[Federal Register Volume 81, Number 41 (Wednesday, March 2, 2016)]
[Proposed Rules]
[Pages 10968-10998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03938]
[[Page 10967]]
Vol. 81
Wednesday,
No. 41
March 2, 2016
Part II
Department of Education
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34 CFR Part 300
Assistance to States for the Education of Children With Disabilities;
Preschool Grants for Children With Disabilities; Proposed Rules
Federal Register / Vol. 81 , No. 41 / Wednesday, March 2, 2016 /
Proposed Rules
[[Page 10968]]
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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: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend 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 in IDEA, the regulations
would 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 such services for children from age 3
through grade 12, with and without disabilities.
DATES: We must receive your comments on or before May 16, 2016.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by email or those submitted after the comment
period. To ensure that we do not receive duplicate copies, please
submit your comments only once. In addition, please include the Docket
ID at the top of your comments.
If you are submitting comments electronically, we strongly
encourage you to submit any comments or attachments in Microsoft Word
format. If you must submit a comment in Adobe Portable Document Format
(PDF), we strongly encourage you to convert the PDF to print-to-PDF
format or to use some other commonly used searchable text format.
Please do not submit the PDF in a scanned format. Using a print-to-PDF
format allows the U.S. Department of Education (the Department) to
electronically search and copy certain portions of your submissions.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for finding a rule on the site
and submitting comments, is available on the site under ``How to use
Regulations.gov'' in the Help section.
Postal Mail, Commercial Delivery, or Hand Delivery:
The Department strongly encourages commenters to submit their
comments electronically. However, if you mail or deliver your comments
about these proposed regulations, address them to Kristen Harper, U.S.
Department of Education, 550 12th Street SW., Room 5109A, Potomac
Center Plaza, Washington, DC 20202-2600.
Privacy Note: The Department's policy is to make all comments
received from members of the public available for public viewing in
their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to
include in their comments only information that they wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: Kristen Harper, U.S. Department of
Education, 550 12th Street SW., Room 5109A, Potomac Center Plaza,
Washington, DC 20202-2600. Telephone: (202) 245-6109.
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 proposed
regulations is to promote equity in IDEA. The specific purposes are to
(1) help ensure States appropriately identify significant
disproportionality based on race and ethnicity in the State and LEAs of
the State with regard to identification of children as children with
disabilities, the placement of children in particular educational
settings, and the incidence, duration, and type of disciplinary actions
(including suspensions and expulsions); and (2) help States and LEAs
address and reduce significant disproportionality in the State and the
LEAs identified. Specifically, the proposed 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
due to disciplinary removals. These proposed regulations specifically
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. At the same time, there have been significant improvements
in the provision of special education, particularly with regard to
placing children in general education classrooms with appropriate
supports and services, and a commitment to instruction tied to college-
and career-ready standards for all children, all of which should play a
positive role in improving student outcomes. Therefore, the intention
of these proposed regulations is not to limit services for children
with disabilities who need them; rather, their purpose is to ensure
that children are not mislabeled and receive appropriate services.
To accomplish this end, these proposed regulations would 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. IDEA does not define
``significant disproportionality,'' and, in the Department's August
2006 IDEA Part B regulations, the Department left the matter to the
discretion of the States. Since then, States have adopted different
methodologies, and, as a result, far fewer LEAs are identified as
having significant disproportionality than the disparities in rates of
identification, placement, and disciplinary removal across racial and
ethnic groups would suggest. 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.
[[Page 10969]]
Further, these proposed regulations would clarify ambiguities in
the existing regulations concerning significant disproportionality in
the discipline of children with disabilities. Data and research show
that children of color with disabilities are more likely to be
suspended and expelled than white children with disabilities, and that
suspensions are associated with negative student outcomes such as lower
academic performance, higher rates of dropout, failures to graduate on
time, decreased academic engagement, future disciplinary exclusion, and
interaction with the juvenile justice system. (Lamont et al, 2013;
Council of State Governments, 2011; Lee, Cornell, Gregory, & Xitao,
2011; Losen and Skiba, 2010; Brooks, Shiraldi & Zeidenberg, 2000; Civil
Rights Project, 2000.)
In order to improve the review of LEA policies, practices, and
procedures when significant disproportionality is found, the Department
is also proposing to clarify IDEA's requirements regarding their review
and, when appropriate, revision.
Finally, to help address and reduce significant disproportionality
when it is found in an LEA, the proposed regulations would expand the
scope of and strengthen the remedies required under IDEA. Under section
618(d) of IDEA (20 U.S.C. 1418(d)), if a State determines that
significant disproportionality is occurring in an LEA, the State must
require the LEA to reserve the maximum amount of funds to provide
comprehensive CEIS to serve children in the LEA, particularly children
in those racial or ethnic groups that were significantly
overidentified. The proposed regulations would require that LEAs
identify and address the factors contributing to significant
disproportionality as part of the implementation of comprehensive CEIS
and would expand the authorized use of funds reserved for these
services to serve children from age 3 through grade 12, with and
without disabilities.
Please refer to the Background section of this notice of proposed
rulemaking for a detailed discussion of these proposals and their
purposes.
Summary of the Major Provisions of This Regulatory Action
As described below, the proposed regulations would require States
to use a standard methodology to identify significant
disproportionality in the State and in its LEAs, including the use of:
A risk ratio or, if appropriate given the populations in an LEA, an
alternate risk ratio; a reasonable risk ratio threshold; and a minimum
cell size of not more than 10 as the standard methodology to determine
whether there is significant disproportionality based on race or
ethnicity in the State and its LEAs.
States would retain 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. States would set
risk ratio thresholds for three categories of analysis:
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 IDEA;
The placement of children with disabilities in particular
educational settings; and
The incidence, duration, and type of disciplinary actions,
including suspensions and expulsions.
These regulations would also provide States with flexibility in
determining whether significant disproportionality exists, even if a
risk ratio exceeds the risk ratio threshold established by the State.
States have the flexibility to choose to identify an LEA as having
significant disproportionality only after an LEA exceeds a risk ratio
threshold for up to three prior consecutive years. In addition, a State
need not identify an LEA with significant disproportionality if the LEA
is making reasonable progress in lowering its risk ratios, where
reasonable progress is determined by the State.
The proposed regulations would clarify that States must address
significant disproportionality in the incidence, duration, and type of
disciplinary actions of children with disabilities, including
suspensions and expulsions, using the same statutory remedies required
to address significant disproportionality in the identification and
placement of children with disabilities.
Under these proposed regulations, States would also have to provide
for the review and, if appropriate, revision of an LEA's policies,
practices, and procedures used in the identification or placement of
children with disabilities in every year in which an LEA is determined
to have significant disproportionality based upon race or ethnicity.
Reporting of any revisions to an LEA's policies, practices, and
procedures would have to comply with the confidentiality provisions of
FERPA, its implementing regulations in 34 CFR part 99, and section
618(b)(1) of IDEA.
Finally, the proposed regulations would expand the student
populations that may receive comprehensive CEIS when an LEA has been
identified with significant disproportionality. Funds reserved for
these services under section 618(d)(2)(B) of IDEA (20 U.S.C.
1418(d)(2)(B)) could be used to serve children from age 3 through grade
12, with and without disabilities. Under current regulation,
comprehensive CEIS may only serve children without disabilities, from
kindergarten through grade 12. The proposed regulations would also
require that, as part of implementing these services, an LEA must
identify and address the factors contributing to the significant
disproportionality.
The Department also intends to monitor and assess these regulations
once they are final to ensure they have the intended goal of improving
outcomes for all children. To that end, the Department will publicly
establish metrics by which to assess the impact of the regulations.
These might include a comparison of risk ratios to national averages
and across States. We welcome public comment on appropriate metrics to
use to monitor these regulations.
Please refer to the Significant Proposed Regulations section of
this notice of proposed rulemaking for a detailed discussion of these
proposals.
Costs and Benefits
As further detailed in the Regulatory Impact Analysis, we estimate
that the total cost of these regulations over ten years would be
between $47.5 and $87.18 million, plus additional transfers between
$298.4 and $552.9 million. The major benefits of these proposed
regulations, taken as a whole, include ensuring a standard methodology
for determining significant disproportionality based on race and
ethnicity in the State and the LEAs in the State with regard to
identification of children as children with disabilities, the placement
of children in particular educational settings, and the incidence,
duration, and type of disciplinary actions, including suspensions and
expulsions; ensuring increased transparency on each State's definition
of significant disproportionality; establishing an increased role for
stakeholders through State Advisory Panels in determining States' risk
ratio thresholds; 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, and the incidence,
duration, and type of disciplinary removals from
[[Page 10970]]
placements, including suspensions and expulsions; and promoting and
increasing comparability of data across States in relation to the
identification, placement, or 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 flexibility to use IDEA Part
B 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 such children at a
later date.
