducted by health professionals. Given that LEAs are not allowed,
under the IDEA, to set eligibility criteria for special education and
related services absent a State-wide requirement or criteria that is
consistent with the IDEA (i.e., the child's parent does not incur a
cost for the medical diagnosis and the requirement does not result in a
delay in the special education and related services that are required
for a child to receive a free appropriate public education) and the
fact that the State where LEA Y is located does not require a medical
diagnosis for autism, the LEA's practice is inconsistent with IDEA.
In this instance, the overrepresentation that resulted in the LEA
being identified with significant disproportionality in the
identification of white children as children with autism is due to
under-identification of minority children, as a result of a district
practice that does not comply with the requirements of the IDEA and a
failure of the LEA to appropriately screen children and help them
secure diagnostic testing. To address the significant
disproportionality, the LEA must eliminate or revise its practice of
requiring students to have a medical diagnosis of autism in order to
receive special education services. In addition, the LEA could address
the impact of that criteria by using funds reserved for comprehensive
CEIS to increase developmental screenings.
Similarly, for an LEA identified with significant
disproportionality with respect to discipline, the State must provide
for the review of policies, practices, and procedures used in the
discipline of children with disabilities. This should include a review
of the LEA's polices, practices, and procedures related to
manifestation determinations, functional behavioral assessments, or
behavioral intervention plans or school-wide discipline rules to ensure
they comply with IDEA.
Changes: None.
Guidance
Comments: A number of commenters, remarking upon the complexity of
the various underlying social and societal causes that may contribute
to significant disproportionality and the limited ability of schools to
provide a remedy through a review of its policies, practices and
procedures, asked for additional oversight and guidance from the
Department. Some sought evidence-based practices that address economic,
cultural, and linguistic barriers to instruction. Others invited the
Department to consult with the States to find alternative means of
addressing the causes of significant disproportionality.
Discussion: Under IDEA section 618(d)(2)(A) (20 U.S.C.
1418(d)(2)(A), when States make a determination of significant
disproportionality, they must provide for the review and, if
appropriate, revision of the policies, procedures, and practices used
in the identification, placement or discipline of children with
disabilities. The purpose of the review is to determine if the
policies, practices, and procedures comply with the requirements of
IDEA. The review is statutorily required by IDEA section 618(d)(2) as a
consequence of a determination of significant disproportionality in an
LEA.
The Department understands that not all factors contributing to a
determination of significant disproportionality can be remedied through
a review of policies, practices, and procedures. However, when aligned
with the other remedies required in final Sec. 300.646(c) and (d), we
believe that the review of policies, practices and procedures can be a
valuable tool to LEAs when addressing significant disproportionality.
IDEA does not prohibit States from using remedies, other than those
required in Sec. 300.646(c) and (d), to address significant
disproportionality in conjunction with those required in Sec. 300.646.
That said, as we evaluate additional information and research in
the future, we will consider whether there is further guidance or
technical assistance we can provide that will make evidence-based
practices available.
Changes: None.
Clarifications
Comment: One commenter asked whether, under proposed Sec.
300.646(c)(2), an LEA must publicly report on the revision of policies,
practices, and procedures if it concludes after review of its policies,
practices, and procedures that no change is necessary.
Discussion: No, an LEA is not required to publicly report if no
[[Page 92445]]
revisions to its policies, practices, or procedures are necessary.
Changes: None.
Comments: One commenter supported the Department's clarification,
in proposed Sec. 300.646(c)(2), that LEAs must safeguard children's
individual confidential information when publicly posting any revisions
to policies, practices, and procedures.
Discussion: We appreciate the commenter's support for incorporating
into the regulation that LEAs must safeguard children's individual
confidential information when publicly posting any revisions to their
policies, practices, or procedures.
Changes: None.
Comment: Another commenter requested that the Department clarify
whether and how the annual review of policies, practices, and
procedures are not duplicative of a one-year verification process for
correcting noncompliance as required by Sec. 300.600(e) and explained
in OSEP Memorandum 09-02. The commenter stated that, as correction of
noncompliance in larger LEAs generally takes up to one year, a
requirement that LEAs repeat review of policies practices, and
procedures the following year is duplicative.
Discussion: A State's identification of significant
disproportionality within an LEA is not the same as a finding of
noncompliance. An LEA identified with significant disproportionality is
not necessarily out of compliance with IDEA; rather, the significant
disproportionality is an indication that the policies, practices, and
procedures in the LEA warrant further attention. If an LEA is
identified with significant disproportionality, the State must provide
for review and, if appropriate, revision of policies, practices, and
procedures used in identification or placement in particular education
settings, including disciplinary removals, to ensure they comply with
the requirements of IDEA. If the State identifies noncompliance with a
requirement of IDEA through this review, the State must ensure, in
accordance with Sec. 300.600(e), that the noncompliance is corrected
as soon as possible, and in no case later than one year after the
State's identification of the noncompliance. As explained in OSEP
Memorandum 09-02 when verifying the correction of identified
noncompliance, the State must ensure that the LEA has corrected each
individual case of noncompliance, unless the child is no longer within
the jurisdiction of the LEA and the State determines that the LEA is
correctly implementing the specific regulatory requirement(s) based on
a review of updated data such as data subsequently collected through
on-site monitoring or a State data system. If in a subsequent year, the
LEA continues to be identified with significant disproportionality, the
State must continue to provide for a review of policies, practices, and
procedures to determine if there is any new or continuing non-
compliance with IDEA. The fact that an LEA was previously identified
with noncompliance through the review process does not relieve the
State of its responsibility to conduct an annual review of the LEA's
policies, practices, and procedures. We note that while IDEA section
618(d)(2)(A) requires that States provide for the review of policies,
practices, and procedures, the State may select another entity, such as
the LEA, to actually conduct the review.
Changes: None.
V. Expanding the Scope of Comprehensive Coordinated Early Intervening
Services (Sec. 300.646(d))
Use of Comprehensive CEIS for Specific Populations
Comments: Most commenters supported proposed Sec. 300.646(d)(2),
which would expand the population of children who can be served with
IDEA Part B funds reserved for comprehensive CEIS to include children
with disabilities and children ages three through five, with and
without disabilities. One commenter provided a legal argument
supporting the Department's interpretation of IDEA to allow the use of
comprehensive CEIS to serve children with disabilities and children
ages three through five. The commenter argued that canons of statutory
construction support the Department's position. Further, the commenter
added that the proposed flexibility ensures that an LEA can address the
significant disproportionality in ways appropriate to the context. The
commenter also stated that the flexibility to serve children with
disabilities recognizes that these children have the potential to
develop behavioral needs if their disability is misidentified, if their
placement is inappropriate, or if they receive inappropriate behavioral
assessments and plans. Another commenter noted that the expansion of
comprehensive CEIS removes a source of inequity in previous
interpretations, in which the very children treated disproportionately
could not be the beneficiaries of comprehensive CEIS. One commenter
argued that providing comprehensive CEIS only to non-disabled children
is unlikely to address significant disproportionality in the discipline
of children with disabilities.
Most commenters supported the use of funds reserved for
comprehensive CEIS for children with disabilities and preschool
children ages three through five, with and without disabilities. Some
of these commenters elaborated on their reasons for supporting Sec.
300.646(d)(2), noting that research on early intervention shows that it
improves outcomes and reduces disproportionality. One noted that the
existing requirement that comprehensive CEIS funds be used only for
non-disabled children was a disincentive to change inappropriate
practices in special education. Another commenter noted that the change
would make clear that children with disabilities can participate in
whole-school programs meant to address disproportionality, and a few
stated that the change would be consistent with the September 14, 2015,
statement by Federal agencies on including children with disabilities
in early childhood programs. U.S. Department of Education & U.S.
Department of Health and Human Services, 2015.
Discussion: We appreciate the commenters' support for the proposal,
and agree that the expansion of comprehensive CEIS to include children
with disabilities and children ages three through five, with and
without disabilities, is consistent with IDEA section 618(d) (20 U.S.C.
1418(d)) and will help LEAs to better address significant
disproportionality.
Changes: None.
Comments: Several commenters argued that the Department lacks the
authority to expand the population that can be served with IDEA Part B
funds reserved for comprehensive CEIS under IDEA. In particular, they
argued that proposed Sec. 300.646(d)(2) is inconsistent with IDEA
because IDEA section 613(f) (20 U.S.C. 1413(f)) allows LEAs to
voluntarily reserve IDEA Part B funds to provide coordinated early
intervening services only to children in kindergarten through grade 12
who have not been identified as needing special education and related
services.
These commenters also noted that proposed Sec. 300.646(d)(2)
represents a change in the Department's position. The commenters
pointed out that OSEP Memorandum 08-09, dated July 28, 2008, stated
that IDEA section 613(f) permits ``IDEA funds for CEIS for children in
kindergarten through grade 12 . . . who are not currently identified as
needing special education or related services . . . .'' The commenters
also pointed out that the Department's
[[Page 92446]]
preamble to the 2006 IDEA Part B regulations, in discussing current
Sec. 300.226, stated that early intervening services ``are for
children who are not currently identified as needing special education
or related services.'' 71 FR 46626 (August 14, 2006).
Discussion: We disagree that the Department lacks the authority to
permit LEAs identified with significant disproportionality to use IDEA
Part B funds reserved for comprehensive CEIS to serve children with
disabilities and preschool children ages three through five, with and
without disabilities. We acknowledged in the NPRM that the Department
has previously interpreted the terms ``CEIS'' and ``comprehensive
CEIS'' to apply to children in kindergarten through grade 12 who are
not currently identified as needing special education and related
services but who need additional academic and behavioral support to
succeed in a general education environment. (81 FR 10979)
The Department proposed to change its interpretation in a proper
and legally permissible manner. Under IDEA section 607(a) (20 U.S.C.
1406(a)), the Secretary has the authority to issue regulations to the
extent regulations are necessary to ensure compliance with the
requirements of Part B of IDEA. Based on information in the 2013 GAO
report, comments received in response to the June 2014 request for
information expressing concern about the effectiveness of comprehensive
CEIS, and the Department's experience over the last twelve years in
implementing IDEA section 618(d) (20 U.S.C. 1418(d)), the Department
believes that these changes are necessary to ensure that the statutory
remedies are implemented in a manner that meaningfully addresses any
significant disproportionality identified.
Our proposal to change our interpretation was based on careful
review of the statutory language and legislative history of the
significant disproportionality provision in IDEA section 618(d) (20
U.S.C. 1418(d)).
Under IDEA section 613(f) (20 U.S.C. 1413(f)), an LEA may
voluntarily reserve up to 15 percent of its IDEA Part B funds to
provide coordinated early intervening services to students in
kindergarten through grade 12 who have not been identified as needing
special education or related services, but who need additional academic
and behavioral support to succeed in a general education environment
(K-12 children). IDEA section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B))
provides that in a case of a determination of significant
disproportionality, an LEA must reserve the maximum amount of funds
under section 613(f) (15 percent of its IDEA Part B funds) to provide
``comprehensive'' CEIS to serve children in the LEA, particularly
children in those groups that were significantly overidentified.
Congress did not define ``comprehensive,'' nor did it explain how
``comprehensive CEIS'' in IDEA section 618(d) differs from the ``CEIS''
in IDEA section 613(f). Congress' inclusion of the term
``comprehensive'' in one provision and not the other creates an
ambiguity. Therefore, the Department has the authority to interpret the
term ``comprehensive CEIS.''
We believe that this interpretation is consistent with the
legislative history of this provision, which indicates that in prior
versions of the bills, the House used the phrase ``comprehensive
coordinated prereferral support services'' in section 618(d) and
section 613(f) and that the Senate version did not include any
provision for using section 613(f) funds for CEIS in section
618(d)(2)(B) but did use the phrase ``coordinated, early intervening
educational services'' in section 613(f). In the final conference bill
and enacted statute, however, without a clear explanation, Congress
used ``comprehensive'' to describe CEIS only in section 618(d)(2)(B)--
omitting the term from section 613(f).
We also believe that our interpretation, under final Sec.
300.646(d), is reasonable given the purpose of the statutory remedies
in IDEA section 618(d)(2) (20 U.S.C. 1418(d)(2)). Other commenters,
both to the NPRM and to the June 2014 request for information, agreed
and noted that States currently cannot use IDEA Part B funds reserved
for comprehensive CEIS to provide services to children with
disabilities, even if they were in the groups with significant
disproportionality in identification, placement, and disciplinary
removal. In other words, it is difficult for the very children whose
significant disproportionality gives rise to the requirement to provide
comprehensive CEIS to directly benefit from comprehensive CEIS.
It is our intent that Sec. 300.646(d) improve comprehensive CEIS
as a remedy for significant disproportionality. For example, as we
noted in the NPRM, providing comprehensive CEIS to preschool children
may help LEAs to address significant disproportionality in
identification by allowing funds reserved for comprehensive CEIS to be
used to provide more timely supports and services to younger children.
For example, an LEA identified with significant disproportionality
might use IDEA Part B funds reserved for comprehensive CEIS to
implement universal screening to better identify and support children
with developmental delays before they enter kindergarten. These
activities will also assist in ensuring that children with disabilities
in the LEA are appropriately identified.
Further, as we noted in the NPRM, providing comprehensive CEIS to
children with disabilities is more likely to address significant
disproportionality in placement and discipline by allowing LEAs to
directly improve the supplementary aids and services and positive
behavioral interventions and supports provided to children with
disabilities. We believe that final Sec. 300.646(d)(2) is, therefore,
consistent with the purpose of the statutory remedies, which is to
reduce significant disproportionality.
Section 300.646(d)(2) does not address voluntary CEIS, implemented
under IDEA section 613(f) (20 U.S.C. 1413(f)) and IDEA Part B funds an
LEA voluntarily reserves for CEIS must be used to serve students in
kindergarten through grade 12 who have not been identified as needing
special education or related services, but who need additional academic
and behavioral support to succeed in a general education environment.
Changes: None.
Comments: Some commenters did not support the expansion of
comprehensive CEIS to preschool children with or without disabilities.
Some of these commenters stated that comprehensive CEIS was unproven
and ineffective and that ``more of the same'' does not make for good
public policy. Others took a broader view, stating that
disproportionality in race and ethnicity has many causes beyond the
ability of schools and LEAs to solve, such as poverty, drug abuse,
incarceration, and the disproportionality of adverse childhood
experiences among children of color. Expanding the use of comprehensive
CEIS funds, some of these commenters stated, cannot address these
causes, and, therefore, redirecting IDEA funds to comprehensive CEIS is
unfair to the LEAs and the children who stand to lose the use of, and
services funded by, the money diverted. Some commenters noted that,
generally, comprehensive CEIS would negatively impact LEAs, especially
small LEAs, by adversely impacting their ability to provide for the
needs of children with disabilities.
Discussion: We understand that disproportionality is deeply
complicated and that many social and societal causes may contribute to
racial
[[Page 92447]]
disparities in special education. Nonetheless, the Department has an
obligation to work within the statutory framework in IDEA and with the
tools it provides.
The Department recognizes that providing comprehensive CEIS will
not, by itself, eliminate all causes of racial and ethnic
disproportionality and that LEAs cannot reach all of the causes of
disproportionality. There are, however, causes of significant
disproportionality that LEAs can address and effects that LEAs can
mitigate. It is our intention that, in implementing final Sec.
300.647(d)(1)(ii), an LEA will identify and address the factors that
contribute to the significant disproportionality by carrying out
activities that LEAs typically conduct, such as providing services and
supports to students or professional development to staff.
We do not regard using comprehensive CEIS funds to identify and
address factors contributing to the significant disproportionality and
allowing LEAs to provide comprehensive CEIS to preschool children and
children with disabilities as ``more of the same.'' Previously, IDEA's
implementing regulations did not require LEAs to identify and address
factors contributing to the significant disproportionality as part of
their implementation of comprehensive CEIS. In addition, we believe
allowing LEAs to use funds reserved for comprehensive CEIS to serve
children with disabilities is more likely to address significant
disproportionality in placement and discipline. For example, as one
commenter suggested, if LEAs can use IDEA Part B funds reserved for
comprehensive CEIS to implement a schoolwide program to address
problems in discipline and serve both children with and without
disabilities, then significant disproportionality in discipline may be
reduced or eliminated. Similarly, using funds reserved for
comprehensive CEIS to serve preschool children, where their needs can
be assessed and addressed early, is likely to address significant
disproportionality in the identification of children with disabilities.
Based on its identification of the factors contributing to the
significant disproportionality, an LEA may use IDEA Part B funds
reserved for comprehensive CEIS to provide a targeted array of services
and supports to address those factors, including professional
development and educational and behavioral evaluations, services and
supports in both the general and special education population. Section
300.646(d) underscores the importance of allowing an LEA to determine
which factors contribute to a determination of significant
disproportionality and how to effectively target IDEA Part B funds
reserved for comprehensive CEIS to address those factors.
It is important to note that while States are required to include
preschool children in the State's determination of significant
disproportionality related to discipline and to identification
(beginning July 1, 2020), final Sec. 300.646(d)(2) allows, but does
not require, LEAs to provide comprehensive CEIS to preschool children,
with or without disabilities (unless, under Sec. 300.646(d)(1)(ii), a
State determines that there is significant disproportionality in an
LEA, and the LEA determines that providing comprehensive CEIS to
preschool children is necessary to address the factors contributing to
the disproportionality).
Change: None.
Comments: One commenter recommended that the Department revise
proposed Sec. 300.646(d)(3) to limit the use of comprehensive CEIS for
children with disabilities to an established proportion, set by the
Department and based on an evidence-based determination of the relative
advantages of (1) early intervention to prevent disparities in
disability identification and (2) subsequent interventions to address
disparities in placement and disciplinary removal.
Discussion: While we agree with the commenter that apportioning
funds reserved for comprehensive CEIS based, in part, on the
expectation that specific uses will lead to reducing significant
disproportionality in the area or areas in which the LEA is identified,
we do not believe it would be appropriate to set a single, national
percentage of funds to be dedicated to each allowable activity under
comprehensive CEIS. Those decisions are best made by LEAs based on
determining the best ways to address the specific issues that face each
LEA, in accordance with final Sec. 300.646(d)(1)(ii). Therefore, we
decline to make this change.
Further, under final Sec. 300.646(d)(3), an LEA may not limit the
provision of comprehensive CEIS to children with disabilities.
Therefore, an LEA must use some of the funds reserved for comprehensive
CEIS to serve children who are not currently identified as needing
special education and related services, but who need additional
academic and behavioral support to succeed in a general education
environment. However, we decline to limit the amount of comprehensive
CEIS funds an LEA may use to serve children with disabilities because
we want to give each LEA the flexibility to determine the amount of
funds it will use for children with disabilities based on its analysis
of the factors contributing to significant disproportionality in in the
LEA.
Change: None.
Comments: Some commenters, stating both that IDEA is underfunded
and that there is a possibility of additional reservations of IDEA Part
B money for comprehensive CEIS, argued that IDEA funds should be used
primarily or exclusively for children with disabilities, not children
without disabilities. One of the commenters suggested an amendment to
the language at Sec. 300.646(d)(3) which prohibits LEAs from providing
comprehensive CEIS solely to children with disabilities.
Discussion: We understand these comments to refer to proposed Sec.
300.646(d)(3), which prohibits LEAs from providing comprehensive CEIS
solely to children with disabilities. As we explained in the NPRM at 81
FR 10986, recognizing the statutory emphasis on providing early
behavioral and academic supports before a child is identified, we
believe allowing LEAs to provide comprehensive CEIS only to children
with disabilities works directly against the aims and intentions of
IDEA. For example, limiting comprehensive CEIS solely to children with
disabilities would prohibit an LEA from providing early behavioral and
academic supports and services to children before they are identified
as having a disability, which is one way to reduce significant
disproportionality in the identification of children as children with
disabilities. Limiting comprehensive CEIS solely to children with
disabilities would prohibit an LEA from using IDEA Part B funds
reserved for comprehensive CEIS to implement a schoolwide program to
address problems in discipline, which is one way to reduce significant
disproportionality in discipline. Therefore, the Department declines to
revise Sec. 300.646(d)(3) to allow LEAs to provide comprehensive CEIS
solely to children with disabilities.
Under final Sec. 300.646(d)(1)(ii), LEAs would have to use IDEA
Part B funds reserved for comprehensive CEIS to identify and address
the factors contributing to the significant disproportionality
identified by the State. Nothing in the regulations prohibits an LEA
from providing comprehensive CEIS primarily, but not exclusively, to
children with disabilities.
Changes: None.
[[Page 92448]]
Comments: One commenter noted that the prohibition in proposed
Sec. 300.646(d)(3) on using comprehensive CEIS funds solely for
children with disabilities does not make sense in the context of
placement in a restrictive educational setting because only children
with disabilities who have IEPs are subject to this kind of placement.
Discussion: We agree that final Sec. 300.646(d)(3) prohibits an
LEA identified with significant disproportionality in placement from
using comprehensive CEIS funds solely to provide comprehensive CEIS to
children with disabilities. However, we note that, in many instances,
circumstances in the LEA that may give rise to disproportionate
placement in segregated settings may have an impact on children with
and without disabilities. We encourage LEAs that are identified with
significant disproportionality to closely examine their policies,
practices, and procedures to identify the root causes of their
disproportionality and target their use of funds reserved for
comprehensive CEIS to address those causes. There are appropriate ways
that an LEA identified with significant disproportionality related to
placement may use IDEA Part B funds reserved for comprehensive CEIS for
children without disabilities. For example, an LEA may provide
professional development to regular education teachers on the supports
that they can provide to enable a child with a disability to be
educated in the regular class and participate in extracurricular and
other nonacademic activities with nondisabled children. We understand
some LEAs may find that there are a number of children without
disabilities who are impacted by the same root cause in other ways and
could also benefit from the funding.
Changes: None.
Comments: One commenter objected on practical grounds to proposed
Sec. 300.646(d)(2) and the use of comprehensive CEIS funds for
preschool children. The commenter indicated that, in some States, the
range of possible placements for preschool children with disabilities
includes settings where the State does not have general supervision
authority to regulate discipline procedures or practices or require
data reporting.
Discussion: We appreciate the commenter's concern and note that
under final Sec. 300.646(d)(2), an LEA may, but is not required to,
use funds reserved for comprehensive CEIS for children ages three
through five.
Separately, we note that under IDEA section 612(a), a State must
make FAPE available to all eligible children with disabilities residing
in the State, including children with disabilities aged three through
five, and in some States, two year old children who will turn three
during the school year. Thus, all of the requirements in Part B of IDEA
apply equally to all preschool children with disabilities. The SEA must
ensure that a child with a disability, including a preschool child, who
is placed in or referred to a private school or facility by a public
agency is provided special education and related services in conformity
with his or her IEP and at no cost to the parents; is provided an
education that meets the standards that apply to education provided by
the SEA and LEAs, including the requirements of IDEA; and has all of
the rights of a child with a disability who is served by a public
agency. (See, 34 CFR 300.146.)
Changes: None.
Funding Comprehensive CEIS
Comment: A number of commenters indicated that IDEA has never been
fully funded, and a few of these commenters stated that they could not
support proposed Sec. 300.646(d) until Federal funding under Part B of
IDEA is increased. Commenters stated that, as current IDEA funding only
covers a fraction of special education's high total cost, some LEAs
choose to devote the full amount of their Federal dollars to special
education.
Discussion: The Department understands the concern about reserving
IDEA Part B funds to provide comprehensive CEIS when IDEA is not funded
at the maximum level allowed under IDEA section 611(a)(2)(B). However,
under IDEA section 618(d) (20 U.S.C. 1418(d)), an LEA found to have
significant disproportionality based on race or ethnicity must reserve
15 percent of its IDEA B funds for comprehensive CEIS while continuing
to properly identify children in need of special education and related
services and to provide them with a FAPE in accordance with the
requirements of IDEA and its implementing regulations. Under IDEA
sections 612(a)(11) and 616(a)(1)(C) (20 U.S.C. 1412(a)(11) and 1416
(a)(1)(C)), the State must conduct monitoring activities to ensure that
all LEAs meet these statutory requirements.
Changes: None.
Comment: Some commenters opposed proposed Sec. 300.646(d),
concerned that it would result in LEAs reserving more money for
comprehensive CEIS. This, these commenters stated, may or may not
address significant disproportionality but would create hardships for
children with disabilities and their teachers and staff, such as
reduced services and the inability to hire special education teachers
and other support staff. Other commenters noted that some LEAs already
struggle to support the needs of children with disabilities. One
commenter noted that any reduction in funding for special education
services would be harmful, due to increases in the number of children
identified with autism.
Discussion: The Department appreciates the commenters' concerns and
recognizes that LEAs function within challenging funding environments.
However, regardless of IDEA funding levels, States must comply with all
IDEA requirements, including the requirements related to significant
disproportionality.
Under IDEA section 618(d) (20 U.S.C. 1418(d)), an LEA found to have
significant disproportionality based on race or ethnicity must reserve
15 percent of its IDEA B funds for comprehensive CEIS. Under Sec.
300.646(d)(1)(ii), in implementing comprehensive CEIS, the LEA must
identify and address the factors contributing to the significant
disproportionality. We acknowledge that the provision of comprehensive
CEIS has the potential to benefit both special education and general
education. However, we emphasize that the LEA has the flexibility to
determine, based on its identification of factors contributing to the
significant disproportionality identified in the LEA, which activities
will be funded using IDEA Part B funds reserved for comprehensive CEIS.
Changes: None.
Comment: Some commenters noted that ESEA, rather than IDEA, is the
most appropriate mechanism for providing children not yet identified
with disabilities with support and that IDEA is not the appropriate
vehicle for addressing significant disproportionality. These commenters
also stated that other Federal funds, such as those made available
through title I of the ESEA, as amended, should also be used to provide
comprehensive CEIS.
Discussion: The Department supports the flexible use of Federal
funds, particularly in the area of school-wide reforms, as long as the
Federal funds are used in accordance with applicable requirements. To
that end, we issued guidance on maximizing flexibility in the
administration of Federal grants. OESE Letter to State Directors
(September 13, 2013).
Further, we note that section 613(f)(5) of IDEA states that funds
an LEA voluntarily reserves for CEIS may be used to carry out services
aligned with activities funded by, and carried out
[[Page 92449]]
under, ESEA if those funds are used to supplement, and not supplant,
funds made available under the ESEA for those activities. Thus, if IDEA
funds an LEA voluntary reserves for CEIS, or is required to reserve for
comprehensive CEIS, do not supplant ESEA funds, they may be used to
supplement school improvement activities conducted under other
programs, such as title I, that are being implemented in an LEA. See,
IDEA section 613(f)(5) (20 U.S.C. 1413(f)(5)); OSEP Memorandum 08-09
(July 28, 2008).
That said, however, the Department does not have the authority to
require the reservation of funds under the ESEA pursuant to a
determination of significant disproportionality under IDEA unless
specified in law.
Changes: None.
Comments: A number of commenters objected to proposed Sec.
300.646(d), which would require an LEA, upon a determination of
significant disproportionality by the State, to reserve 15 percent of
its IDEA Part B funds, the ``maximum amount of funds under section
613(f),'' for comprehensive CEIS. These commenters argued that the
requirement is rigid and unnecessarily redirects money from children
with disabilities. The commenters suggested a variety of alternatives
to requiring reservation of IDEA Part B funds to address significant
disproportionality.
Some commenters suggested limiting the requirement for reserving 15
percent of IDEA Part B funds to only those circumstances in which a
State finds an LEA uses discriminatory policies, practices, and
procedures in implementing IDEA. Some commenters suggested taking the
15 percent from unspecified administrative costs or sources other than
IDEA Part B funds. Others suggested that LEAs found with significant
disproportionality be required to create remediation plans that may
include reserving IDEA Part B funds for comprehensive CEIS. Still
others suggested allowing LEAs to remedy significant disproportionality
using whatever percentage of IDEA funds (up to 15 percent) is
appropriate to the circumstances and the interventions needed. One
commenter suggested that the Department provide an exemption from the
15 percent mandate for LEAs that already remedy significant
disproportionality effectively. Another encouraged the Department to
approach the regulation by providing supports, rather than
administering punitive action, such as providing additional funds and
support to LEAs with disproportionate disciplinary actions and
identification methods, since the root cause of disproportionality is
an under-informed or under-resourced work force. A few commenters
suggested eliminating the 15 percent mandate altogether or to allow
Congress to address the issue in the next reauthorization of IDEA.
Discussion: We appreciate both the range of ideas suggested and the
difficulties that reserving 15 percent of IDEA Part B funds may cause
LEAs. Nevertheless, the language of IDEA section 618(d)(2)(B) is
explicit: ``the State shall . . . require'' any LEA identified with
significant disproportionality ``to reserve the maximum amount of funds
under section 613(f) to provide'' comprehensive CEIS to serve children
in the LEA. Under section 613(f)(1), the maximum amount that can be
reserved is 15 percent of the amount of IDEA Part B funds the LEA
receives for any fiscal year. Therefore, the Department lacks the
authority either to vary the amount that must be reserved or to
eliminate the requirement altogether.