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations and directed questions. To ensure that your
comments have maximum effect in developing the final regulations, we
urge you to identify clearly the specific section or sections of the
proposed regulations that each of your comments addresses and to
arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866 and 13563 and their overall
requirement of reducing regulatory burden that might result from these
proposed regulations. Please let us know of any further ways we could
reduce potential costs or increase potential benefits while preserving
the effective and efficient administration of the Department's programs
and activities.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You also may inspect the comments in person in Room 5109A, Potomac
Center Plaza, 550 12th Street SW., Washington, DC, between the hours of
8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of
each week except Federal holidays. Please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background
IDEA Requirements Regarding Racial and Ethnic Disparities
Under IDEA Part B, the Department provides grants to States,
outlying areas, and freely associated States, as well as funds to the
Department of the Interior, to assist them in providing special
education and related services to children with disabilities. There are
four key purposes of the Part B regulations in 34 CFR part 300: (1) To
ensure that all children with disabilities have available to them a
free appropriate public education (FAPE) that emphasizes special
education and related services designed to meet their unique needs and
prepares them for further education, employment, and independent
living; (2) to ensure that the rights of children with disabilities and
their parents are protected; (3) to assist States, localities,
educational service agencies, and Federal agencies in providing for the
education of all children with disabilities; and (4) to assess and
ensure the effectiveness of efforts to educate children with
disabilities.
The overrepresentation of children from racial, cultural, ethnic,
and linguistic minority backgrounds in special education programs has
been a national concern for four decades. (Donovan & Cross, 2002.) When
children of color are identified as children with disabilities at
substantially higher rates than their peers, there is a strong concern
that some of these children may have been improperly identified as
children with disabilities, to their detriment. Misidentification
interferes with a school's ability to provide children with appropriate
educational services. (Albrecht, Skiba, Losen, Chung & Middleberg,
2012.) The overidentification of children of color in special
education, in particular, raises concerns of potential inequities in
both educational opportunities and outcomes. Overidentification may
differentially diminish the opportunities of children of color to
interact with teachers and others within the larger school context,
especially when education is provided in separate settings. Research
has found that African American, Hispanic/Latino, and American Indian/
Alaska Native children and English language learners have a greater
chance of receiving placements in separate educational settings than do
their peers. (De Valazuela, Copeland, Huaqing Qi, and Park, 2006.)
Nationally, Black/African-American, Asian, and Native Hawaiian and
Other Pacific Islander children with disabilities (ages 6 through 21)
were less likely than their White peers to be inside the regular
classroom 80 percent or more of the day (56 percent, 57 percent, 54
percent, and 65 percent, respectively) during the 2012-2013 school year
(SY). (36th Annual Report to Congress, 2014.)
In issuing these proposed regulations, the Department's goal is to
promote equity in IDEA. We want to be clear that our intention is not
to deny special education services to children who need them. It is,
however, to ensure that children who need special education services
receive them in the least restrictive settings. It is also to ensure
that children who do not have disabilities and do not need special
education services are not inappropriately identified as such, and to
ensure that those children receive proper educational supports through
the general education system.
Congress first addressed racial and ethnic disparities in
identification for special education in the IDEA Amendments of 1997
(1997 Amendments). It found that ``[g]reater efforts are needed to
prevent the intensification of problems connected with mislabeling and
high dropout rates of minority children with disabilities,'' Public Law
105-17, section 601(c)(8)(A) (1997), codified at 20 U.S.C.
1400(c)(12)(A), and noted that ``more minority children continue to be
served in special education than would be expected from the percentage
of minority students in the general education population.'' Public Law
105-17, section 601(8)(B)(1997), codified at 20 U.S.C. 1400(c)(12)(B).
The 1997 Amendments added the requirement that States collect and
examine data to determine if significant disproportionality based on
race was occurring in the identification and placement of children with
disabilities. Public Law 105-17, section 618(c)(1) (1997). If States
found significant disproportionality, Congress required them to review,
and, if appropriate, revise the policies, practices, and procedures
used in identification and placement. Public Law 105-17, section
618(c)(2) (1997).
In 2004, Congress again found that greater efforts were needed to
address misidentification of children of color with disabilities, and
it specifically found that ``African-American children are identified
as having [intellectual disabilities] or emotional disturbance at rates
greater than their White counterparts;'' that ``[i]n the 1998-1999
[[Page 10971]]
school year, African-American children represented just 14.8 percent of
the population aged 6 through 21, but comprised 20.2 percent of all
children with disabilities;'' and that ``[s]tudies have found that
schools with predominately White students and teachers have placed
disproportionately high numbers of minority students into special
education.'' Public Law 108-446, section 601(c)(12) (2004), codified at
20 U.S.C. 1400(c)(12)(C)-(E).
Accordingly, in the Individuals with Disabilities Education
Improvement Act of 2004, Congress expanded the provision on significant
disproportionality in four respects: (1) Added ``ethnicity'' to section
618(d)(1) as a basis upon which to determine significant
disproportionality (in addition to race); (2) added section
618(d)(1)(C) to require that States determine if significant
disproportionality is occurring with respect to the incidence,
duration, and type of disciplinary actions, including suspensions and
expulsions; (3) added section 618(d)(2)(B) to require the mandatory use
of funds for comprehensive CEIS; and (4) added 618(d)(2)(C) to require
that LEAS publicly report on the revision of policies, practices, and
procedures.
In addition to changes to the significant disproportionality
provision in section 618(d) of IDEA, Congress added a requirement that
States, using quantifiable indicators, monitor LEAs for
disproportionate representation of racial and ethnic groups in special
education and related services that is the result of inappropriate
identification. Public Law 108-446, section 616(a)(3)(C)(2004),
codified at 20 U.S.C. 1416(a)(3).
As such, IDEA currently requires each State to collect and examine
data to determine if significant disproportionality based on race and
ethnicity is occurring in the State and its LEAs in any of three
categories of analysis:
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 IDEA (identification);
The placement of children with disabilities in particular
educational settings (placement); and
The incidence, duration, and type of disciplinary actions,
including suspensions and expulsions (disciplinary removals).
Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)).
If a State determines that an LEA has significant
disproportionality based on race and ethnicity with respect to
identification or placement, then the State must: (1) Provide for the
review and, if appropriate, revision of policies, practices, and
procedures used in the identification or placement to ensure that its
policies, practices, and procedures comply with the requirements of
IDEA; (2) require any LEA identified with significant
disproportionality to reserve the maximum amount of funds under section
613(f) of IDEA (20 U.S.C. 1413(f)) to provide comprehensive CEIS to
serve children in the LEA, particularly children in those groups that
were significantly overidentified; and (3) require the LEA to publicly
report on the revision of those policies, practices, and procedures.
Section 618(d)(2) of IDEA (20 U.S.C. 1418(d)(2)). These requirements
are separate and distinct from the requirement that States report in
their State Performance Plans/Annual Performance Reports on the percent
of LEAs with disproportionate representation of racial and ethnic
groups in special education and related services that is the result of
inappropriate identification. Section 616(a)(3)(C) of IDEA; 20 U.S.C.
1416(a)(3)(C); Sec. 300.600(d)(3).
Finally, section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)) allows
LEAs to voluntarily use up to 15 percent of their IDEA Part B funds
(less any reduction by the LEA in local expenditures for the education
of children with disabilities pursuant to Sec. 300.205) to develop and
implement CEIS,\1\ which may include interagency financing structures,
for children in kindergarten through grade 12 (with a particular
emphasis on children in kindergarten through grade three) 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.
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\1\ For the sake of clarity and consistency, we refer to
``comprehensive CEIS'' when an LEA provides coordinated early
intervening services by mandate under section 618(d)(2)(B) (20
U.S.C. 1418(d)(2)(B)). When an LEA voluntarily provides these
services under section 613(f) (20 U.S.C. 1413(f)), we refer to them
as ``CEIS.''
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It is against this background that the Department issues this
notice of proposed rulemaking (NPRM) to require a standard methodology
for States to use in identifying significant disproportionality on the
basis of race and ethnicity in the State and the LEAs of the State and
to strengthen the statutory remedies whenever LEAs are identified.
There are four parts to the Department's proposal: A standard
methodology that States must use to determine significant
disproportionality; a clarification that the statutory remedies apply
to disciplinary removals; a clarification that the review and revision
of policies, practices, and procedures occur every year and be
consistent with the Family Education Rights and Privacy Act (FERPA) (20
U.S.C. 1232g) and its implementing regulations in 34 CFR part 99 and
section 618(b)(1) of IDEA; and an expansion of the allowable and
required uses of IDEA Part B funds for comprehensive CEIS.
I. Establishing a Standard Methodology States Must Use To Determine
Significant Disproportionality
A. Definitions of Significant Disproportionality
Neither IDEA nor its implementing regulations in 34 CFR part 300
define the term ``significant disproportionality.'' While section
607(a) of IDEA (20 U.S.C. 1406(a)) explicitly authorizes the Department
to issue regulations to ensure compliance with the statute, the
Department has previously left the matter to the States. In the
preamble to the 2006 IDEA Part B regulations, we 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
general. Therefore, in identifying significant disproportionality, a
State may determine statistically significant levels.'' 71 FR 46540,
46738 (Aug. 14, 2006).
Thereafter, in Office of Special Education Programs (OSEP)
Memorandum 07-09, April 24, 2007, the Office of Special Education and
Rehabilitative Services (OSERS) stated that ``[w]ith one important
caveat, each State has the discretion to define what constitutes
significant disproportionality for the LEAs in the State and for the
State in general. The caveat is that a State's definition of
`significant disproportionality' needs to be based on an analysis of
numerical information and may not include considerations of the State's
or LEA's policies, practices, and procedures.''
The Department, in short, has historically afforded States
discretion in establishing methodologies for identifying significant
disproportionality. States, in turn, have adopted a range of
methodologies, including different methods for calculating disparities
between racial and ethnic groups, different considerations for the
duration of those
[[Page 10972]]
disparities, and different mechanisms for excluding LEAs from any
determination of whether significant disproportionality exists.
B. The 2013 GAO Study on Racial and Ethnic Overrepresentation in
Special Education
In February 2013, the Government Accountability Office (GAO) issued
a study entitled ``INDIVIDUALS WITH DISABILITIES EDUCATION ACT--
Standards Needed to Improve Identification of Racial and Ethnic
Overrepresentation in Special Education (GAO-13-137).'' The GAO found
that, in SY 2010-2011, States required about two percent of all school
districts that received IDEA funding to use 15 percent of IDEA Part B
funds for comprehensive CEIS to address significant disproportionality
on the basis of race and ethnicity. Of a total of more than 15,000
districts nationwide, only 356 LEAs (roughly two percent of LEAs) were
required to provide comprehensive CEIS. The GAO found that ``the
discretion that States have in defining significant disproportionality
has resulted in a wide range of definitions that provides no assurance
that the problem is being appropriately identified across the nation.''
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.)
C. Actions Taken by the Department Since the GAO Study
Like the GAO, the Department is concerned that the wide range of
methodologies used to determine significant disproportionality creates
significant challenges in assessing whether the problem of racial and
ethnic disparities is being addressed. In fact, based on data collected
by the Department's OSEP and Office for Civil Rights, the Department is
concerned that many States are not identifying LEAs with large
disparities in identification, placement, and discipline, thereby
depriving a number of children of the remedies enumerated in statute,
including comprehensive CEIS, for populations who are overidentified.
Accordingly, in recent years the Department has taken a number of steps
intended to address this problem.
In a report to the President published in May 2014, the My
Brother's Keeper Task Force identified disparities in special education
as a significant challenge that should be addressed. In June 2014, the
Department published a request for information (RFI) inviting public
comment on the GAO's recommendation that the Department adopt a
standard methodology for determining significant disproportionality. 79
FR 35154 (June 19, 2014).
The 95 commenters responding to the RFI generally fell into two
broad categories: Civil rights and advocacy organizations, and SEA
representatives. For the most part, civil rights and advocacy
organizations strongly urged the Department to require a standard
methodology that would offer States flexibility and at the same time
decrease inter-State variability in methodologies for determining
significant disproportionality. Most SEA representatives, in contrast,
did not support the adoption of a standard methodology and asserted
that a single methodology would be unlikely to fit the circumstances of
different States.
SEA representatives also noted that there are a large number of
districts in the country that vary greatly in population, number of
children served, geographic size, student needs, per pupil
expenditures, and range of services offered. These commenters noted
that some States have established ``intermediate school districts''
that only serve children with disabilities and that there is a high
incidence of disability among children in some communities because of
environmental factors. These commenters argued that, in such instances,
a standard methodology for determining significant disproportionality
might unintentionally identify LEAs that have disparities in enrollment
rather than LEAs that actually have disparities based on race and
ethnicity in the identification, placement, or disciplinary removal of
children with disabilities.
Other commenters argued that comprehensive CEIS (as outlined in the
current regulations) may be ineffective as a tool to address
significant disproportionality, since States often identify the same
LEAs every year even after comprehensive CEIS has been employed. One
commenter, representing an SEA, stated that clearer guidance regarding
appropriate uses of funds for comprehensive CEIS would support more
widespread implementation of multi-tiered systems of support. Other
commenters, including an SEA representative and a group representing
special education administrators, noted that States could not presently
use comprehensive CEIS under section 618(d) of IDEA to provide services
and support to children with disabilities even if they represent groups
with significant disproportionality with respect to disciplinary
removal and placement because of the limited population of children
eligible for CEIS in section 613(f) of IDEA.
Finally, the Department also undertook its own review of the State
procedures for identifying LEAs with significant disproportionality. We
reviewed methodologies for the 50 States, the District of Columbia, and
the U.S. Virgin Islands, including whether States used the same or
different methods across the three categories of analysis under section
618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) (identification, placement,
and disciplinary removal).\2\ Additional information regarding the
various methodologies currently in use is available in the IDEA Data
Center's Methods for Assessing Racial/Ethnic Disproportionality in
Special Education: A Technical Assistance Guide (Revised), published at
https://ideadata.org/files/resources/54480c2b140ba0665d8b4569/54c90646150ba0e04f8b457c/idc_ta_guide_for_508-051614/2015/01/28/idc_ta_guide_for_508-051614.pdf. We examined the results of the States'
various methodologies for determining significant disproportionality by
reviewing the LEAs identified based on the SY 2012-2013 IDEA section
618 data. We also analyzed data on the rates of identification,
placement, and disciplinary removals submitted by the States under
section 618. Further, we conducted a review of research to better
understand the extent and nature of racial and ethnic disparities in
special education. Through these efforts, the Department found the
following.
---------------------------------------------------------------------------
\2\ As part of the SY 2013-2014 State Supplement Survey (SSS),
each State was required to submit to the Department the methodology
it uses to determine significant disproportionality.
---------------------------------------------------------------------------
1. Risk Ratio Is the Most Common Method of Determining Significant
Disproportionality
At the time of our review, 45 States used one or more forms of the
risk ratio method to determine significant disproportionality. As there
are a
[[Page 10973]]
number of different ways to calculate risk ratios for the purpose of
identifying significant disproportionality, as well as alternatives to
the risk ratio method, we provide an overview and background on how
States are identifying LEAs with significant disproportionality.
``Standard'' Risk Ratio
The ``standard'' risk ratio method compares the likelihood, or
``risk,'' that children in a particular racial or ethnic group in an
LEA will be identified for special education and related services to
the likelihood that children in a comparison group, usually all other
children in the LEA, will be identified for special education and
related services. For example, if an LEA serves 100 Black/African-
American children and 15 of them are identified as being a student with
a disability, the ``risk'' for Black/African-American children to be
identified as a student with a disability would be 15 percent (15/100 =
15 percent). A risk ratio would then compare this ``risk'' for Black/
African-American children to the ``risk'' for all non-Black/African-
American children in the LEA. A risk ratio calculation can also be used
to compare the relative risk of placement in a particular setting or
disciplinary removal. (Bollmer, Bethel, Garrison-Morgan & Brauen,
2007.) At the time of our review, 21 States used the ``standard'' form
of the risk ratio method.