Further, each LEA, in implementing comprehensive CEIS, may carry
out activities that include professional development, behavioral
evaluations, hiring reading or math specialists or providing other
supports and services that the LEA has determined will address the
factors contributing to the significant disproportionality. In
addition, under certain conditions, comprehensive CEIS funds may be
used in combination with funds available under title I to supplement
school improvement activities that are being implemented in the LEA to
address an ``under-informed and under-resourced'' work force, as long
as IDEA funds and ESEA funds are used in accordance with applicable
program requirements. See, OESE Letter to State Directors (September
13, 2013).
Changes: None.
Comments: A few commenters asked whether funds for providing
comprehensive CEIS to preschool children under proposed Sec.
300.646(d)(2) would have to come from funds awarded to an LEA under
IDEA Part B section 611, IDEA section 619, or both.
Discussion: Neither the final regulations nor IDEA specify the
specific source of funding (section 611 or section 619) from which an
LEA is required to reserve funds if it is determined that said LEA has
significant disproportionality. While the amount of the 15 percent
reservation must be calculated on the basis of both the LEA's section
611 and 619 allocations, LEAs retain full flexibility regarding whether
they actually take the reservation from section 611 funds, section 619
funds, or both. LEAs also retain this flexibility regardless of the age
of the children receiving comprehensive CEIS.
Changes: None.
Comment: None.
Discussion: When an LEA is identified as having significant
disproportionality, it is required to reserve funds for the provision
of comprehensive CEIS. This requirement is, clearly, an LEA-level
requirement. Each LEA is required to maintain documentation that 15
percent of its IDEA Part B funds were reserved for that purpose and
that those funds were used to support allowable activities under Sec.
300.646(d). However, an LEA does have flexibility in how these funds
are allocated within the LEA how these funds are expended. Nothing in
these regulations prevents an LEA from distributing funds reserved for
comprehensive CEIS to its schools to carry out activities authorized
under final Sec. 300.646(d), nor are there requirements for the
process an LEA must use when deciding how to allocate those funds if
they choose to do so. As such, if an LEA determines that it is best
able to address the root cause of the identified significant
disproportionality by providing a portion of its reserved funds to a
particular subset of schools to support comprehensive CEIS activities,
it is permitted to do so under these regulations, so long as it ensures
that those funds are expended in accordance with final Sec.
300.646(d). Under Sec. 300.202(a)(1), an LEA must expend IDEA Part B
funds in accordance with the applicable provisions of Part B. Under 34
CFR 76.731, an LEA must keep records to show its compliance with
program requirements. Therefore, an LEA must maintain documentation to
demonstrate that it expended IDEA Part B funds reserved for
comprehensive CEIS in accordance with final Sec. 300.646(d).
In a growing number of LEAs nationwide, schools are implementing
the flexibilities provided under ESEA section 1114(b) to consolidate
Federal funds in a schoolwide program. Section 300.206(a) makes clear
that IDEA Part B funds may be consolidated in such a school and
instructs States and LEAs how to calculate the amount of funds that may
be used for this purpose. Further, Sec. 300.206(b)(1) and (2) provide
that these funds must be considered Federal Part B funds for the
purposes of calculating LEA MOE and excess cost under Sec.
300.202(a)(2) and (3), and that these funds may be used without regard
to the requirements of Sec. 300.202(a)(1). Regardless, the LEA is
still responsible for meeting all other requirements of
[[Page 92450]]
IDEA Part B, including ensuring that children with disabilities in
schoolwide program schools ``[r]eceive services in accordance with a
properly developed IEP [individualized education program]'' and ``[a]re
afforded all of the rights and services guaranteed to children with
disabilities under the Act [IDEA].'' See, Sec. 300.206(c)(1) and (2).
LEAs are not prohibited from providing funds reserved for
comprehensive CEIS to schools operating a schoolwide program. Further,
the requirement to reserve funds for comprehensive CEIS does not
override the flexibilities described in Sec. 300.206. Instead, LEAs
are only required to ensure that any school operating a schoolwide
program to which it provides funds for comprehensive CEIS is able to
appropriately document that at least the amount of funds provided to
the school for that purpose were so expended. For example, if an LEA
provides $100 of the funds it has reserved for comprehensive CEIS to a
school implementing a schoolwide program, that school is not required
to separately track and account for those funds if it is otherwise
consolidating IDEA Part B funds. Instead, the LEA would only need to
ensure that it can document that the school spent at least $100 on
allowable activities under comprehensive CEIS. It is not required to
demonstrate that the school expended $100 of IDEA Part B funds. We
believe that this interpretation of the applicable statutes and
regulations provide maximum flexibility to both schools and LEAs in
implementing both title I schoolwide programs and comprehensive CEIS.
Changes: None.
Implications for IEPs
Comments: Many commenters responded to the Department's Directed
Question #12, which sought comments on whether additional restrictions,
beyond the requirement in Sec. 300.646(d) to use comprehensive CEIS to
identify and address the factors contributing to significant
disproportionality, on the use of comprehensive CEIS funds, are
appropriate for children who are already receiving services under Part
B of IDEA. Most commenters objected to any restriction of how
comprehensive CEIS funds should be used for children already receiving
services under Part B of IDEA. Instead, these commenters discussed the
many supports and services where comprehensive CEIS could be used to
enhance student progress. For example, some suggested that the funds be
used to provide functional behavioral assessments (FBAs) and behavioral
intervention plans (BIPs). Additionally, the commenters noted that
comprehensive CEIS funds could be used to train key personnel on how to
develop effective FBAs and BIPS or other instructional supports. Some
of these commenters stated that local officials are best positioned to
say how comprehensive CEIS funds should be used and that they should
not be limited in their choices in how to address significant
disproportionality.
Discussion: We appreciate the concerns expressed by the commenters
and note that the services and activities they mention--training and
professional development on effective FBAs and BIPs, a review of
behavioral intervention and supports included in IEPs, positive
behavioral interventions and supports, multi-tiered systems of
supports--are all permitted under Sec. 300.646(d)(1)(i) (``An LEA may
carry out activities that include professional development and
educational and behavioral evaluations, services, and supports . .
.''). These services and activities are also permitted under Sec.
300.646(d)(1)(ii) to the extent that they address factors that the LEA
has identified as contributing to the significant disproportionality
identified in the LEA. We agree that local officials should have the
flexibility and discretion to decide how comprehensive CEIS funds are
best allocated and spent.
Under proposed Sec. 300.646(d)(1)(ii), the LEA must use
comprehensive CEIS funds to address factors contributing to the
significant disproportionality identified by the State. These factors
may include, as enumerated in proposed Sec. 300.646(d)(1)(ii), a lack
of access to scientifically based instruction and economic, cultural,
or linguistic barriers to appropriate identification or placement in
particular educational settings, including disciplinary removals. This
requirement is fundamental to the use of comprehensive CEIS funds, and
it carries with it a practical limitation: An LEA may use comprehensive
CEIS funds for training and professional development and behavioral
evaluations and supports, such as FBAs, BIPs, and positive behavioral
interventions and supports, but only to the extent that it is doing so
to address the factors identified by the LEA as contributing to the
significant disproportionality identified by the State. Therefore, if
comprehensive CEIS funds are used to provide services that address
factors contributing to the significant disproportionality identified
by the State, then the fact that those services are also identified in
some children's IEPs does not make the services impermissible or the
expenditures improper. Conversely, however, we generally would not
expect that using comprehensive CEIS funds for the purpose of providing
services already identified on a child's IEP would address factors
contributing to the significant disproportionality identified by the
State, as is required by proposed Sec. 300.646(d).
Changes: None.
Comment: One commenter asked for further explanation about how
including children with disabilities within the scope of comprehensive
CEIS under proposed Sec. 300.646(d)(2)(ii) would affect services
provided to these children in accordance with their IEPs. The commenter
stated that, if a child is receiving services under an IEP, then
receiving comprehensive CEIS is ``contradictory.'' In particular, the
commenter asked whether the provisions guaranteeing FAPE to a child
with disabilities takes precedent over provisions governing
comprehensive CEIS, who decides which services a child gets, and
whether proposed Sec. 300.646(d) created a two-tiered system of
services that could treat some children unfairly.
Discussion: We believe that the commenter's concerns conflate the
obligation to provide FAPE to a child with disabilities and the
obligation to reserve 15 percent of IDEA Part B funds upon a finding by
the State of significant disproportionality.
To begin with, it is optional under final Sec. 300.646(d)(2) for
an LEA to use IDEA Part B funds reserved for comprehensive CEIS to
serve children with disabilities. If an LEA chooses to do so, this in
no way affects any child's entitlement to a FAPE.
In implementing comprehensive CEIS, an LEA must identify and
address the factors contributing to the significant disproportionality
identified by the State. As we stated earlier, these services may, but
do not necessarily, overlap with services identified on a child's IEP,
given that we generally would not expect that using funds reserved for
comprehensive CEIS to provide services already identified on a child's
IEP would address factors contributing to the significant
disproportionality identified by the State. The fact that services
provided as comprehensive CEIS may in some cases overlap with services
already identified on a child's IEP does not relieve the LEA of its
responsibility to ensure that all of the special education and related
services and supplementary aids and services identified on a child's
IEP are provided to that child in accordance with his or her IEP. There
is no
[[Page 92451]]
contradiction, no displacement of IEP services by comprehensive CEIS
services, and no ``two-tier'' system created.
To the extent that the commenter is concerned about there being
insufficient Part B funds to fund services to children with
disabilities if 15 percent of an LEA's IDEA Part B funds are reserved
for comprehensive CEIS, we address that issue under Use of
Comprehensive CEIS for Specific Populations elsewhere in this document.
Implications for LEA Maintenance of Effort (MOE)
Comment: A few commenters asked whether extending comprehensive
CEIS to children with disabilities would increase LEA maintenance of
effort (MOE) expenditures under Sec. 300.203. Several commenters
indicated that they did not support these regulations because it could
increase the amount of local, or State and local, funds an LEA would be
required to expend for the education of children with disabilities to
meet the LEA MOE requirement in subsequent years including years in
which an LEA is no longer identified with significant
disproportionality.
For example, one commenter wrote that if an LEA shifts special
education spending from its Part B funds to local funds in order to
meet its obligation to set aside 15 percent of its Part B funds for
comprehensive CEIS, its local MOE expenditure increases. However, when
the LEA is no longer identified with significant disproportionality,
the LEA can't subsequently reduce its local MOE expenditures. Further,
to ensure that LEAs maintain their local expenditures in case of a
year-over-year reduction in IDEA, Part B allocation, some commenters
requested that the Department require that the maximum amount of funds
available for comprehensive CEIS be reduced by the reduction in the
subgrant. Similarly, another commenter noted that, given that IDEA is
underfunded, the regulation would force LEAs to pass tax increases so
that local funds could support the regulation. Other commenters
expressed that, since special education must be provided regardless of
Federal funding, LEAs will be forced to use State and local funds to
backfill 15 percent used for comprehensive CEIS.
Discussion: Using IDEA Part B funds reserved to provide
comprehensive CEIS for children with disabilities may, but does not
necessarily, affect the amount of local, or State and local funds, an
LEA must expend to meet the MOE requirement in Sec. 300.203.
Generally, under Sec. 300.203(b), an LEA may not reduce the amount
of local, or State and local, funds that it spends for the education of
children with disabilities below the amount it spent from the same
source for the preceding fiscal year. The calculation is based only on
local, or State and local--not Federal--funds.
We understand that when an LEA identified with significant
disproportionality is required to use 15 percent of its IDEA Part B
funds for comprehensive CEIS, it should consider the effect that
decreasing the available IDEA Part B funds might have on the amount of
local or State and local funds an LEA must expend to meet the LEA MOE
requirement. As one commenter noted, if under Sec. 300.646(d) an LEA
is required to reserve 15 percent of its IDEA Part B funds for
comprehensive CEIS after a determination of significant
disproportionality, it may choose to use local, or State and local,
funds to provide special education and related services to children
with disabilities to replace IDEA Part B funds used to provide
comprehensive CEIS. If that is the case, then the higher level of
local, or State and local, expenditures for the education of children
with disabilities becomes the LEA's new required level of effort for
the subsequent year.
The effect would be the same under prior Sec. 300.646 if, after a
finding of significant disproportionality, an LEA reserved 15 percent
of its IDEA Part B funds for comprehensive CEIS and increased by 15
percent the amount of local, or State and local, funds it used to
provide special education and related services to children with
disabilities.
In short, Sec. 300.646(d) makes no changes to the regulations
governing LEA MOE.
We note that an LEA identified with significant disproportionality
will not be able to take advantage of the LEA MOE adjustment that would
otherwise be available under Sec. 300.205 because of the way that the
MOE adjustment provision and the authority to use Part B funds for CEIS
are interconnected. As a result, no matter how much is available for
comprehensive CEIS or for the MOE adjustment, an LEA that is required
to reserve the maximum 15 percent of its Part B allocation for
comprehensive CEIS will not be able to use Sec. 300.205(a) to reduce
its MOE obligation.
Appendix D to part 300 of the Code of Federal Regulations sets out
a number of examples for the basic calculation. We provide the
following example involving practical applications over multiple fiscal
years.
Generally, an LEA may reserve IDEA Part B funds that it is required
to reserve for comprehensive CEIS either from the funds awarded for the
Federal fiscal year (FFY) following the date on which the State
identified the significant disproportionality or from funds awarded
from the appropriation for a prior FFY. For example, State X uses data
on identification collected for school year 2015-2016, which is
reported in April 2016, to make a determination in February 2017 that
LEA Y has significant disproportionality related to identification and
therefore must set aside 15% of its IDEA Part B funds for comprehensive
CEIS. The State makes this determination before FFY 2017 funds become
available on July 1, 2017. The LEA has the following three options. The
LEA may set aside: (1) 15 percent of the funds that the LEA receives
from its FFY 2017 IDEA Part B allocation (available for obligation from
July 1, 2017, through September 30, 2019); (2) 15 percent of the funds
that the LEA received from its FFY 2016 IDEA Part B allocation
(available for obligation from July 1, 2016, through September 30,
2018); or (3) 15 percent of the funds that it received from the FFY
2015 IDEA Part B allocation (available for obligation from July 1, 2015
through September 30, 2017) only if the LEA did not use the adjustment
to reduce its required level of effort in the fiscal year covering
school year (FY) 2015-2016 under Sec. 300.205.
If an LEA selects option 1, the LEA will not be able to use the
adjustment to reduce its required level of effort under Sec. 300.205
in FY 2017-2018.
If an LEA selects option 2, the LEA will not be able to use the
adjustment to reduce its required level of effort under Sec. 300.205
in FY 2016-2017.
An LEA can only select option 3 if the LEA did not use the
adjustment in Sec. 300.205 to reduce its required level of effort in
FY 2015-2016. Because FY 2015-2016 would have ended at the time the LEA
is identified with significant disproportionality in February 2017, the
LEA would already know whether it used the adjustment in Sec. 300.205
to reduce its required level of effort in FY 2015-2016, and if it had
done so, could not use its FFY 2015 IDEA Part B funds to provide
comprehensive CEIS because of the way the MOE adjustment provision and
the authority to use IDEA Part B funds for comprehensive CEIS are
interconnected.