Generally, a risk ratio of 1.0 indicates that children in a given
racial or ethnic group are no more likely than children from all other
racial or ethnic groups to be identified for special education and
related services, be identified with a particular impairment, be placed
in a particular educational setting, or face disciplinary removals from
placement. A risk ratio greater than 1.0 indicates that the risk for
the racial or ethnic group is greater than the risk for the comparison
group. Accordingly, a risk ratio of 2.0 indicates that one group is
twice as likely as other children to be identified, placed, or
disciplined in a particular way; a risk ratio of 3.0 indicates that one
group is three times as likely as other children to be identified,
placed, or disciplined in a particular way; etc.
For example, consider an LEA that serves 5,000 children, 1,000 of
whom are Black/African-American. In total, there are 450 children with
disabilities in the LEA, 150 of whom are Black/African-American. As
such, the likelihood, or ``risk,'' of any particular Black/African-
American student in the LEA being identified as having a disability is
15 percent (150 Black/African-American children with disabilities/1000
Black/African-American children in the LEA * 100 = 15 percent). The
likelihood of any non-Black/African-American student in the LEA being
identified as having a disability is 7.5 percent (300 non-Black/
African-American children with disabilities/4,000 non-Black/African-
American children in the LEA * 100 = 7.5 percent). As such, in the
standard version of the calculation, the risk ratio for Black/African-
American children being identified as children with disabilities in
this LEA would be 2.0 (15 percent of Black/African-American children
identified with disabilities/7.5 percent of non-Black/African-American
children with disabilities = 2.0).
Table 1--Example Standard Risk Ratio Calculation for Identification of Black/African-American Children in an LEA
----------------------------------------------------------------------------------------------------------------
Black/African-American Non-Black/African-American
children children Total children
----------------------------------------------------------------------------------------------------------------
Children with disabilities.............. 150....................... 300....................... 450
All children (with and without 1,000..................... 4,000..................... 5,000
disabilities).
Risk.................................... 150/1,000 = 15 percent.... 300/4,000 = 7.5 percent... N/A
Risk ratio.............................. 15 percent/7.5 percent = N/A....................... N/A
2.0.
----------------------------------------------------------------------------------------------------------------
Risk ratios provide little information regarding racial and ethnic
disparities when the risk to a racial or ethnic group of interest is
zero. In this last example, if zero Black/African-American children
were identified with a disability, and the risk to non-Black/African-
American children remained at 7.5 percent, the risk ratio for Black/
African-American children being identified as children with
disabilities would be zero (0/7.5 percent). This ratio would remain
zero, irrespective of the risk to non-Black/African-American children,
despite the appearance of some disparity in identification of non-
Black/African-American children. While a risk ratio of zero is a fully
valid and reasonable result of these calculations, it cannot, in the
absence of other information, provide context about the gaps in
identification rates across racial or ethnic groups.
Further, risk ratios cannot be calculated when the risk to a
comparison group is zero, or when there are no children in a comparison
group. In the above scenario, if the risk of identification for Black/
African-American children remains at 15 percent, but the risk to non-
Black/African-American children is zero, the State cannot calculate a
risk ratio for the identification of Black/African-American children
because it is not possible to divide a number by zero (15 percent
divided by 0 is undefined). The result would be the same if there were
no non-Black/African-American children in the LEA, though the issue
would arise one step earlier in the calculation of the risk for non-
Black/African-American children rather than in the calculation of the
risk ratio itself.
Alternate Risk Ratio
The use of the alternate risk ratio is one method for calculating
risk ratios when there is an insufficient number of children in the
comparison group at the LEA level to provide meaningful results (e.g.,
an LEA in which there are only 5 non-White children). (Bollmer et al.
2007.) Seven states use the alternate risk ratio method to compare the
risk of a subgroup in the LEA to the risk of all other subgroups in the
State.
For example, consider an LEA that serves 500 children, including
495 American Indian/Alaska Native children. We assume that the LEA
serves 100 children with disabilities and only one of them is not
American Indian/Alaska Native. We could calculate a risk for American
Indian/Alaska Native children by dividing the number of American
Indian/Alaska Native children identified as children with disabilities
(99) by the total number of American Indian/Alaska Native children in
the LEA (495) and determine a risk of 20 percent (99/495 = 20 percent).
However, when we attempt to calculate the ``risk'' for non-American
Indian/Alaska Native children, we notice that the total number of non-
American Indian/Alaska Native children in the LEA (5) is sufficiently
small that it is unlikely to generate stable risk calculations from
year to year in the comparison group. As such, we need to use an
alternate risk ratio calculation for non-American
[[Page 10974]]
Indian/Alaska Native children. In this case, States would look at what
the State-wide risk is for non-American Indian/Alaska Native children.
In this example, we will assume the State-wide risk for non-American
Indian/Alaska Native children is 15 percent. We then compare the risk
for American Indian/Alaska Native children in the LEA to the risk for
non-American Indian/Alaska Native children Statewide to calculate the
``alternate risk ratio'' of 1.33 (20 percent/15 percent = 1.33).
Table 2--Example Alternate Risk Ratio Calculation of Identification for American Indian/Alaska Native Children
in an LEA
----------------------------------------------------------------------------------------------------------------
Non-American Indian/ Non-American Indian/
American Indian/ Alaska Alaska Native children Alaska Native children
Native children in LEA in LEA Statewide
----------------------------------------------------------------------------------------------------------------
Children with Disabilities........... 99..................... 1...................... 30,000
All Children (with and without 495.................... 5...................... 200,000
disabilities).
Risk................................. 99/495 = 20 percent.... N/A Below minimum cell 30,000/200,000 = 15
size. percent
Alternate Risk Ratio................. 20 percent/15 percent = N/A.................... N/A
1.33.
----------------------------------------------------------------------------------------------------------------
Weighted Risk Ratio
Separately, the Department also found that 25 States used a
weighted risk ratio method, which addresses challenges associated with
variances in LEA demographics by using State-level demographics to
standardize LEA-level distributions of race and ethnicity. When using a
weighted risk ratio method, 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 (e.g., if
one racial or ethnic group comprises only five percent of children
Statewide, the risk for that racial or ethnic group in each LEA will
only comprise five percent of the calculated risk for the other
groups). Stated mathematically, the weighted risk ratio is calculated
as follows:
[GRAPHIC] [TIFF OMITTED] TP02MR16.000
where Ra is the LEA-level risk for racial or ethnic group a
and pa is the State-level proportion of children from racial
or ethnic group a. Rn is the LEA-level risk for the n-th
racial or ethnic group and pn is the State-level proportion
of children from the n-th racial or ethnic group.
For example, consider a State with a population of school children
that is 70 percent White, 10 percent Hispanic/Latino, and 20 percent
Black/African-American. Within that State, LEA A has 10,000 children
and very different demographics--1,000 White children, 8,000 Hispanic/
Latino children, and 1,000 Black/African-American children. Of them, 20
White children (2 percent), 80 Hispanic/Latino children (1 percent),
and 50 Black/African-American children (5 percent) are identified for
special education and related services. In order to calculate the
weighted risk ratio, the State would first weight the risks for the
various racial or ethnic groups in the LEA by the proportion of total
students Statewide that are in the same racial or ethnic group. They
would then divide the weighted risks similar to the procedure in the
standard risk ratio. The weighted risk ratio of identification for
White children in the LEA is 0.55. The standard risk ratio, however, is
1.38.
In LEA B, where demographics are more similar to the State--8,000
White children, 1,000 Hispanic/Latino children, and 1,000 Black/
African-American children--and the risk of identification for each
group is the same as in LEA A (there are 160 White children, 10
Hispanic/Latino children, and 50 Black/African-American children with
disabilities), the standard risk ratio of identification for White
children is 0.67. However, the weighted risk ratio for LEA B would be
0.55, same as LEA A.
Table 3--Example Standard and Weighted Risk Ratio Calculation of Identification for White Children in Two LEAs
----------------------------------------------------------------------------------------------------------------
Comparison group Comparison Group
(i.e., Hispanic/ (i.e., Hispanic/
White children in Latino and Black/ White children in Latino and Black/
LEA A African- American LEA B African- American
children) in LEA A children) in LEA B
----------------------------------------------------------------------------------------------------------------
Percentage of LEA enrollment.... 10 percent........ 80 percent 80 percent........ 10 percent
Hispanic/Latino; Hispanic/Latino;
10 percent Black/ 10 percent Black/
African-American. African-American.
Number of children.............. 1000.............. 8000 Hispanic/ 8000.............. 1000 Hispanic/
Latino + 1000 Latino + 1000
Black/African- Black/African-
American = 9000. American = 2000.