Information describing the actions that States and LEAs must take
to meet MOE requirements and answers to frequently asked questions
about LEA MOE can be found at www2.ed.gov/about/offices/list/osers/osep/policy.htm.
[[Page 92452]]
(See, OSEP Memorandum 08-09, Coordinated Early Intervening Services
(CEIS) under Part B of the Individuals with Disabilities Education Act
(IDEA) dated July 28, 2008, response to Question #23.)
Changes: None.
Comment: Some commenters indicated that an expansion of the
allowable uses of comprehensive CEIS to include K-12 children with
disabilities and preschool children with and without disabilities would
cause a significant increase in the burden associated with the
Department's IDEA Part B Maintenance of Effort (MOE) Reduction and
Coordinated Early Intervening Services (CEIS) data collection. Others
suggested that the Department will have to expand this data collection
to account for the additional children served by, and for the funds
spent on, comprehensive CEIS. Some commenters suggested that the
Department require States to submit data on CEIS expenditures,
disaggregated to show spending related to identification, placement,
and disciplinary removals.
Discussion: Current Sec. 300.226(d) requires each LEA that
implements CEIS to report to the State on the number of children who
received CEIS and the number of those children who subsequently
received special education and related services under Part B during the
preceding two-year period (i.e., the two years after the child has
received CEIS). 71 FR 46540, 46628 (Aug. 14, 2006). A State's decision
to provide comprehensive CEIS to children with disabilities and
preschool children with or without disabilities may expand the number
of children who receive CEIS and may increase the numbers reported. We
are sensitive to the practical difficulties that might arise. After
these regulations become final, the Department will consider what, if
any, modifications to IDEA Part B Maintenance of Effort (MOE) Reduction
and Coordinated Early Intervening Services (CEIS) data collection may
be needed to assist States and LEAs in meeting their obligations under
IDEA section 613(f)(4) (20 U.S.C. 1413(f)(4)) and 34 CFR 300.226(d)).
As we noted in the NPRM, after finalizing these regulations, the
Department intends to provide additional guidance on relevant data
collection and reporting requirements. (81 FR 10979).
Changes: None.
General Uses of Comprehensive CEIS Funds
Comments: Commenters suggested many uses for IDEA Part B funds
reserved for comprehensive CEIS. These included a wide variety of
detailed suggestions for training and professional development in
particular subject areas or in interventions, assessments, and forms of
instruction; hiring teachers and staff with specific credentials,
licenses, or experience; implementing various school-wide programs; and
investing in technology.
Some of these commenters asked the Department whether comprehensive
CEIS funds, when used to identify and address the factors contributing
to significant disproportionality, could be ``braided'' with other
funds.
Discussion: While the commenters suggested important uses for IDEA
Part B funds reserved for comprehensive CEIS, the question of whether
they are permissible uses of those funds depends upon a State's
specific finding and analysis of significant disproportionality. That
is, funds reserved for comprehensive CEIS must be used in accordance
with the requirements of Sec. 300.646(d)(1)(i) and (ii). Under Sec.
300.646(d)(1)(i), comprehensive CEIS funds may be used to carry out a
broad range of activities that ``include professional development and
educational and behavioral evaluations, services, and supports.'' Under
Sec. 300.646(d)(1)(ii), comprehensive CEIS funds must be used to
identify and address factors contributing to the significant
disproportionality identified by the State.
Finally, CEIS funds may be combined with other Federal funds,
provided that the applicable requirements for both funding streams are
met. On September 13, 2013, the Department issued guidance on
maximizing flexibility in the administration of Federal grants. OESE
Letter to State Directors.
Changes: None.
Comments: Some commenters supported proposed Sec.
300.646(d)(1)(ii), which would require that in implementing
comprehensive CEIS, an LEA must identify and address the factors
contributing to significant disproportionality. These commenters stated
that this promotes improved outcomes and a more focused use of
resources and further added that the exercise of identifying and
addressing contributing factors promoted better transparency and
accountability when addressing significant disproportionality. Other
commenters asked that the Department provide specific technical
assistance to help States and LEAs to identify these factors and
evidence-based practices to address significant disproportionality in
the LEA. One of these commenters pointed out that there are practical
limitations on personnel and funds and, therefore, that States' ability
to provide assistance to LEAs is limited. Another commenter noted that
simply requiring LEAs to identify and address the factors contributing
to disproportionality does not provide sufficient guidance or
information for an LEA to know what those factors would be or how to
bring about systems change. That commenter further noted that multiple
indicators, beyond the risk ratio, might be necessary to self-assess
and determine effective methods of addressing these factors. One
commenter stated that, unless States are required to assist LEAs in
their efforts to identify and address the factors contributing to the
significant disproportionality, this portion of the Sec.
300.646(d)(1)(ii) will be meaningless.
Discussion: We recognize the commenters' concern that LEAs would
like additional guidance or information on identifying and addressing
the factors that may contribute to significant disproportionality.
Therefore, we have added examples such as inappropriate use of
disciplinary removals; lack of access to appropriate diagnostic
screenings; differences in academic achievement levels; and policies,
practices, or procedures that contribute to the significant
disproportionality to the list of factors in Sec. 300.646(d)(1)(ii)
that may contribute to significant disproportionality. We encourage
LEAs identified with significant disproportionality in identification
that determine the overrepresentation of one racial or ethnic group is
occurring due to under-identification of another racial or ethnic group
or groups, to consider how differences in academic achievement levels
may contribute to the significant disproportionality in identification.
We have also added a new Sec. 300.646(d)(1)(iii) to clarify that
as part of implementing comprehensive CEIS, an LEA must address a
policy, practice, or procedure it identifies as contributing to the
significant disproportionality, including a policy, practice, or
procedure that results in a failure to identify, or the inappropriate
identification of, a racial or ethnic group (or groups). An LEA has the
discretion as to how to address the policy, practice or procedure, by
eliminating, revising or changing how it is implemented to ensure that
it does not contribute to the significant disproportionality, including
that it does not result in a failure to identify, or the inappropriate
identification of, a racial or ethnic group (or groups).
In addition, the Department intends to issue guidance to provide
responsible
[[Page 92453]]
public agencies with information to assist them in meeting their
obligations under IDEA and its implementing regulations, including
those provisions related to significant disproportionality. To that
end, the Department maintains a technical assistance and dissemination
network of services and supports that address a variety of topics. For
more information, see www.osepideasthatwork.org.
Changes: We have revised Sec. 300.646(d)(1)(ii) to include
additional factors that may contribute to significant
disproportionality and added a new Sec. 300.646(d)(1)(iii) to clarify
that in implementing comprehensive CEIS, an LEA must address policies,
practices, or procedures it identifies as contributing to significant
disproportionality.
Comment: One commenter noted that, while administrators may choose
to use Federal funding for de-leading, this type of expenditure may not
be a wise use of Federal special education resources.
Discussion: While using funds reserved for comprehensive CEIS for
de-leading activities is not specifically prohibited by the final
regulations, it is our intention that LEAs will identify and address
the factors that contribute to the significant disproportionality
identified by the State by carrying out activities that LEAs typically
conduct, such as providing services and supports to students or
professional development to staff. We agree with the commenter that
using funds reserved for comprehensive CEIS for de-leading activities
may not be an effective use of IDEA Part B funds reserved for
comprehensive CEIS, especially given other potential funding sources
available for de-leading activities and the amount of funds that may be
needed to carry out these activities. We note that under IDEA section
605 (20 U.S.C. 1404), an LEA must obtain approval from the State prior
to using IDEA Part B funds for equipment, construction, or alteration
of facilities. See also, 2 CFR 200.439.
Changes: None.
Implications for Voluntary Implementation of CEIS
Comments: Many commenters provided recommendations to address the
low utilization rate of voluntary CEIS under IDEA section 613(f)(20
U.S.C. 1413(f)). A number of these commenters suggested that the
Department should, or asked whether the Department intended to, extend
voluntary CEIS to children with disabilities and children ages three
through five under current Sec. 300.226 (``voluntary CEIS''). One
commenter in particular noted that this would enable States and LEAs to
provide CEIS prior to being identified for significant
disproportionality and would address the current low rate of voluntary
CEIS use among LEAs.
Further, commenters noted that the voluntary use of IDEA funds to
provide early intervention services comes with additional reporting
requirements.
Discussion: Under IDEA section 613(f) (20 U.S.C. 1413(f)), an LEA
may voluntarily use up to 15 percent of its IDEA Part B funds to
provide CEIS to children in kindergarten through grade 12 (with a
particular emphasis on children in kindergarten through grade 3) who
have not been identified as needing special education or related
services but who need additional academic and behavioral support to
succeed in a general education environment. Therefore, the Department
lacks the authority to expand the population of children who can be
provided voluntary CEIS under IDEA section 613(f).
As to reporting requirements, the State must report in the IDEA
Part B LEA Maintenance of Effort Reduction and Coordinated Early
Intervening Services data collection on the amount of IDEA Part B funds
each LEA in the State voluntarily uses for CEIS and, consistent with
the information each LEA must report annually to the State under Sec.
300.226(d), the total number of children who received CEIS during the
reporting period, and the number of children who received CEIS during
the two school years prior to the reporting period and received special
education and related services during the reporting year for each LEA.
See, www.ed.gov/edfacts for further information.
Changes: None.
Comments: A few commenters, though not opposing proposed Sec.
300.646(d)(2), noted that including children with disabilities and
children from ages three through five within the scope of comprehensive
CEIS, but not voluntary CEIS, could create some practical difficulties.
One of these commenters noted that this would create different
reporting requirements for comprehensive and voluntary CEIS. Another
commenter stated that having different reporting requirements was
burdensome and asked that the disparate reporting requirements be
streamlined. Still another commenter noted that the different
eligibility requirements for comprehensive CEIS might create budgeting,
accounting, or documentation problems because voluntary CEIS funds
cannot be freely substituted for comprehensive CEIS funds. Services for
children with disabilities begun with funds reserved for comprehensive
CEIS, for example, could not be continued with funds reserved for
voluntary CEIS, which cannot be used to provide comprehensive early
intervening services to preschool children.
Discussion: We are sensitive to the practical difficulties that
might arise from the differences between comprehensive and voluntary
CEIS. As part of the Part B Maintenance of Effort (MOE) Reduction and
Coordinated Early Intervening Services (CEIS) data collection, States
must report data submitted by LEAs, pursuant to IDEA section 613(f)(4)
and Sec. 300.226(d), including the total number of children who
received CEIS during the reporting period, and the number of children
who received CEIS during the two school years prior to the reporting
period and received special education and related services during the
reporting year.
After these regulations become final, the Department will consider
what, if any, modifications to the Part B Maintenance of Effort (MOE)
Reduction and Coordinated Early Intervening Services (CEIS) data
collection may be needed to assist States and LEAs in meeting their
obligations under IDEA section 613(f)(4) (20 U.S.C. 1413(f)(4)) and
Sec. 300.226(d).
However, the Department disagrees with commenters that the
differences in eligibility between CEIS and comprehensive CEIS will
present significant challenges to LEAs working to address significant
disproportionality and to prevent its reoccurrence. Consider an LEA
that includes children with disabilities in its implementation of
comprehensive CEIS, and, in so doing, successfully addresses the
factors contributing to the significant disproportionality. In a year
in which the State does not identify the LEA with significant
disproportionality, the LEA is not required to reserve 15 percent of
its IDEA Part B funds for comprehensive CEIS. The LEA may not use funds
it voluntarily reserves under IDEA section 613(f) (20 U.S.C. 1413(f))
to provide children with disabilities with CEIS; however, the LEA may
continue to serve these children using its IDEA, Part B funds in
accordance with Sec. 300.202 and IDEA section 613(a)(2)(A) (20 U.S.C.
1413(a)(2)(A)). Further, the LEA may not use funds it voluntarily
reserves under IDEA section 613(f) (20 U.S.C. 1413(f)) to provide CEIS
to preschool children ages three through five who are not in
kindergarten; however, the LEA may continue to serve preschool children
with disabilities ages three through five using its IDEA, Part B funds
in accordance with Sec. 300.202 and IDEA
[[Page 92454]]
section 613(a)(2)(A) (20 U.S.C. 1413(a)(2)(A)).
Changes: None.
Miscellany
Comment: Some commenters argued that proposed Sec. 300.646(d)
would create an incentive to not identify children for special
education and related services in order to reduce disproportionality
numbers and show that comprehensive CEIS is working.
Discussion: As we noted earlier in this document, under General--
Proposed Regulation Would Create Racial Quotas, the Department
recognizes the possibility that, in cases where States select
particularly low risk ratio thresholds, LEAs may have an inappropriate
incentive to avoid identifying children from particular racial or
ethnic groups in order to avoid a determination of significant
disproportionality and the reservation of IDEA Part B funds for
comprehensive CEIS. However, these actions would be inconsistent with
IDEA's child find requirements in section 612(a)(3) (20 U.S.C.
1412(a)(3)) and the evaluation requirements in section 612(a)(7) and
section 614(a)-(c) of IDEA (20 U.S.C. 1412(a)(7) and 20 U.S.C. 1414(a)-
(c)). All these provisions require an individualized determination of
whether a child has a disability and the nature and extent of the
special education and related services that a child needs. IDEA
requires that these decisions be based solely on the individual needs
of the child, and not to avoid a determination of significant
disproportionality. For this reason, Sec. 300.647(b)(1) provides
States the flexibility to set their own reasonable risk ratio
thresholds, with input from stakeholders and State Advisory Panels. It
is the Department's expectation that, as part of the process of setting
risk ratio thresholds, States will work with stakeholders to identify
particular risk ratio thresholds that help the State to address large
racial and ethnic disparities without undermining the appropriate
implementation of child find and evaluation procedures. We note that
States have an obligation under IDEA both to identify significant
disproportionality, based on race and ethnicity, in the identification
of children with disabilities and to ensure that LEAs implement child
find and evaluation procedures appropriately. (20 U.S.C. 1412(a)(3); 34
CFR 300.111).
Changes: None.
Comments: A commenter suggested that, in proposed Sec.
300.646(d)(2), the Department replace the term ``over-identified'' with
``overrepresented'' to avoid misconceptions that the clause only refers
to the over-identification of disabilities.
Discussion: We appreciate the commenter's concern, however, the
language in question is taken directly from IDEA and therefore we
decline to change it. Section 300.646(d)(2) refers to comprehensive
coordinated early intervening services. The underlying statute, IDEA
section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B), specifically provides
that States must require LEAs identified with significant
disproportionality under section 618(d)(1) to reserve the maximum
amount of funds under 613(f) to provide comprehensive coordinated early
intervening services to children in the LEA, ``particularly children in
those groups that were significantly overidentified'' under section
618(d)(1).
Changes: None.
Comment: One commenter suggested that the Department require States
to specify, as part of their reporting on comprehensive CEIS, a listing
of the types of technical assistance and professional development that
will be offered to LEAs.
Discussion: While the Department encourages States to make
technical assistance available to LEAs, and the Department intends to
do the same, we decline to require States to specify, as part of their
reporting on comprehensive CEIS, a listing of the types of technical
assistance and professional development that will be offered to LEAs.
We believe that the benefit of reporting on the technical assistance
that will be offered to LEAs would not justify the burden of requiring
States to collect and report this information to the Department.
Changes: None.
References
Bollmer, J., Bethel, J., Garrison-Mogren, R., & Brauen, M. (2007).
Using the Risk Ratio to Assess Racial/Ethnic Disproportionality in
Special Education at the School-District Level. Journal of Special
Education, 41(3), 186-198.
Data Accountability Center (2013). IDEA, Part B Dictionary (revised
January 2013). Retrieved from www2.ed.gov/programs/osepidea/618-data/collection-documentation/legacy-data-collection-information/data-dictionary/b-datadictionary.pdf.
Donovan, M.S., and Cross, T. (Eds.) (2002). Minority Students in
Special and Gifted Education. Washington, DC: National Academies of
Sciences, Committee on Minority Representation in Special Education.
Klingner, J.K., Artiles, A.J., Kozleski, E., Harry, B., Zion, S.,
Tate, W., Duran, G.Z.; Riley, D. (2005). Addressing the
Disproportionate Representation of Culturally and Linguistically
Diverse Students in Special Education through Culturally Responsive
Educational Systems. Education Policy Analysis Archives, 13(38).
Retrieved from http://files.eric.ed.gov/fulltext/EJ846743.pdf.
Morgan, P.L., Farkas, G., Hillemeier, M.M., Mattison, R., Maczuga,
S., Li, H. & Cook, M. (2015). Minorities Are Disproportionately
Underrepresented in Special Education: Longitudinal Evidence Across
Five Disability Conditions. Education Researcher, 44(5), 1-15.
Oswald, Coutinho, & Best (2002). Community and School Predictors of
Overrepresentation of Minority Children In Special Education.
Harvard Education Press, Cambridge: 375-377.
Skiba, R., Artiles, A., Kozleski, E., Losen, D. and Harry, E.
(2015). Risks and Consequences of Oversimplifying Educational
Inequities: A Response to Morgan et al. Educational Researcher,
45(3), 221-225.
U.S. Department of Education, Office of Planning, Evaluation and
Policy Development. ``FILE C002--Children With Disabilities (IDEA)
School Age File Specifications.'' Washington, DC, 2013. Retrieved
from www2.ed.gov/about/inits/ed/edfacts/eden/non-xml/c002-10-0.doc.
U.S. Department of Education, National Center for Education
Statistics. ``Statistical Methods for Protecting Personally
Identifiable Information in Aggregate Reporting.'' NCES 2011-603
(December 2010, Brief 3). Retrieved from https://nces.ed.gov/pubs2011/2011603.pdf.
U.S. Department of Education, Office of Elementary and Secondary
Education. ``Maximizing Flexibility in the Administration of Federal
Grants: IDEA, Title I, Title II, and Non-Federal Funds in Schoolwide
Programs.'' September 13, 2013. Retrieved from www2.ed.gov/programs/titleiparta/flexswp091313.pdf.
U.S. Department of Education, Office of Special Education Programs.
``Disproportionality of Racial and Ethnic Groups in Special
Education.'' Memorandum OSEP 07-09, April 24, 2007. Retrieved from
www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep07-09disproportionalityofracialandethnicgroupsinspecialeducation.doc.
U.S. Department of Education, Office of Special Education Programs.
``Reporting on Correction of Noncompliance in the Annual Performance
Report Required under Sections 616 and 642 of the Individuals with
Disabilities Education Act.'' Memorandum OSEP 09-02, October 17,
2008. Retrieved from www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep09-02timelycorrectionmemo.pdf.
U.S. Department of Education, Office of Special Education Programs.
``Coordinated Early Intervening Services (CEIS) Under Part B of the
Individuals with Disabilities Act (IDEA).'' Memorandum OSEP 08-09,
July 28, 2008. Retrieved from www2.ed.gov/policy/speced/guid/idea/ceis.html.
U.S. Department of Education, Office of Special Education Programs.
``Dear
[[Page 92455]]
Colleague Letter Regarding Education of Children with Disabilities
Attending Public Virtual Schools.'' August 5, 2016. Retrieved from
www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dcl-virtual-schools-08-05-2016.pdf.
U.S. Department of Education, Office of Special Education Programs.
``OSEP Dear Colleague Letter on Ensuring Equity and Providing
Behavioral Supports to Students with Disabilities.'' August 1, 2016.
Retrieved from www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps-08-01-2016.pdf.
U.S. Department of Education, Office of Special Education Programs.
``Questions and Answers on Disproportionality.'' June 2009.
Retrieved from www2.ed.gov/policy/speced/guid/idea/disproportionality-q-a.pdf.
U.S. Department of Education, Office of Special Education Programs.
``A Response to Intervention (RTI) Process Cannot Be Used to Delay-
Deny an Evaluation for Eligibility under the Individuals with
Disabilities Education Act (IDEA).'' Washington, DC. Retrieved from
www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf.
U.S. Department of Education, Office of Special Education and
Rehabilitative Services (2015). 37th Annual Report to Congress on
the Implementation of the Individuals with Disabilities Education
Act (2015), Washington, DC. Retrieved from www2.ed.gov/about/reports/annual/osep/2015/parts-b-c/index.html.
U.S. Department of Education, Office of Special Education Programs.
``Letter to Texas Education Agency Associate Commissioner Susan
Barnes.'' December 8, 2003. Retrieved from www2.ed.gov/policy/speced/guid/idea/letters/2003-4/barnes121803charter4q2003.pdf.
U.S. Department of Education, Office of Special Education Programs.
``Letter to Ms. Frances Loose, Supervisor, Michigan Office of
Special Education and Early Intervention.'' June 3, 2008. Retrieved
from www2.ed.gov/policy/speced/guid/idea/letters/2008-2/loose060308disprop2q2008.pdf.
U.S. Department of Education, Office of Special Education and
Rehabilitative Services. (2015). Racial and Ethnic Disparities in
Special Education: A Multi-Year Disproportionality Analysis by
State, Category, and Race/Ethnicity Analysis, Washington, DC.
Retrieved from www2.ed.gov/programs/osepidea/618-data/LEA-racial-ethnic-disparities-tables/disproportionality-analysis-by-state-analysis-category.pdf.
U.S. Department of Education, EDFacts Metadata and Process System
(EMAPS), OMB Control No. 1820-0689: ``IDEA Part B Maintenance of
Effort (MOE) Reduction and Coordinated Early Intervening Services
(CEIS),'' 2015.
U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB
Control No. 1875-0240: ``IDEA Part B Child Count and Educational
Environments Collection,'' 2015.
U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB
Control No. 1875-0240: ``IDEA Part B Discipline Collection,'' 2014.
U.S. Department of Education, U.S. Department of Health and Human
Services, 2015. Policy Statement on Inclusion of Children With
Disabilities in Early Childhood Programs. Retrieved from
www2.ed.gov/about/inits/ed/earlylearning/inclusion/index.html.
U.S. Government Accountability Office. (2013). INDIVIDUALS WITH
DISABILITIES EDUCATION ACT--Standards Needed to Improve
Identification of Racial and Ethnic Overrepresentation in Special
Education (GAO-13-137). Retrieved from www.gao.gov/products/GAO-13-137.
White House, Office of Management and Budget. ``Statistical Policy
Working Paper 22: Report on Statistical Disclosure Limitation
Methodology.'' Second version, 2005. Retrieved at www.hhs.gov/sites/default/files/spwp22.pdf.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866 defines a ``significant regulatory action'' as an action likely
to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This regulatory action is a significant regulatory action subject
to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor their regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things, and to the extent practicable--the costs
of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than specifying the behavior or manner of compliance that regulated
entities must adopt; and
(5) Identify and assess available alternatives to direct
regulation, including providing economic incentives--such as user fees
or marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only upon a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on the analysis that follows, the
Department believes that these regulations are consistent with the
principles in Executive Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
In this Regulatory Impact Analysis we discuss the need for
regulatory action, alternatives considered, the potential costs and
benefits, net budget impacts, assumptions, limitations, and data
sources.
Need for These Regulations
As we set out in detail in the preamble to the NPRM, the
overrepresentation of children of color in special education has been a
national concern for more than 40 years. In its
[[Page 92456]]
revisions of IDEA, Congress noted the problem and put a mechanism in
place through which States could identify and address significant
disproportionality on the basis of race and ethnicity for children with
disabilities. For a description of how the significant
disproportionality statutory provisions apply to States and LEAs along
with the corresponding remedies, please refer to the text of the
preamble.
Also, as stated in the preamble, IDEA does not define ``significant
disproportionality,'' and, in our August 2006 regulations, the
Department left the matter to the discretion of the States. Since then,
States have adopted different methodologies across the country, and, as
a result, far fewer LEAs are identified as having significant
disproportionality than may be anticipated given the widespread
disparities in rates of identification, placement, and disciplinary
removal across racial and ethnic groups, as noted by the GAO study and
supported by the Department's own data analysis. The lack of
consistency, and relatively low number of LEAs identified as having
significant disproportionality, raises concerns about whether the prior
approach was being implemented to meet Congress' intent to address
racial and ethnic disparities in special education and to ensure
compliance with IDEA. Therefore, there is a need for a common
methodology for States to apply when making determinations of
significant disproportionality, to address the complex, manifold causes
of the issue and ensure compliance with the requirements of IDEA.
In addition, there is a corresponding need to expand comprehensive
CEIS to include children from age 3 through grade 12, with and without
disabilities, and to require LEAs to provide comprehensive CEIS to
identify and address factors contributing to the significant
disproportionality. The current allowable uses of IDEA Part B funds
reserved for comprehensive CEIS prohibit LEAs from directing resources
to children with disabilities directly impacted by inappropriate
identification, placement, or discipline and also prohibit LEAs from
providing early intervening services to preschool children. This latter
prohibition is especially problematic, since early intervening services
have been shown to reduce the need for more extensive services in the
future. Therefore, expanding the provision of comprehensive CEIS to
preschool children allows LEAs to identify and address learning
difficulties in early childhood, reducing the need for interventions
and services later on.
Alternatives Considered
Currently, IDEA does not define ``significant disproportionality''
or prescribe to States how it must be measured. As a result, States
have adopted numerous methodologies for determining if LEAs
demonstrated significant disproportionality based on race and
ethnicity. In the NPRM, the Department proposed that all States use a
standard methodology--the risk ratio--to make determinations of
significant disproportionality in the LEAs of the State. The Department
reviewed and considered various alternatives to the proposed
regulations submitted by commenters in response to the NPRM.
The Department considered comments requesting that the Department
withdraw the NPRM and not require States to apply a standard
methodology to identify significant disproportionality. Some of these
commenters suggested that the Department first pilot a standard
methodology in several States, gather that data for analysis, and then
provide resources and technical assistance to help States and LEAs
address significant disproportionality. Other commenters stated that
LEAs are better positioned to determine the factors that contribute to
significant disproportionality and are uniquely positioned to address
those factors without the imposition of a standard methodology that did
not consider local demographics. Other commenters stated that schools
had no control over the poverty, health factors or other social ills
that contribute to disability and that mandating a standard methodology
would do nothing to address those issues or the number of children of
color in special education. The Department's effort to establish a
standard methodology for States and LEAs to determine whether
significant disproportionality exists based on race or ethnicity is
designed to: (1) Address Congress' concern ``that more minority
children continue to be served in special education than would be
expected from the percentage of minority children in the general
education.'' IDEA section 601(c)(12)(B) (20 U.S.C. 1400(c)(12)(B)); and
(2) address the GAO report (GAO-13-137) which stated that the
Department's oversight of racial and ethnic overrepresentation in
special education is hampered by the flexibility States have to
individually define significant disproportionality. The GAO recommended
that the Department, to promote consistency, develop a standard
approach to defining significant disproportionality to be used by all
States. As to the potential impact of a standard methodology, the
Department acknowledges that mandating a standard methodology to
measure significant disproportionality will not resolve poverty, poor
health and environmental conditions or other factors thought to
contribute to significant disproportionality. However, the Department
believes that there is a need for a common methodology for
determinations of significant disproportionality in order for States
and the Department to better identify and address the complex, manifold
causes of the issue and ensure compliance with the requirements of
IDEA.
In applying the risk ratio method to determine significant
disproportionality, the proposed regulations required States to use a
standard methodology which included a risk ratio, or if appropriate, an
alternate risk ratio; a reasonable risk ratio threshold; and a minimum
n-size (referred to as ``cell size'' in the NPRM) as the standard
methodology to determine whether there is significant
disproportionality based on race or ethnicity in the State and its
LEAs. States would have to analyze an LEA for significant
disproportionality if the LEA had at least 10 children in a racial or
ethnic group (for purposes of identification), or at least 10 children
with disabilities in the racial or ethnic group (for purposes of
placement or discipline). In general, most comments about the minimum
n-size addressed the tension between setting a n-size too low and
producing unreliable results and setting a n-size too high and
exempting LEAs from being reviewed for significant disproportionality.
Many commenters opposed the n-size limitation of 10 and requested that
it be raised to 30 or 40, or eliminated entirely and leave the n-size
to State discretion. These commenters argued that a larger minimum n-
size is necessary for reliable analysis to avoid LEA identification for
significant disproportionality based on a very small numbers of
children. Other commenters expressed support for the Department's
minimum n-size proposal of 10 but were willing to accept an increase to
15, to ensure that the maximum number of LEAs is reviewed for
significant disproportionality. The Department recognizes that
selecting an appropriate minimum number of children necessary to
include an LEA in the State's analysis of significant
disproportionality can be difficult. If the minimum n-size is too
small, more LEAs would be included in the analysis but the likelihood
of dramatic,
[[Page 92457]]
statistically anomalous changes in risk ratio from one year to the next
would increase. By contrast, if the minimum number is set too high, a
larger number of LEAs would be excluded from the analysis and States
would not identify as many LEAs with significant disproportionality as
there might be. The Department has amended its proposal of a minimum n-
size of 10 and will now allow States to select reasonable minimum n-
sizes and reasonable minimum cell sizes, based on advice from
stakeholders including State Advisory Panels and subject to monitoring
and enforcement for reasonableness, that strike a balance between
volatility and inclusion of LEAs in the analysis for significant
disproportionality.