Number of children with a 20................ 80 Hispanic/Latino 160............... 10 Hispanic/Latino
disability. + 50 Black/ + 50 Black/
African-American African-American
= 130. = 60.
Risk............................ 20/1000 = 2 (80 + 50)/(8000 + 160/8000 = 2 (10 + 50)/(1000 +
percent. 1000) = 1.4 percent. 1000) = 3
percent. percent.
Risk ratio...................... 2 percent/1.4 Not applicable.... 2 percent/3 Not applicable.
percent = 1.38. percent = 0.67.
Weighted risk \a\............... (20/1000) x (1 - For Hispanic/ (160/8000) x (1 - For Hispanic/
0.7) = 0.6 Latino (80/8000) 0.7) = 0.60 Latino (10/1000)
percent. x 0.1 = 0.1 percent. x 0.1 = 0.1
percent. percent.
For Black/African- For Black/African-
American (50/ American (50/
1000) x 0.2 = 1 1000) x 0.2 = 1
percent. percent.
[[Page 10975]]
Weighted risk ratio............. 0.6 percent/(0.1 Not applicable.... 0.6 percent/(0.1 Not applicable.
percent + 1 percent + 1
percent) = 0.55. percent) = 0.55.
----------------------------------------------------------------------------------------------------------------
\a\ Assumes racial and ethnic representation at the State level is 70 percent White, 10 percent Hispanic/Latino,
and 20 percent Black/African-American.
Risk Difference
Fewer than five States use the risk difference method, which is
similar to the risk ratio method in approach and simplicity. While both
compare the risk for a racial or ethnic group of interest to the risk
for a comparison group (generally, children in all other racial and
ethnic groups in the LEA), the risk difference method provides a
percentage point difference between the two risks, while the risk ratio
method provides a quotient. For example, in an LEA where 15 percent of
Black/African-American children are identified with emotional
disturbance and 10 percent of children in all other racial and ethnic
groups are identified with emotional disturbance, the risk difference
is 5 percentage points.
Table 4--Example Risk Difference Calculation of Discipline for Black/
African-American Children in an LEA
------------------------------------------------------------------------
Black/African- Non-Black/African-
American children American children
------------------------------------------------------------------------
Percent of children suspended 15 percent........ 10 percent.
fewer than 10 days.
Risk Difference................. 15 percent - 10 N/A.
percent = 5
percent.
------------------------------------------------------------------------
The Department found that approximately five States used a
variation of risk difference in which they compared the risk of an
outcome for a racial or ethnic group to the risk of an outcome to a
State, local, or national population.
Difference and Relative Difference in Composition
Fewer than five States use a composition method as part of their
significant disproportionality methodology. The composition method
compares a racial or ethnic group's representation among all children
identified, placed, or disciplined to the racial or ethnic group's
representation in another context, such as LEA enrollment.
Consider, for example, an LEA where American Indian/Alaskan Native
children represent 24 percent of all children with disabilities
suspended or expelled from school for fewer than 10 days in a given
year but only represent 8 percent of the LEA's enrollment. Using the
composition method, a State calculates the difference in composition by
subtracting representation in LEA enrollment (8 percent) from
representation in out-of-school suspensions and expulsions of fewer
than 10 days (24 percent). A positive figure--16 percentage points in
this case--is indicative of overrepresentation.
Table 5--Example Calculations of Difference in Composition for Discipline for American Indian/Alaska Native,
Black/African-American, and White Children in an LEA
----------------------------------------------------------------------------------------------------------------
American Indian/ Black/African-
Alaska Native American White
----------------------------------------------------------------------------------------------------------------
Percent of children suspended fewer than 10 days.......... 24 36 40
Percent of total enrollment............................... 8 32 60
Difference in composition................................. 24 - 8 = +16 36 - 32 = +4 40 - 60 = -20
----------------------------------------------------------------------------------------------------------------
Alternatively, a State may calculate the relative difference in
composition by dividing the representation in LEA enrollment by
representation in out-of-school suspensions and expulsions of fewer
than 10 days (24 percent/8 percent). A number greater than one--3.0 in
this case--is indicative of overrepresentation.
Table 6--Example Calculation of a Relative Difference for Discipline in Composition in an LEA
----------------------------------------------------------------------------------------------------------------
American Indian/ Black/African-
Alaska Native American White
----------------------------------------------------------------------------------------------------------------
Percent of children suspended fewer than 10 days.......... 24 36 40
Percent of total enrollment............................... 8 32 60
Relative difference in composition........................ 24/8 = 3.0 36/32 = 1.1 40/60 = 0.7
----------------------------------------------------------------------------------------------------------------
[[Page 10976]]
2. Most States Use Risk Ratio Thresholds to Differentiate
Disproportionality From Significant Disproportionality
The 45 States using the risk ratio method or one of its variations
define a risk ratio threshold, over which disproportionality is
considered significant. The Department found that the most common risk
ratio threshold used by States was 4.0 (16 States), with 7 States each
using 3.0 or 5.0.
Fewer than five States use the E-formula method to establish
thresholds, which shift based on the size of the LEA analyzed. This
approach can be used to develop thresholds for the risk ratio method,
or for the composition method. (IDEA Data Center 2014.) The E-Formula,
when used with a composition method, is:
[GRAPHIC] [TIFF OMITTED] TP02MR16.001
where A is the percentage of the same ethnic minority group in the LEA
enrollment, N is the total special education enrollment in the LEA, and
E is the maximum percentage (the resulting threshold) of the total
special education enrollment in an LEA allowed for a specific ethnic
minority group. For example, consider a State using a composition
method, analyzing an LEA where 10 percent of the population consists of
Black/African-American children and the total number of children with
disabilities in the LEA is 1,000. Based on the E-formula, the threshold
for that LEA for the identification of Black/African-American children
would be 10.9 percent (i.e., 10 + Sqrt [(100 x 90/1000)] = 10.9). In
this case, a State would find an LEA to have significant
disproportionality if the risk of identification for Black/African-
American children exceeded 10.9 percent. (IDEA Data Center 2014.)
3. Many States Have Minimum Cell Size Requirements
The Department also found that a number of States restrict their
assessment of significant disproportionality to include only those LEAs
that have sufficient numbers of children to generate stable
calculations. When an LEA has a particularly small number of children
in a particular racial or ethnic group, relatively small changes in
enrollment could result in large changes in the calculated risk ratio.
For example, if an LEA identified non-American Indian/Alaska Native
children as being children with disabilities at a rate of 15 percent
and had identified one of its four American Indian/Alaska Native
children as having a disability, its calculated risk ratio would be
1.67 (25 percent divided by 15 percent). However, if one additional
American Indian/Alaska Native student with a disability moved into the
LEA, the risk ratio would increase to 2.67 (40 percent divided by 15
percent). Alternatively, if the American Indian/Alaska Native student
with a disability left the LEA, the risk ratio would decrease to zero.
Given the statutory consequences associated with being identified as
having significant disproportionality, States have sought to minimize
such large variations based on small changes in enrollment.
Overall, 30 States and the District and Columbia reported using
some form of minimum cell size requirement--where the cell is generally
defined as the number of children for the racial or ethnic group of
interest, the number of children in the comparison group, or both--to
accomplish this goal.
Of the States that use minimum cell size requirements, 11 use more
than one cell definition. For example, nine States prescribe minimum
cell sizes for both the number of children with disabilities in the
racial or ethnic group being analyzed and the number of children with
disabilities in the comparison group. That is, if an LEA does not have
a sufficiently large population of children with disabilities in both
the racial and ethnic group of interest and in the comparison group,
the LEA will be excluded from any determination of significant
disproportionality.
Some States define the cell in other ways, including the number of
children enrolled in the LEA in the racial or ethnic group being
analyzed (seven States) and the total number of children with
disabilities enrolled in the district (1 State and the District of
Columbia).
Of the 18 States that use the most common cell size definition--the
number of children with disabilities in the racial or ethnic group
being analyzed--9 States use a minimum cell size of 10 and 4 States use
a minimum cell size of 30.
In general, the use of a minimum cell size will eliminate a certain
number of LEAs from all or parts of a State's analysis. For example, if
a State sets a minimum cell size of 10, any LEA with fewer than 10
children in the particular group being analyzed will be eliminated from
the analysis of significant disproportionality. As the minimum cell
size increases, the number of LEAs eliminated from the analysis also
increases. However, while smaller minimum cell sizes increase the
number of LEAs being analyzed, they also increase the chances that
small changes in enrollment will trigger a finding of significant
disproportionality. (IDEA Data Center, 2014.) Note again the previous
example in which a one-student change in the LEA's enrollment caused a
large increase in the LEA's calculated risk ratio.
4. Many States Use Multiple Years of Data To Determine Significant
Disproportionality
Another way States have identified significant disproportionality
in LEAs with small numbers of children is to identify an LEA only after
its risk ratio is above a certain threshold for a number of consecutive
years (e.g., two or three years). Identifying an LEA as having
significant disproportionality only if it is above a threshold for
multiple, consecutive years is a way of separating LEAs that have high
risk ratios that are statistical anomalies from those in which there
are persistent underlying problems.
For example, LEAs with generally low levels of disproportionality
may experience an unexpectedly high level of disproportionality in one
year due to factors that do not represent the kind of consistent,
underlying problems in identification, placement, or disciplinary
removals that may be addressed through comprehensive CEIS or revisions
to policies, practices, and procedures. LEAs with consistent, high
levels of disproportionality are more likely to need a revision of
policies, practices and procedures, and, potentially, comprehensive
CEIS, to address the underlying factors contributing to those high
levels. (Bollmer, Bethel, Munk & Bitterman, 2014.)
Of the 23 States that use multiple years of data, 13 States require
an LEA to exceed the threshold for three consecutive years before
finding significant disproportionality, while 9 States require 2
consecutive years. One State requires an LEA to exceed the threshold
for four consecutive years prior to making a determination.
5. Low Overall Identification of Significant Disproportionality Across
All States and All Methodologies Used
The Department reviewed the frequency with which States identified
significant disproportionality using IDEA section 618 data, and, during
SY 2012-2013, 28 States and the District of Columbia identified any
LEAs with significant disproportionality. Together, these States
identified 491 LEAs (3 percent of LEAs nationwide), somewhat higher
than the 356 LEAs identified in SY 2010-2011. The majority of the
identified LEAs were in a small number
[[Page 10977]]
of States--75 percent of all identified LEAs were located in seven
States: California (10 percent of all LEAs identified), Indiana (12
percent), Louisiana (16 percent), Michigan (4 percent), New York (16
percent), Ohio (11 percent), and Rhode Island (6 percent). Based on the
Department's Digest of Education Statistics, these seven States
accounted for only 20 percent of all regular school districts \3\ in
the country. (2011-12 and 2012-13.)
---------------------------------------------------------------------------
\3\ Regular school districts include both independent districts
and those that are a dependent segment of a local government.
Independent charter schools and other agencies are not included.
---------------------------------------------------------------------------
Of the States that identified LEAs with significant
disproportionality, the Department determined that 11 States identified
LEAs in only one category of analysis. For example, Alabama, Arkansas,
Connecticut, Delaware, and Virginia only identified significant
disproportionality with respect to identification with a particular
impairment. Only the District of Columbia and four States--Georgia,
Indiana, Mississippi, and New York--identified LEAs with significant
disproportionality in all three categories of analysis.
6. Overrepresentation and Under-Identification of Children of Color in
Special Education
While decades of research, Congress, and GAO have found that the
overrepresentation of children of color among children with
disabilities is a significant problem, some experts and respondents to
the June 2014 RFI have noted that under-identification in special
education is a problem for children of color in a number of
communities. These experts and respondents highlight the possibility
that policies and practices intended to reduce overrepresentation may
exacerbate inequity in special education by reducing access to special
education and related services for children of color. (Morgan, P.L.,
Farkas, G., Hillemeier, M.M., Mattison, R., Maczuga, S., Li, H. & Cook,
M., 2015.) Many of these experts suggest that, when taking into account
differential exposure to various risk factors for disability, there is
little to no evidence of over-identification for special education.
Based on child count data submitted by the States under Section 618
of the IDEA, racial and ethnic minorities are identified as being
children with disabilities at a higher rate than their white peers.
(U.S. Department of Education and U.S. Census Bureau, 2013.) In SY
2012-2013, for example, Black/African-American children were 2.1 times
as likely as all other children to receive special education and
related services for an emotional disturbance. American Indian/Alaska
Native children were 1.8 times more likely than all other racial or
ethnic groups to receive special education and related services for
specific learning disabilities.
At the LEA level, racial and ethnic disparities in special
education are more pronounced. For example, while nationally Black/
African-American children were 2.1 times more likely than their peers
to be identified as having an emotional disability, the Department
found that more than 1,500 individual LEAs identified at least one
racial or ethnic group as having an emotional disability at 3 times or
more the rate of other children in that LEA for 3 or more consecutive
years (SY 2011-2012, SY 2012-2013, and SY 2013-2014).
The rate of identification of children as children with
disabilities varies across racial and ethnic groups both nationally and
locally. However, as noted by numerous researchers, various racial and
ethnic groups may have differential exposure to a number of other risk
factors for disability including, but not limited to, low socioeconomic
status, low birth weight, and lack of health insurance. (Morgan, P.L.,
et al., 2015.)
Morgan, et al., (2015) compared Black/African-American, Hispanic/
Latino, and other children of color to their White peers with respect
to identification for one of five impairments (learning disabilities,
speech or language impairments, intellectual disabilities, health
impairments, and emotional disturbance). After controlling for a number
of covariates, the authors found that children of color were less
likely than otherwise similar White, English-speaking children to be
identified as having disabilities (in some cases, by up to 75 percent).
While this study used nationally representative data from the Early
Childhood Longitudinal Study--Kindergarten (ECLS-K), there were some
limitations to the analysis. The authors studied a single cohort of
children, limiting their ability to detect the impacts of external
effects, such as changes in State or Federal policy, that may have
impacted the findings. Additionally, the study was unable to include
controls for local-level variation (e.g., school to school), which
prior research (Hibel, Farkas, and Morgan 2010) has shown can mitigate
such findings of under-identification.
A separate study examined the influence of school- and district-
level characteristics--specifically racial and ethnic composition and
economic disadvantage--on the likelihood of special education
identification for Black/African-American and Hispanic/Latino children.
(Ramey, 2015.) The author found that, on average, schools and districts
with larger Black/African-American and Hispanic/Latino populations had
lower rates of Black/African-American and Hispanic/Latino children
receiving services under IDEA for emotional disturbances or other
health impairment. Further, the author found that, in less
disadvantaged districts, there is a negative correlation between the
percentage of Black/African-American children in a school and receipt
of IDEA services. On average, Black/African-American children in these
more affluent school districts were less likely to receive IDEA
services as the percentage enrollment of Black/African-American
children' increases. By contrast, the author found no significant
association between Black/African-American enrollment and the
likelihood of receiving IDEA services in more disadvantaged districts.
Based on this review of recent research, and the analysis of child
count data, the Department found clear evidence that overrepresentation
on the basis of race and ethnicity continues to exist at both the
national and local levels. The Department's review of research found
that overrepresentation and under-identification by race and ethnicity
are both influenced by factors such as racial isolation and poverty.
However, research that investigates whether overrepresentation and
under-identification of children of color in special education co-occur
at the local level is inconclusive. The Department has included a
directed question to specifically request public comment on strategies
to prevent the under-identification of children of color in special
education.
At the same time, the review also demonstrates that any effort to
identify significant disproportionality in LEAs should be designed to
ensure that children with disabilities receive the special education
and related services that they need and not create incentives for LEAs
not to identify children as children with disabilities or to place them
in inappropriate educational settings. It is important to do so to
ensure that all children have the opportunity to participate and
succeed in the general education curriculum to the greatest extent
possible.
In addition, variation across States in how they measure and
determine
[[Page 10978]]
significant disproportionality inherently hampers efforts at national
analyses. While all of the methodologies currently being used by States
have strengths and weaknesses, the application of a standard
methodology will help increase our understanding of these effects in
LEAs across the country and may, in time, help strengthen our
understanding of the variations in rates of identification, placement,
and disciplinary removals of children with disabilities of different
racial and ethnic groups while also identifying best practices in
reducing inappropriate practices nationwide.
D. The Proposed Standard Methodology
To determine whether significant disproportionality on the basis of
race and ethnicity is occurring in the State or the LEAs of the State,
the Department proposes to require States to use a standard methodology
that consists of specific methods for calculating racial or ethnic
disparities, specific metrics that the States must analyze for racial
and ethnic disparities, limitations on the minimum cell sizes State may
use to exclude LEAs from any determinations of significant
disproportionality, and specific flexibilities States may consider when
making determinations of significant disproportionality.