Many commenters agreed with the Department's requirement that all
States use the risk ratio as the standard methodology for determining
significant disproportionality. These commenters noted that the use of
a common analytical method for determining significant
disproportionality would increase transparency in LEA identification
across States for LEA, State and Federal officials, as well as the
general public. However, some commenters indicated that the Department
should not allow States to set a reasonable risk ratio threshold or
allow States to vary the application of the risk ratio analysis to
account for State differences. These commenters stated that
methodological alignment across States is needed to advocate on behalf
of children with disabilities, reduce time and effort needed for data
analysis and to enact appropriate policies, procedures and practices to
address disproportionality on the basis of race or ethnicity. The
Department considered these concerns and acknowledges the need for a
common methodology for determinations of significant disproportionality
in order to better identify and address the complex causes of
significant disproportionality. However, as some commenters noted, LEAs
vary widely as to size and population. Some LEAs include specialized
schools, hospitals or community services that may draw large numbers of
children with disabilities and their families. States are better
positioned to identify and address the factors contributing to
significant disproportionality in the LEAs. The final regulations allow
States, in the determination of significant disproportionality, to set
reasonable risk ratio thresholds, reasonable minimum cell sizes and
reasonable minimum n-sizes, based on advice from stakeholders including
the State Advisory Panel.
Discussion of Costs, Benefits and Transfers
The Department has analyzed the costs of complying with the final
requirements. Due to the considerable discretion the final regulations
provide States (e.g., flexibility to determine their own risk ratio
thresholds, reasonable minimum n-sizes and cell sizes, and the extent
to which LEAs have made reasonable progress under Sec. 300.647(d)(2)
in lowering their risk ratios or alternate risk ratios), we cannot
evaluate the costs of implementing the final regulations with absolute
precision. However, we estimate that the total cost of these
regulations over ten years would be between $50.1 and $91.4 million,
plus additional transfers between $298.4 and $552.9 million. These
estimates assume discount rates of three to seven percent. Relative to
these costs, the major benefits of these requirements, taken as a
whole, would include: Ensuring increased transparency regarding each
State's definition of significant disproportionality; establishing an
increased role for State Advisory Panels in determining States' risk
ratio thresholds, minimum n-sizes, and minimum cell sizes; reducing the
use of potentially inappropriate policies, practices, and procedures as
they relate to the identification of children as children with
disabilities, placements in particular educational settings for these
children, along with the incidence, duration, and type of disciplinary
removals from these placements, including suspensions and expulsions;
and promoting and increasing comparability of data across States in
relation to the identification, placement, and discipline of children
with disabilities by race or ethnicity. Additionally, the Department
believes that expanding the eligibility of children ages three through
five to receive comprehensive CEIS would give LEAs new flexibility to
use additional funds received under Part B of IDEA to provide
appropriate services and supports at earlier ages to children who might
otherwise later be identified as having a disability, which could
reduce the need for more extensive special education and related
services for these children in the future.
Benefits
The Department believes this regulatory action to standardize the
methodology States use to identify significant disproportionality will
provide clarity to the public, increase comparability of data across
States, and enhance the overall level of transparency regarding the
appropriateness of State-level policies, practices, and procedures as
they relate to the identification, placement, and discipline of
children with disabilities in LEAs. The Department further believes
that methodological alignment across States will improve upon current
policy, which has resulted in numerous State definitions of significant
disproportionality of varying complexity that may be difficult for
stakeholders to understand and interpret. The wide variation in
definitions and methodologies across States under current policy also
makes it difficult for stakeholders to advocate on behalf of children
with disabilities, and for researchers to examine the extent to which
LEAs have adequate policies, practices, and procedures in place to
provide appropriate special education and related services to children
with disabilities. We believe that a standardized methodology will
accrue benefits to stakeholders in reduced time and effort needed for
data analysis and a greater capacity for meaningful advocacy.
Additionally, we believe that the standardized methodology will accrue
benefits to all children (including children with disabilities), by
promoting greater transparency and supporting the efforts of all
stakeholders to enact appropriate policies, practices, and procedures
that address disproportionality on the basis of race or ethnicity.
Requiring that States set reasonable risk ratio thresholds, minimum
n-sizes, and minimum cell sizes based on the advice from State Advisory
Panels will also give stakeholders an increased role in setting State
criteria for identifying significant disproportionality. The Department
hopes that this will give States and stakeholders an opportunity, and
an incentive, to thoughtfully examine existing State policies and
ensure that they appropriately identify LEAs with significant and
ongoing disparities in the identification of children with
disabilities, their placements in particular educational settings, and
their disciplinary removals. Further, we hope that States will also
take this opportunity to consult with their State Advisory Panels on
the States' approaches to reviewing policies, practices, and
procedures, to ensure that they comply with IDEA and have the capacity
to provide appropriate support.
In addition, there is widespread evidence on the short- and long-
term negative impacts of suspensions and expulsions on student academic
[[Page 92458]]
outcomes. In general, suspended children are more likely to fall
behind, to become disengaged from school, and to drop out of a school.
(Lee, Cornell, Gregory, & Xitao, 2011; Brooks, Shiraldi & Zeidenberg,
2000; Civil Rights Project, 2000.) The use of suspensions and
expulsions is also associated with an increased likelihood of contact
with the juvenile justice system in the year following those
disciplinary actions. (Council of Statement Governments, 2011.)
The Department believes that suspensions and expulsions can often
be avoided, particularly if LEAs use appropriate school-wide
interventions, and appropriate student-level supports and
interventions, including proactive and preventative approaches that
address the underlying causes or behaviors and reinforce positive
behaviors. We believe that the final regulations clarify each State's
responsibility to implement the statutory remedies whenever significant
disproportionality in disciplinary removals is identified, and will
prompt States and LEAs to initiate efforts to reduce schools' reliance
on suspensions and expulsions as a core part of their efforts to
address significant disproportionality. In so doing, we believe that
LEAs will increase the number of children participating in the general
education curriculum on a regular and sustained basis, thus accruing
benefits to children and society through greater educational gains.
Under section 613(f) of IDEA and Sec. 300.226, LEAs are not
authorized to voluntarily use funds for CEIS to serve children with
disabilities or children ages three through five. By clarifying that
comprehensive CEIS can also be used to support children with
disabilities and children ages three through five, the final
regulations will allow LEAs to direct resources in a more purposeful
and impactful way to improve outcomes for those children in subgroups
that have been most affected by significant disproportionality. For
example, LEAs would be able to use comprehensive CEIS to expand the use
of multi-tiered systems of support, which could help LEAs determine
whether children identified with disabilities have access to
appropriate, targeted supports and interventions to allow them to
succeed in the general education curriculum. Additionally, by expanding
the eligibility of children ages three through five to receive
comprehensive CEIS, LEAs identified as having significant
disproportionality will have additional resources to provide high-
quality early intervening services, which research has shown can
increase children's language, cognitive, behavioral, and physical
skills, and improve their long-term educational outcomes. LEAs could
use funds reserved for comprehensive CEIS to provide appropriate
services and supports at earlier ages to children who might otherwise
later be identified as having a disability, which could reduce the need
for more extensive special education and related services for these
children in the future.
While the Department cannot, at this time, meaningfully quantify
the economic impacts of the benefits outlined above, we believe that
they are substantial and outweigh the estimated costs of these final
regulations.
The following section provides a detailed analysis of the estimated
costs of implementing the requirements contained in the new
regulations.
Number of LEAs Newly Identified
In order to accurately estimate the fiscal and budgetary impacts of
these regulations, the Department must estimate not only the costs
associated with State compliance with these regulations, but also the
costs borne by any LEAs that would be identified as having significant
disproportionality under this new regulatory scheme that would not have
been identified had the Department not regulated. However, at this
time, the Department does not know, with a high degree of certainty,
how many LEAs will be newly identified in future years. Given that a
large proportion of the cost estimates in this section are driven by
assumptions regarding the number of LEAs that SEAs might identify in
any given year, these estimates are highly sensitive to those
assumptions. In 2012-2013, the most recent year for which data are
available, States identified 449 out of approximately 16,000 LEAs
nationwide as having significant disproportionality. For purposes of
our estimates, the Department used this level of identification as a
baseline, only estimating costs for the number of LEAs over 449 that
would be identified in future years.
These regulations largely focus on methodological issues related to
the consistency of State policies and do not require States to identify
LEAs at a higher rate than they currently do. As such, it is possible
that these regulations may not result in any additional LEAs being
identified as having significant disproportionality. However, we
believe that this is unlikely and therefore would represent an extreme
lower bound estimate of the cost of this regulation.
We believe it is much more likely that the regulation will provide
States and advocates with an opportunity to make meaningful and
substantive revisions to their current approaches to identifying and
addressing significant disproportionality. To the extent that States
and State Advisory Panels, as part of the shift to the new standard
methodology, establish risk ratio thresholds, minimum n-sizes, and
minimum cell sizes that identify more LEAs than they currently do, it
is likely that there will be an increase in the number of LEAs
identified nationwide. We do not specifically know what risk ratio
thresholds, minimum n-sizes, and minimum cell sizes States will set in
consultation with their State Advisory Panels and therefore do not know
the number of LEAs that would be identified under those new thresholds.
However, for purposes of these cost estimates, we assume that those
changes would result in 400 additional LEAs being identified each year
nationwide. This number represents an approximately ninety percent
increase in the overall number of LEAs identified by States
collectively each year. The Department assumes that changes in State
policies and procedures are one potential and likely outcomes of these
regulations; therefore, the number of new LEAs that may be identified
is also reflected in our cost estimates.
As noted in the Costs and Burden of the Proposed Regulations
section, the Department does not agree with commenters who assert that
these final regulations will result in determinations of significant
disproportionality for nearly half the LEAs in the country. Therefore,
we have not changed the number of LEAs identified and corresponding
costs associated with those LEAs. The Department also believes that
changes in the final regulations, outlined in the Minimum Cell Sizes
and Minimum N-Sizes Section, that allow States to set reasonable
minimum n-sizes and cell sizes within the bounds prescribed in the
preamble will likely result in far fewer LEAs identified than some
commenters predict.
To the extent that States identify fewer than 400 additional LEAs
in each year or that the number of LEAs identified decreases over time,
the estimates presented below are overestimates of the actual costs.
For a discussion of the impact of this assumption on our cost
estimates, see the Sensitivity Analysis section of this Regulatory
Impact Analysis.
General Changes in the Cost Estimates From the NPRM
The Department has increased the estimated cost of these
regulations in
[[Page 92459]]
response to both changes to the final regulations and comments from the
public. The final regulations require States to set reasonable minimum
n-sizes, minimum cell sizes, and if the State uses the flexibility
described in Sec. 300.646(d)(2), standards for determining reasonable
progress in consultation with their State Advisory Panels, which could
result in additional burden for Federal and State level staff. States
will also have some additional burden associated with reporting these
data to the Department. The Department also agrees with commenters that
the NPRM likely underestimated the time required to modify data
collection protocols, technical assistance activities, and
communication required to implement the rule. We have therefore
increased the estimated number of hours to better reflect the work
required to adequately implement these regulations in a number of
sections, including the ``State-level Review and Compliance With the
New Rule,'' the ``Annual Calculation of Risk Ratios and Notification of
LEAs,'' and the ``Federal Review of State Risk Ratio Thresholds''
sections. Finally, the Department modified the State level cost
estimates in the NPRM because the final regulations do not require the
use of the standard methodology when both the LEA and the State fail to
meet the State's minimum n-size and minimum cell size. Therefore, in
this final estimate, the Department removed costs associated the Bureau
of Indian Education (BIE) because BIE will not typically have a
comparison group and mathematically cannot calculate risk ratios for
any racial or ethnic group. This change resulted in a slight decrease
for State level costs associated with BIE.
Cost of State-Level Activities
These regulations require every State to use a standard methodology
to determine if significant disproportionality based on race and
ethnicity is occurring in the State and LEAs of the State with respect
to the identification of children as children with disabilities, the
placement in particular educational settings of these children, and the
incidence, duration, and type of disciplinary removals from placement,
including suspensions and expulsions. These regulations require States
to set and report to the Department risk ratio thresholds, above which
LEAs would be identified as having significant disproportionality, and
provide States the flexibility to: (1) Use up to three years of data to
make a determination of significant disproportionality; (2) set and
report to the Department reasonable minimum n-sizes and minimum cell
sizes consistent with the limitations outlined in these regulations,
and; (3) if a State uses the flexibility described in paragraph (d)(2),
set and report standards for determining whether LEAs have made
reasonable progress under Sec. 300.647(d)(2) in lowering their risk
ratios or alternate risk ratios. Finally, these regulations clarify
that LEAs must identify and address the factors contributing to
significant disproportionality when implementing comprehensive CEIS.
State-Level Review and Compliance With the New Rule
The extent of the initial burden placed on States by the regulation
will depend on the amount of staff time required to understand the new
regulation, modify existing data collection and calculation tools, meet
with State Advisory Panels to develop and report to the Department risk
ratio thresholds, minimum n-sizes, minimum cell sizes, and standards
for reasonable progress, draft and disseminate new guidance to LEAs,
and review and update State systems that examine the policies,
practices, and procedures of LEAs identified as having significant
disproportionality.
To comply with the final regulations, States will have to take time
to review the regulations, determine how these regulations will affect
existing State policies, practices, and procedures, and plan for any
actions necessary to comply with the new requirements. To estimate the
cost per State, we assume that State employees involved in this work
would likely include a Special Education Director ($63.04), a Database
Manager ($52.32), two Management Analysts ($44.64), and a Lawyer
($61.66), at 16 hours each for a total one-time cost for the 50 States,
the District of Columbia, Puerto Rico, Guam, American Samoa, and the
Virgin Islands of $234,345.\4\
---------------------------------------------------------------------------
\4\ Unless otherwise noted, all hourly wages are loaded wage
rates and are based on median hourly earnings as reported in the May
2014 National Occupational Employment and Wage Estimates from the
Bureau of Labor Statistics (see www.bls.gov/oes/current/999201.htm)
multiplied by an employer cost for employee compensation of 1.57
(see www.bls.gov/news.release/ecec.toc.htm).
---------------------------------------------------------------------------
Since no State currently calculates significant disproportionality
using the exact methodology in this regulation, each State will need to
modify its data collection tools. To estimate the cost per State, the
Department doubled the time estimates contained in the NPRM. We assume
that State employees would likely include a Database Manager ($52.32)
and a Management Analyst ($44.64) at 32 hours each for a total one-time
cost for the 50 States, the District of Columbia, Puerto Rico, Guam,
American Samoa, and the Virgin Islands of $170,648. While we recognize
that these costs will vary widely from State to State, we believe that
this total represents an appropriate estimate of the costs across all
States.
States will also need to draft, issue, and disseminate new guidance
documents to LEAs regarding these regulatory changes, including a
discussion of any new data collection tools or processes and revised
procedures for identifying and notifying LEAs. We assume States would
have to communicate changes in policy and would likely use a mixture of
teleconferences, Webinars, and guidance documents to ensure that LEAs
understand and comply with revised policies. To estimate the cost per
State, the Department doubled the previous time estimates from the
NPRM. We assume that State employees would likely include a Special
Education Director ($63.04) for 6 hours, 5 Management Analysts ($44.64)
for 32 hours, 2 Administrative Assistants ($25.69) for 16 hours, a
Computer Support Specialist ($35.71) for 4 hours, and 2 lawyers
($61.66) for 32 hours, for a total one-time cost for the 50 States, the
District of Columbia, Puerto Rico, Guam, American Samoa, and the Virgin
Islands of $683,748.
Additionally, changes under Sec. 300.646(d) require LEAs
identified as having significant disproportionality to use funds
reserved for comprehensive CEIS to identify and address the factors
contributing to significant disproportionality. States will have to
review their existing processes to ensure that LEAs are provided with
appropriate support to identify these contributing factors and use
funds for comprehensive CEIS in ways that are appropriately targeted to
address those factors. To estimate the cost per State, we assume that
State employees involved in these activities would likely include a
Special Education Director ($63.04) for 4 hours, 2 Management Analysts
($44.64) for 16 hours, an Administrative Assistant ($25.69) for 2
hours, and a Manager ($51.50) for 8 hours for a total one-time cost for
the 50 States, the District of Columbia, Puerto Rico, Guam, American
Samoa, and the Virgin Islands of $117,922.
Under the new regulations, States must also determine risk ratio
thresholds, minimum n-sizes, minimum cell sizes, and a standard for
reasonable progress, based on the advice of stakeholders, including
State Advisory Panels, as provided under IDEA section
612(a)(21)(D)(iii). In order to estimate
[[Page 92460]]
the cost of implementing these requirements including the new
requirement that States set reasonable minimum n-sizes and cell sizes,
the Department doubled the previous time estimates from the NPRM. We
assume that the average State would likely initially meet this
requirement in Year 1 and revisit the thresholds and cell sizes every
five years thereafter. We further assume that the meetings with the
State Advisory Panels would include at least the following
representatives from the statutorily required categories of
stakeholders: One parent of a child with disabilities; one individual
with disabilities; one teacher; one representative of an institution of
higher education that prepares special education and related services
personnel; one State and one local education official, including an
official who carries out activities under subtitle B of title VII of
the McKinney-Vento Homeless Assistance Act; one Administrator of
programs for children with disabilities; one representative of other
State agencies involved in the financing or delivery of related
services to children with disabilities; one representative of private
schools and public charter schools; one representative of a vocational,
community, or business organization concerned with the provision of
transition services to children with disabilities; one representative
from the State child welfare agency responsible for foster care; and
one representative from the State juvenile and adult corrections
agencies. To estimate the cost of participating in these meetings for
the required categories of stakeholders, we assume that each meeting
would require 16 hours of each participant's time (including
preparation for and travel to and from the meeting and the time for the
meeting itself) and use the following national median hourly wages \5\
for full-time State and local government workers employed in these
professions: Postsecondary education administrators, $44.28 (1
stakeholder); primary, secondary, and special education school
teachers, $35.66 \6\ (1 stakeholder); State social and community
service managers, $32.86 (5 stakeholders); local social and community
service managers, $37.13 (1 stakeholder); other management occupations,
$40.22 (1 stakeholder); elementary and secondary school education
administrator, $42.74 (1 stakeholder).\7\ For the opportunity cost for
the parent and individual with disabilities, we use the average median
wage for all workers of $17.09. We also assume that State staff would
prepare for and facilitate each meeting, including the Special
Education Director ($63.04) for 4 hours, one State employee in a
managerial position ($51.50) for 32 hours, one Management Analyst
($44.64) for 32 hours, and one Administrative Assistant ($25.69) for 32
hours. Based on these participants, we estimate that consultation with
the State Advisory Panels would have a cumulative one-year cost of
$578,988 for the 50 States, the District of Columbia, Puerto Rico,
Guam, American Samoa, and the Virgin Islands.
---------------------------------------------------------------------------
\5\ Wages in this section do not reflect loaded wage rates.
\6\ Hourly earnings were estimated using the annual salary for
this job classification as reported in the May 2014 National
Occupational Employment and Wage Estimates from the Bureau of Labor
Statistics (see http://www.bls.gov/oes/current/999201.htm) divided
by the number of workdays and hours per day assuming 200 workdays
and 8 hours per day.
\7\ Hourly earnings were estimated using the annual salary for
this job classification as reported in the May 2014 National
Occupational Employment and Wage Estimates from the Bureau of Labor
Statistics (see http://www.bls.gov/oes/current/999201.htm) divided
by the number of work weeks and hours per week assuming 52 weeks and
40 hours per week.
---------------------------------------------------------------------------
New Sec. 300.647(b)(7) will require States to report all risk
ratio thresholds, minimum cell sizes, minimum n-sizes, standards for
measuring reasonable progress, and the rationales for each to the
Department at a time and in a manner determined by the Secretary. To
estimate the cost per State, we assume that State employees would
likely include a Database Manager ($52.32) for 5 hours and a Management
Analyst ($44.64) for 20 hours for an annual cost for the 50 States, the
District of Columbia, Puerto Rico, Guam, American Samoa, and the Virgin
Islands of $63,491.
Annual Calculation of Risk Ratios and Notification of LEAs
In addition to the costs outlined above, States will incur annual
costs associated with calculating risk ratios, making determinations of
significant disproportionality, and notifying LEAs of determinations.
New Sec. 300.647 requires every State to annually calculate
significant disproportionality for each LEA using a risk ratio or
alternate risk ratio method in every category of analysis (as defined
in this document) that meets the minimum n-size and cell size
requirements, as determined by the State. States are required to
identify LEAs above the risk ratio threshold with significant
disproportionality. When making a determination of significant
disproportionality, States will be allowed to use up to three years of
data, and take into account whether LEAs demonstrate reasonable
progress, under Sec. 300.647(d)(2), in lowering their risk ratios or
alternate risk ratios. To estimate the annual cost per State, the
Department doubled the time estimates included in the NPRM. In this
notice of final regulations, we assume that State employees involved in
this calculation will include 3 Management Analysts ($44.64) for 48
hours and one Administrative Assistant ($25.69) for 12 hours for an
annual cost of $370,500 for the 50 States, the District of Columbia,
Puerto Rico, Guam, American Samoa, and the Virgin Islands.
After identifying LEAs with significant disproportionality, States
would have to notify LEAs of their determination. We assume that a
State employee in a managerial position ($51.50) would call each
identified LEA with the assistance of one Administrative Assistant
($25.69) and take approximately 15 minutes per LEA. We assume 400 new
LEAs will be identified with significant disproportionality, resulting
in an annual cost of $7,719.
Review and Revision of Policies, Practices, and Procedures
States are required to provide for the review and, if appropriate,
revision of policies, practices, and procedures related to the
identification, placement, and discipline of children with disabilities
to ensure the policies, practices, and procedures comply with
requirements of IDEA and publicly report any revisions. We assume
States will ensure LEAs are complying with these requirements though
desk audits, meetings or phone calls with LEAs, analysis of data, or
sampling of IEPs and evaluations. To estimate the annual cost at the
State level, we assume that State employees would likely include one
Special Education Director ($63.04) for 0.5 hours, one State employee
in a managerial position ($51.50) for 1 hour, one Administrative
Assistant ($25.69) for 1 hour, and 1 Management Analyst ($44.64) for 6
hours for each LEA. We assume 400 new LEAs are identified with
significant disproportionality each year, the annual cost would be
$150,621 for the 50 States, the District of Columbia, Puerto Rico,
Guam, American Samoa, and the Virgin Islands.
States are required to ensure that LEAs identified with significant
disproportionality review their policies, practices, and procedures
related to the identification, placement, and discipline of children
with disabilities to ensure the policies, practices, and procedures
comply with requirements
[[Page 92461]]
of IDEA. We assume this would require LEAs to examine data, identify
areas of concern, visit schools, review IEPs and evaluations, and
review any other relevant documents. To estimate the annual cost to
review policies, practices, and procedures at the LEA level, we assume
that LEA employees would likely include one District Superintendent
($85.74) for 5 hours, one local employee in a managerial position
($58.20) for 60 hours, one local Special Education Director ($66.52)
for 20 hours, two local Administrative Assistants ($28.43) for 15
hours, four Special Education teachers ($58.47 \8\) for 2 hours, and
two Education Administrators ($70.37 \9\) for 8 hours for each LEA. If
we assume 400 new LEAs are identified with significant
disproportionality, the annual cost to LEAs would be $3,079,030.
---------------------------------------------------------------------------
\8\ Hourly earnings were estimated using the annual salary for
this job classification as reported in the May 2014 National
Occupational Employment and Wage Estimates from the Bureau of Labor
Statistics (see www.bls.gov/oes/current/999201.htm) divided by the
number of work days and hours per day assuming 200 workdays and 8
hours per day.
\9\ Hourly earnings were determined using the annual salary for
this job classification as reported in the May 2014 National
Occupational Employment and Wage Estimates from the Bureau of Labor
Statistics (see www.bls.gov/oes/current/999201.htm) divided by the
number of work weeks and hours per week assuming 52 weeks and 40
hours per week.
---------------------------------------------------------------------------
After reviewing their policies, practices, and procedures related
to the identification, placement, and discipline of children with
disabilities, LEAs are required, if appropriate, to revise those
policies, practices, and procedures to ensure they comply with
requirements of IDEA. We assume LEAs will have to spend time developing
a plan to change any policies, practices, and procedures identified in
their review based on relevant data. To estimate the annual cost to
revise policies, practices, and procedures we assume that LEA staff
would likely include one District Superintendent ($85.74) for 2 hours,
one local employee in a managerial position ($58.20) for 60 hours, one
local Special Education Director ($66.52) for 20 hours, and two local
Administrative Assistants ($28.43) for 8 hours for each LEA. If we
assume half of the new LEAs identified with significant
disproportionality (200 LEAs) would need to revise their policies,
practices, and procedures the annual cost would be $1,089,730.
Planning for and Tracking the Use of Funds for Comprehensive CEIS
LEAs identified with significant disproportionality are required by
statute to reserve 15 percent of their IDEA Part B funds for
comprehensive CEIS. Any LEAs fitting into this category will also have
to plan for the use of funds reserved for comprehensive CEIS. To
estimate the annual cost of planning for the use of IDEA Part B funds
for comprehensive CEIS, we assume that LEA employees involved in these
activities would likely include one District Superintendent ($85.74)
for 1 hour, one local employee in a managerial position ($58.20) for 16
hours, one local Special Education Director ($66.52) for 4 hours, and
one local Budget Analyst ($49.97) for 24 hours for each LEA. If we
assume 400 new LEAs are identified with significant disproportionality,
the annual cost would be $992,890.
LEAs reserving IDEA Part B funds for comprehensive CEIS will also
have to track the actual use of those funds. We assume LEAs will have
to commit staff time to ensure they are meeting the fiscal requirements
associated with the use of funds for comprehensive CEIS. To estimate
the annual cost of tracking the use of funds for comprehensive CEIS, we
assume that one local Budget Analyst ($49.97) would be required for 8
hours for each LEA. If we assume 400 new LEAs are identified with
significant disproportionality, the annual cost would be $159,900.
LEAs providing comprehensive CEIS are also currently required to
track the number of children served under comprehensive CEIS and the
number of children served under comprehensive CEIS who subsequently
receive special education and related services during the preceding
two-year period. To estimate the annual cost of tracking children
receiving services under comprehensive CEIS, we assume that LEA
employees would likely include one Database Manager ($50.63) for 40
hours and one local Administrative Assistant ($28.43) for 8 hours for
each LEA. If we assume 400 new LEAs are identified with significant
disproportionality, the annual cost would be $901,016.
States are required to annually review each LEA's application for a
subgrant under IDEA Part B. As noted above, LEAs identified with
significant disproportionality are required to reserve 15 percent of
their Part B funds for comprehensive CEIS and many States require LEAs
to reflect that reservation as part of their application for IDEA Part
B funds. To estimate the annual cost stemming from State reviews of LEA
applications to ensure compliance for all newly identified LEAs, we
assume that State employees would likely include one Management Analyst
($44.64) and take 0.25 hours for each LEA. If we assume 400 new LEAs
are identified with significant disproportionality, the annual cost
would be $4,464.
Federal Review of State Risk Ratio Thresholds
Under Sec. 300.647(b)(1)(iii), the risk ratio thresholds, minimum
n-sizes, minimum cell sizes, and standards for reasonable progress
established by States are subject to monitoring and enforcement by the
Department. At this time, the Department expects that it would conduct
monitoring of all States in the first year that States set the
thresholds, minimum n-sizes, minimum cell sizes, and standards for
reasonable progress and then monitor the thresholds, minimum n-sizes,
minimum cell sizes, and standards for reasonable progress again in any
year in which a State changes these standards. To estimate the annual
cost of reviewing risk ratio thresholds, minimum n-sizes, minimum cell
sizes, and the standards for reasonable progress, the Department
assumes the new requirements would increase staff time four fold. We
assume that Department staff involved in these reviews would likely
include one management analyst at the GS-13 level ($73.95 \10\), and
take 4 hour each for the 50 States, the District of Columbia, Puerto
Rico, Guam, American Samoa, and the Virgin Islands. If we assume the
Department would have to review every State in year one, 25 States in
year 2, 10 States in year 3, and 5 States in each year thereafter, the
average annual cost over the ten year time horizon would be $3,058 at a
7 percent discount rate.
---------------------------------------------------------------------------
\10\ This loaded hourly wage rate is based on the hourly
earnings of a GS-13 step 3 federal employee in Washington, DC. (See:
www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/16Tables/html/DCB_h.aspx).
---------------------------------------------------------------------------
Transfers
Under IDEA, LEAs identified with significant disproportionality are
required to reserve 15 percent of their IDEA Part B allocation for
comprehensive CEIS. Consistent with the Office of Management and Budget
Circular A-4, transfers are monetary payments from one group to another
that do not affect total resources available to society; therefore,
this reservation constitutes a transfer. Using data collected under
section 618 from the SY 2011-2012, the Department estimates that 15
percent of the average LEA section 611 and section 619 subgrants will
be $106,220. Assuming 400 new LEAs are identified with significant
disproportionality each year, the total annual transfer would be
$42,488,000. It is important to note that
[[Page 92462]]
these formula funds would not be subgranted to new entities, but rather
that the beneficiaries of these funds would change. As noted elsewhere
in this final rule, the regulations clarify that funds reserved for
comprehensive CEIS can be used to provide services to children with
disabilities. To the extent that LEAs use their funds reserved for
comprehensive CEIS to provide services to these children, the total
amount of the transfer will be lower than what is estimated here.