Accordingly, to determine significant disproportionality, we
propose to require States to use the risk ratio method or the alternate
risk ratio method (if the total number of children in the comparison
group within the LEA is fewer than 10 or if the risk for the comparison
group is zero, respectively).
We propose that States calculate the risk ratio, or alternate risk
ratio, for each category of analysis using the following long-standing
section 618 data reporting as noted by the Department in OSEP
Memorandum 08-09 (July 28, 2008) and established, following notice and
comment, in OMB-approved data collections 1875-0240 and 1820-0517:
Identification of children ages 3 through 21 as
children with disabilities;
Identification of children ages 3 through 21 as
children with intellectual disabilities, specific learning
disabilities, emotional disturbance, speech or language impairments,
other health impairments, and autism;
Placement, including disciplinary removals from
placement, of:
(1) Children ages 6 through 21 inside a regular class less than
40 percent of the day,
(2) Children ages 6 through 21 inside a regular class no more
than 79 percent of the day and no less than 40 percent of the day,
(3) Children ages 6 through 21 inside separate schools and
residential facilities, not including homebound or hospital
settings, correctional facilities, or private schools,
(4) Children ages 3 through 21 in out-of-school suspensions and
expulsions of 10 days or fewer,
(5) Children ages 3 through 21 in out-of-school suspensions and
expulsions of more than 10 days,
(6) Children ages 3 through 21 in in-school suspensions of 10
days or fewer,
(7) Children ages 3 through 21 in in-school suspensions of more
than 10 days, and
(8) Disciplinary removals in total.
We propose to require States to calculate the risk ratio or
alternate risk ratio, as appropriate, based on a minimum cell size no
greater than 10 children when analyzing identification and based on a
minimum cell size no greater than 10 children with disabilities when
analyzing disciplinary removal and placement. In all cases, especially
those in which States opt to use a minimum cell size less than 10,
States must be aware of, and conduct their analyses consistently with
the confidentiality provisions of FERPA, its implementing regulations
in 34 CFR part 99, and the reporting requirements of section 618(b) of
IDEA.
Under the proposed regulations, States may select risk ratio
thresholds appropriate to their individual needs, provided that: (a)
The thresholds are reasonable and (b) the thresholds are developed
based on advice from stakeholders, including State Advisory Panels.
Further, risk ratio thresholds would be subject to Departmental
monitoring and enforcement for reasonableness. We propose to allow
States to select different risk ratio thresholds for different
categories of analysis (e.g., 3.5 for intellectual disability and 4.0
for emotional disturbance). However, the use of different thresholds
for different racial and ethnic groups, may violate applicable
requirements of federal statutes and the Constitution.
Finally, we propose that, although States would still be required
to calculate risk ratios for their LEAs to determine significant
disproportionality on an annual basis, States would have the
flexibility to identify as having significant disproportionality only
those LEAs that exceed their risk ratio threshold(s) for up to three
prior consecutive years. We also propose to allow States not to
identify LEAs that exceed the risk ratio threshold if they are making
reasonable progress, as determined by the State, in lowering risk
ratios from the preceding year.
II. Clarification That Statutory Remedies Apply to Disciplinary
Removals
When a State finds significant disproportionality based on race or
ethnicity with respect to identification or placement, IDEA and its
implementing regulations require a set of remedies intended to address
the significant disproportionality. The State must: (1) Provide for the
review, and, if appropriate, revision of policies, practices, and
procedures to ensure that they comply with the requirements of IDEA;
(2) require any LEA identified with significant disproportionality to
reserve 15 percent of IDEA Part B funds to provide 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 policies,
practices, and procedures. Section 618(d)(2) of IDEA (20 U.S.C.
1418(d)(2)); 34 CFR 300.646(b).
When Congress added discipline to section 618(d)(1) in 2004, it
made no specific corresponding change to the introductory paragraph of
section 618(d)(2). Therefore, although States are required under
section 618(d)(1) to collect and examine data to determine if
significant disproportionality is occurring with respect to the
incidence, duration, and type of disciplinary actions in their State
and their LEAs, the required actions set forth in section 618(d)(2) are
not explicitly applied if a State determines that there is significant
disproportionality with respect to ``disciplinary actions.'' The
Department believes that this has resulted in a statutory ambiguity
because disciplinary actions are generally removals of the student from
his or her placement for varying lengths of time and may constitute a
change in placement under certain circumstances. (See section 615(k) of
IDEA.)
The Department has, therefore, previously taken the position that
the required remedies in 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.) We propose to adopt that long-standing interpretation
into the Part B regulations.
III. Clarification of the Review and Revision of Policies, Practices,
and Procedures
As a consequence of a State determination of significant
disproportionality in an LEA, a State must provide for the review and,
if
[[Page 10979]]
appropriate, revision of policies, practices, and procedures to ensure
compliance with the requirements of IDEA. Section 618(d)(2)(A) of IDEA
(20 U.S.C. 1418(d)(2)(A)). In cases where it is appropriate to make
revisions to policies, practices, or procedures, the LEA must publicly
report on those revisions. Section 618(d)(2)(C) of IDEA (20 U.S.C.
1418(d)(2)(C)).
Consistent with the plain language of section 618(d)(2)(A), the
Department has previously interpreted the statute to require States to
provide for a review of policies, practices, and procedures for
compliance with the requirements of IDEA. See OSEP Memorandum 07-09.
However, the Department notes that this guidance did not clearly
explain that States must provide for this review in every year in which
the LEA is identified with significant disproportionality.
If significant disproportionality is found in identification,
placement, or discipline, a review of policies, practices, and
procedures in that area must take place to ensure compliance with the
IDEA. Additionally, in accordance with their responsibility under 34
CFR 300.201, in providing for the education of children with
disabilities, LEAs must have in effect policies and procedures and
programs that are consistent with the State's child find policies and
procedures established under 34 CFR 300.111. Therefore, LEAs identified
with significant disproportionality with respect to identification must
continue to properly implement the State's child find policies and
procedures. An annual review of policies, practices, and procedures
that includes a review for compliance with the State's child find
policies and procedures is intended to prevent such LEAs from
inappropriately reducing the identification of children as children
with disabilities.
To ensure that LEAs identified in multiple years review their
policies, practices, and procedures every year in which they are
identified with significant disproportionality, we propose that the
regulation clarify that the review of policies, practices, and
procedures must take place in every year in which the LEA is identified
with significant disproportionality.
Further, as our proposed standard methodology allows States the
flexibility to select a minimum cell size lower than 10, we propose to
add language reminding States that public reporting of LEA revisions of
policies, practices, and procedures must be consistent with the
confidentiality provisions of FERPA, its implementing regulations in 34
CFR part 99, and section 618(b)(1) of IDEA.
IV. Expanding the Scope of Comprehensive Coordinated Early Intervening
Services
Under section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)), 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 three) who have not
been identified as needing special education or related services but
who need additional academic or behavioral support to succeed in a
general education environment.
The activities that may be included in implementing these services
are: (1) Professional development for teachers and other school staff
to enable them to deliver scientifically based academic and behavioral
interventions, including scientifically based literacy instruction,
and, where appropriate, instruction on the use of adaptive and
instructional software; and (2) providing educational and behavioral
evaluations, services, and supports, including scientifically based
literacy instruction. Section 613(f)(2) of IDEA (20 U.S.C. 1413(f)(2)).
Section 618(d)(2)(B) of IDEA (20 U.S.C. 1418(d)(2)(B)) provides
that, in the case of a determination of significant disproportionality,
the State or the Secretary of the Interior must require any LEA so
identified to reserve 15 percent of its Part B (section 611 and section
619) subgrant, the maximum amount of funds under section 613(f), 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'' differs from ``CEIS'' in section 613(f) of IDEA
(20 U.S.C. 1413(f)). The Department's current regulations in 34 CFR
300.646(b)(2) only clarify that funds reserved for comprehensive CEIS
must be used to serve particularly, but not exclusively, children from
those groups that were significantly overidentified.