Sensitivity Analysis
As noted elsewhere in the Discussion of Costs, Benefits, and
Transfers, the estimated costs associated with this regulation are
highly sensitive to the Department's assumption regarding the total
number of LEAs nationwide that States will identify in each year. For
purposes of the estimates outlined above, the Department assumed that
400 additional LEAs above the baseline of 449 would be identified in
each year. However, since we do not know how many LEAs States will
actually identify as a result of the changes, for the purpose of this
sensitivity analysis, we develop and present what we consider to be
reasonable upper- and lower-bound estimates. To establish a reasonable
lower-bound, we estimate that no additional LEAs above the baseline
number would be identified in the out years. We believe that this would
represent an extreme lower bound for the likely costs of this
regulation because we consider it highly unlikely that there would be
no additional LEAs identified. As noted above, the Department's
estimate of 400 LEAs is based on a view that at least some, if not
most, States will take advantage of the opportunity presented by the
transition to the standard methodology to set risk ratio thresholds and
reasonable n-size and cell size requirements that identify more LEAs.
We believe that this assumption of 400 LEAs above baseline represents
the most reasonable estimate of the likely costs associated with these
final rules. In order to estimate an upper bound, the Department
assumes that States could set much more aggressive thresholds or small
n-size or cell size requirements for identifying LEAs with significant
disproportionality, ultimately identifying an additional 1,200 LEAs
above baseline each year. As with the estimate of 400 LEAs, it is
important to note that the regulation itself would not require States
to identify additional LEAs. Rather, the Department is attempting to
estimate a range of potential State-level responses to the regulation,
including making proactive decisions to shift State policies related to
identification of LEAs. In the table below, we show the impact of these
varying assumptions regarding the number of additional LEAs identified
on the estimated costs. Costs and transfers outlined in this table are
calculated at a three percent discount rate.
Table 2--Sensitivity of Cost Estimates to Number of Additional LEAs Assumed To Be Identified
----------------------------------------------------------------------------------------------------------------
Costs
Category -----------------------------------------------
0 LEAs 400 LEAs 1,200 LEAs
----------------------------------------------------------------------------------------------------------------
State-level review and compliance with the new rule (modifying $3,362,902 $3,362,902 $3,362,902
data collection tools, meeting with State Advisory Panels,
drafting and issuing guidance to LEAs, reporting data).........
Annual calculation of risk ratios and notification of LEAs...... 4,821,062 4,921,510 5,122,405
Review and, if necessary, revision of policies, practices, and 0 56,312,177 168,722,536
procedures.....................................................
Planning for and tracking the use of funds for comprehensive 0 26,782,849 80,348,546
CEIS...........................................................
----------------------------------------------------------------------------------------------------------------
Category Transfers
----------------------------------------------------------------------------------------------------------------
Reservation of funds for comprehensive CEIS..................... 0 552,867,164 1,658,601,491
----------------------------------------------------------------------------------------------------------------
Paperwork Reduction Act of 1995
This final rule contains information collection requirements that
are approved by OMB under OMB control number 1820-0689. It also
contains a new regulatory requirement, in Sec. 300.647(b)(7), that
implicates the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520)
(PRA). We will meet all applicable PRA requirements before we collect
any information pursuant to the new requirement.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
Order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive Order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of the Department's
specific plans and actions for this program.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on 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.
List of Subjects in 34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs--education, Privacy, Private
schools, Reporting and recordkeeping requirements.
[[Page 92463]]
Dated: December 12, 2016.
John B. King, Jr.,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary of
Education amends title 34 of the Code of Federal Regulations as
follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
0
1. The authority citation for part 300 continues to read as follows:
Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, 3474, unless
otherwise noted.
0
2. Section 300.646 is revised to read as follows:
Sec. 300.646 Disproportionality.
(a) General. Each State that receives assistance under Part B of
the Act, and the Secretary of the Interior, must provide for the
collection and examination of data to determine if significant
disproportionality based on race and ethnicity is occurring in the
State and the LEAs of the State with respect to--
(1) The identification of children as children with disabilities,
including the identification of children as children with disabilities
in accordance with a particular impairment described in section 602(3)
of the Act;
(2) The placement in particular educational settings of these
children; and
(3) The incidence, duration, and type of disciplinary removals from
placement, including suspensions and expulsions.
(b) Methodology. The State must apply the methods in Sec. 300.647
to determine if significant disproportionality based on race and
ethnicity is occurring in the State and the LEAs of the State under
paragraph (a) of this section.
(c) Review and revision of policies, practices, and procedures. In
the case of a determination of significant disproportionality with
respect to the identification of children as children with disabilities
or the placement in particular educational settings, including
disciplinary removals of such children, in accordance with paragraphs
(a) and (b) of this section, the State or the Secretary of the Interior
must--
(1) Provide for the annual review and, if appropriate, revision of
the policies, practices, and procedures used in identification or
placement in particular education settings, including disciplinary
removals, to ensure that the policies, practices, and procedures comply
with the requirements of the Act.
(2) Require the LEA to publicly report on the revision of policies,
practices, and procedures described under paragraph (c)(1) of this
section consistent with the requirements of the Family Educational
Rights and Privacy Act, its implementing regulations in 34 CFR part 99,
and Section 618(b)(1) of the Act.
(d) Comprehensive coordinated early intervening services. Except as
provided in paragraph (e) of this section, the State or the Secretary
of the Interior shall require any LEA identified under paragraphs (a)
and (b) of this section to reserve the maximum amount of funds under
section 613(f) of the Act to provide comprehensive coordinated early
intervening services to address factors contributing to the significant
disproportionality.
(1) In implementing comprehensive coordinated early intervening
services an LEA--
(i) May carry out activities that include professional development
and educational and behavioral evaluations, services, and supports.
(ii) Must identify and address the factors contributing to the
significant disproportionality, which may include, among other
identified factors, a lack of access to scientifically based
instruction; economic, cultural, or linguistic barriers to appropriate
identification or placement in particular educational settings;
inappropriate use of disciplinary removals; lack of access to
appropriate diagnostic screenings; differences in academic achievement
levels; and policies, practices, or procedures that contribute to the
significant disproportionality.
(iii) Must address a policy, practice, or procedure it identifies
as contributing to the significant disproportionality, including a
policy, practice or procedure that results in a failure to identify, or
the inappropriate identification of, a racial or ethnic group (or
groups).
(2) An LEA may use funds reserved for comprehensive coordinated
early intervening services to serve children from age 3 through grade
12, particularly, but not exclusively, children in those groups that
were significantly overidentified under paragraph (a) or (b) of this
section, including--
(i) Children who are not currently identified as needing special
education or related services but who need additional academic and
behavioral support to succeed in a general education environment; and
(ii) Children with disabilities.
(3) An LEA may not limit the provision of comprehensive coordinated
early intervening services under this paragraph to children with
disabilities.
(e) Exception to comprehensive coordinated early intervening
services. The State or the Secretary of the Interior shall not require
any LEA that serves only children with disabilities identified under
paragraphs (a) and (b) of this section to reserve funds to provide
comprehensive coordinated early intervening services.
(f) Rule of construction. Nothing in this section authorizes a
State or an LEA to develop or implement policies, practices, or
procedures that result in actions that violate the requirements of this
part, including requirements related to child find and ensuring that a
free appropriate public education is available to all eligible children
with disabilities.
(Authority: 20 U.S.C. 1413(f); 20 U.S.C. 1418(d))
0
3. Section 300.647 is added to read as follows:
Sec. 300.647 Determining significant disproportionality.
(a) Definitions. (1) Alternate risk ratio is a calculation
performed by dividing the risk of a particular outcome for children in
one racial or ethnic group within an LEA by the risk of that outcome
for children in all other racial or ethnic groups in the State.
(2) Comparison group consists of the children in all other racial
or ethnic groups within an LEA or within the State, when reviewing a
particular racial or ethnic group within an LEA for significant
disproportionality.
(3) Minimum cell size is the minimum number of children
experiencing a particular outcome, to be used as the numerator when
calculating either the risk for a particular racial or ethnic group or
the risk for children in all other racial or ethnic groups.
(4) Minimum n-size is the minimum number of children enrolled in an
LEA with respect to identification, and the minimum number of children
with disabilities enrolled in an LEA with respect to placement and
discipline, to be used as the denominator when calculating either the
risk for a particular racial or ethnic group or the risk for children
in all other racial or ethnic groups.
(5) Risk is the likelihood of a particular outcome (identification,
placement, or disciplinary removal) for a specified racial or ethnic
group (or groups), calculated by dividing the number of children from a
specified racial or ethnic group (or groups) experiencing that outcome
by the total number of children from that racial or
[[Page 92464]]
ethnic group or groups enrolled in the LEA.
(6) Risk ratio is a calculation performed by dividing the risk of a
particular outcome for children in one racial or ethnic group within an
LEA by the risk for children in all other racial and ethnic groups
within the LEA.
(7) Risk ratio threshold is a threshold, determined by the State,
over which disproportionality based on race or ethnicity is significant
under Sec. 300.646(a) and (b).
(b) Significant disproportionality determinations. In determining
whether significant disproportionality exists in a State or LEA under
Sec. 300.646(a) and (b)--
(1)(i) The State must set a:
(A) Reasonable risk ratio threshold;
(B) Reasonable minimum cell size;
(C) Reasonable minimum n-size; and
(D) Standard for measuring reasonable progress if a State uses the
flexibility described in paragraph (d)(2) of this section.
(ii) The State may, but is not required to, set the standards set
forth in paragraph (b)(1)(i) of this section at different levels for
each of the categories described in paragraphs (b)(3) and (4) of this
section.
(iii) The standards set forth in paragraph (b)(1)(i) of this
section:
(A) Must be based on advice from stakeholders, including State
Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the
Act; and
(B) Are subject to monitoring and enforcement for reasonableness by
the Secretary consistent with section 616 of the Act.
(iv) When monitoring for reasonableness under paragraph
(b)(1)(iii)(B) of this section, the Department finds that the following
are presumptively reasonable:
(A) A minimum cell size under paragraph (b)(1)(i)(B) of this
section no greater than 10; and
(B) A minimum n-size under paragraph (b)(1)(i)(C) of this section
no greater than 30.
(2) The State must apply the risk ratio threshold or thresholds
determined in paragraph (b)(1) of this section to risk ratios or
alternate risk ratios, as appropriate, in each category described in
paragraphs (b)(3) and (4) of this section and the following racial and
ethnic groups:
(i) Hispanic/Latino of any race; and, for individuals who are non-
Hispanic/Latino only;
(ii) American Indian or Alaska Native;
(iii) Asian;
(iv) Black or African American;
(v) Native Hawaiian or Other Pacific Islander;
(vi) White; and
(vii) Two or more races.
(3) Except as provided in paragraphs (b)(5) and (c) of this
section, the State must calculate the risk ratio for each LEA, for each
racial and ethnic group in paragraph (b)(2) of this section with
respect to:
(i) The identification of children ages 3 through 21 as children
with disabilities; and
(ii) The identification of children ages 3 through 21 as children
with the following impairments:
(A) Intellectual disabilities;
(B) Specific learning disabilities;
(C) Emotional disturbance;
(D) Speech or language impairments;
(E) Other health impairments; and
(F) Autism.
(4) Except as provided in paragraphs (b)(5) and (c) of this
section, the State must calculate the risk ratio for each LEA, for each
racial and ethnic group in paragraph (b)(2) of this section with
respect to the following placements into particular educational
settings, including disciplinary removals:
(i) For children with disabilities ages 6 through 21, inside a
regular class less than 40 percent of the day;
(ii) For children with disabilities ages 6 through 21, inside
separate schools and residential facilities, not including homebound or
hospital settings, correctional facilities, or private schools;
(iii) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of 10 days or fewer;
(iv) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of more than 10 days;
(v) For children with disabilities ages 3 through 21, in-school
suspensions of 10 days or fewer;
(vi) For children with disabilities ages 3 through 21, in-school
suspensions of more than 10 days; and
(vii) For children with disabilities ages 3 through 21,
disciplinary removals in total, including in-school and out-of-school
suspensions, expulsions, removals by school personnel to an interim
alternative education setting, and removals by a hearing officer.
(5) The State must calculate an alternate risk ratio with respect
to the categories described in paragraphs (b)(3) and (4) of this
section if the comparison group in the LEA does not meet the minimum
cell size or the minimum n-size.
(6) Except as provided in paragraph (d) of this section, the State
must identify as having significant disproportionality based on race or
ethnicity under Sec. 300.646(a) and (b) any LEA that has a risk ratio
or alternate risk ratio for any racial or ethnic group in any of the
categories described in paragraphs (b)(3) and (4) of this section that
exceeds the risk ratio threshold set by the State for that category.
(7) The State must report all risk ratio thresholds, minimum cell
sizes, minimum n-sizes, and standards for measuring reasonable progress
selected under paragraphs (b)(1)(i)(A) through (D) of this section, and
the rationales for each, to the Department at a time and in a manner
determined by the Secretary. Rationales for minimum cell sizes and
minimum n-sizes not presumptively reasonable under paragraph (b)(1)(iv)
of this section must include a detailed explanation of why the numbers
chosen are reasonable and how they ensure that the State is
appropriately analyzing and identifying LEAs with significant
disparities, based on race and ethnicity, in the identification,
placement, or discipline of children with disabilities.
(c) Exception. A State is not required to calculate a risk ratio or
alternate risk ratio, as outlined in paragraphs (b)(3), (4), and (5) of
this section, to determine significant disproportionality if:
(1) The particular racial or ethnic group being analyzed does not
meet the minimum cell size or minimum n-size; or
(2) In calculating the alternate risk ratio under paragraph (b)(5)
of this section, the comparison group in the State does not meet the
minimum cell size or minimum n-size.
(d) Flexibility. A State is not required to identify an LEA as
having significant disproportionality based on race or ethnicity under
Sec. 300.646(a) and (b) until--
(1) The LEA has exceeded a risk ratio threshold set by the State
for a racial or ethnic group in a category described in paragraph
(b)(3) or (4) of this section for up to three prior consecutive years
preceding the identification; and
(2) The LEA has exceeded the risk ratio threshold and has failed to
demonstrate reasonable progress, as determined by the State, in
lowering the risk ratio or alternate risk ratio for the group and
category in each of the two prior consecutive years.
(Authority: 20 U.S.C. 1418(d).)
[FR Doc. 2016-30190 Filed 12-16-16; 8:45 am]
BILLING CODE 4000-01-P