In OSEP Memorandum 07-09, the Department 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. Thus, we interpreted IDEA as not allowing an LEA
identified with significant disproportionality to use funds reserved
for comprehensive CEIS to serve preschool children ages three through
five, with or without disabilities, or children with disabilities in
kindergarten through grade 12. We also did not interpret IDEA as
requiring the State, as part of implementing comprehensive CEIS, to
identify and address the factors contributing to the significant
disproportionality. We now propose to amend the current regulation to
interpret the term ``comprehensive'' in section 618(d)(2)(B) of IDEA to
allow any LEA identified with significant disproportionality to expand
the use of funds reserved for comprehensive CEIS to serve children from
age 3 through grade 12, with and without disabilities.
As part of the IDEA Part B LEA Maintenance of Effort (MOE)
Reduction and CEIS data collection, States are required to report on
the total number of children that 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. This is
consistent with the information LEAs are required to report to States
under IDEA section 613(f)(4) and 34 CFR 300.226(d). After these
regulations are final, the Department is planning to provide guidance
on what States must report in the LEA MOE Reduction and CEIS data
collection and what LEAs must report to meet the requirement in IDEA
section 613(f)(4) and 34 CFR 300.226(d).
We also propose to require the LEA, as part of implementing
comprehensive CEIS services, to identify and address the factors
contributing to the significant disproportionality. These factors may
include a lack of access to scientifically based instruction, and they
may include economic, cultural, or linguistic barriers to appropriate
identification, placement, or disciplinary removal. Comprehensive CEIS
may also include professional development and educational and
behavioral evaluations, services, and supports. Requiring LEAs to carry
out activities to identify and address the factors contributing to the
significant disproportionality is consistent with the statutory
requirement that LEAs must use funds reserved for comprehensive CEIS to
serve children in the LEA, particularly children in those groups that
were significantly overidentified. Comprehensive CEIS funds must be
used to carry out activities to identify and address the factors
contributing to the significant disproportionality. Although not
specifically prohibited, we generally would not expect LEAs to use
[[Page 10980]]
these funds to conduct an evaluation to determine whether a child has a
disability or to provide special education and related services already
identified in a child's IEP.
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IDEA Data Center. (2014). Methods for Assessing Racial/Ethnic
Disproportionality in Special Education: A Technical Assistance
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Gunther, R., & Young, T. (2013). Out-of-school suspension and
expulsion. Pediatrics, 131(3), e1000-e1007.
Lee, T., Cornell, D., Gregory, A., & Xitao, F. (2011). High
suspension schools and dropout rates for black and white students.
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Losen, D.J. & Skiba, R.J. (2010). Suspended education: urban middle
schools in crisis. Montgomery, AL: Southern Poverty Law Center.
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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.
Morgan, P.L., Farkas, G., Hillemeir, M.M. & Maczuga, S. (2012). Are
Minority Children Disproportionately Represented in Early
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Summary of Proposed Changes
These proposed regulations address what States must do to identify
and address significant disproportionality based on race and ethnicity
occurring in States and LEAs in the States.
These proposed regulations would--
Add 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;
Add Sec. 300.647(c) to provide the flexibilities that
States, at their discretion, may consider when determining whether
significant disproportionality exists. States may
[[Page 10981]]
choose to identify an LEA as having significant disproportionality
after an LEA exceeds a risk ratio threshold for up to three consecutive
years. A State also has the flexibility not to identify an LEA with
significant disproportionality if the LEA is making reasonable progress
in lowering the risk ratios even if they are still above the State's
risk ratio thresholds, where reasonable progress is defined by the
State;
Amend current Sec. 300.646(b) (proposed Sec. 300.646(c))
to clarify that the remedies in section 618(d)(2) of IDEA are triggered
if a State makes a determination of significant disproportionality with
respect to disciplinary removals from placement;
Amend 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 FERPA, its
implementing regulations in 34 CFR part 99, and section 618(b)(1) of
IDEA; and
Amend current Sec. 300.646(b)(2) (proposed Sec.
300.646(d)) to define which student populations 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. The proposed regulations would require that, as part of
implementing the comprehensive CEIS, an LEA must identify and address
the factors contributing to the significant disproportionality.
Significant Proposed Regulations
We group major issues according to subject, with sections of the
proposed regulations in parentheses. Generally, we do not address
proposed regulatory changes that are technical or otherwise minor in
effect.
I. A Standard Methodology for Determining Significant
Disproportionality
Risk Ratios (Proposed Sec. 300.646(b); Sec. 300.647(a)(2); Sec.
300.647(a)(3); Sec. 300.647(b)(6))
Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) requires
every State that receives IDEA Part B funds to collect and examine data
to determine if significant disproportionality based on race or
ethnicity exists in the State or the LEAs of the State. IDEA does not
define ``significant disproportionality'' or instruct how data must be
collected and examined.
Current Regulations: Current Sec. 300.646(a) imposes the same
requirement as the statute and does not define ``significant
disproportionality'' or instruct how data must be collected or
examined.
Proposed Regulations: Proposed Sec. 300.646(b) would require that
States use a standard methodology to determine whether significant
disproportionality based on race or ethnicity exists in the State or in
the LEAs of the State.
Proposed Sec. 300.647(b) would require the use of risk ratios as
part of the standard methodology for determining significant
disproportionality.
Proposed Sec. 300.647(a)(2) would define ``risk'' as the
likelihood of a particular outcome (identification, placement, or
disciplinary removal) for a particular racial or ethnic group within an
LEA. Risk is calculated by dividing the number of children from a given
racial or ethnic group identified with a disability, placed, or
disciplined in the LEA by the total number of children from that racial
or ethnic group enrolled in schools in the LEA.
Proposed Sec. 300.647(a)(3) would define ``risk ratio'' as the
risk of an outcome for one racial or ethnic group in an LEA as compared
to the risk of that outcome for all other racial and ethnic groups in
the same LEA. Risk ratio is calculated by dividing the risk for
children in one racial or ethnic group within an LEA by the risk of
that same outcome for all other racial or ethnic groups within that
LEA.
Reasons: The Department proposes to require the use of this common
analytical method for determining significant disproportionality to
increase transparency in LEA identification across States for LEA,
State, and Federal officials, as well as the general public. The
Department proposes to require that States use the most common
analytical method in use among the States during SY 2013-2014. Based on
the SY 2013-14 SSS, 45 States use one or more forms of the risk ratio
and, of these, 39 use the risk ratio as their sole method for
determining significant disproportionality.
We acknowledge that most of the methods currently in use by States,
including the risk ratio, have benefits and drawbacks. In selecting a
method, the Department prioritized methods that LEAs and members of the
public could easily interpret and those that would create the least
disturbance in States' current methodologies for determining
significant disproportionality. At the same time, we closely examined
each method's strengths and weaknesses in identifying disparities by
race and ethnicity.
The risk ratio is the method that would create the least burden for
States and provide the public with information that is easily
interpreted (a comparison of the risk of an outcome). We also found
that the potential drawbacks of the risk ratio method's utility in
identifying disparities (i.e., volatility when applied to small
populations, inability to calculate when risk to a comparison group is
zero) can be minimized through the use of minimum cell sizes, multiple
years of data, and, when needed, alternative forms of the risk ratio.
In examining other methods, the Department found none that contain
a balance of transparency, limited burden, and utility similar to the
risk ratio. With respect to transparency and ease of comprehension, the
alternate risk ratio (identical to the risk ratio, but with State-level
data as the comparison group), the risk difference (another comparison
of the risk of an outcome), and the composition methods (a comparison
of representation in two contexts) are similar to the risk ratio.
Additionally, the alternate risk ratio and risk difference methods can
be used when risk to an LEA-level comparison group is zero. However,
these methods are rarely used among the States.
Further, the alternate risk ratio method uses State-level data in
place of LEA-level data to compare risk to racial and ethnic groups. In
cases where LEA-level data are available and reliable, the Department
determined that these numbers are preferable to State data. While the
weighted risk ratio method is used in approximately half of the States,
it is relatively more complex because it uses State-level demographic
information to add weights to the standard risk ratio.
Of the possible methodologies that the Department might require
States to use, we believe that the risk ratio would provide the
greatest utility while resulting in the least burden on, and
disturbance of, States' current methodologies for determining
significant disproportionality.
Categories of Analysis (Proposed Sec. 300.647(b)(3) and (4))
Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)(A)-(C))
requires States to determine whether significant disproportionality
based on race or ethnicity exists in the State or the LEAs of the State
with respect to identifying children as children with disabilities;
identifying children as children with
[[Page 10982]]
disabilities in accordance with a particular impairment; placing
children with disabilities in particular educational settings; and the
incidence, duration, and type of disciplinary actions, including
suspensions and expulsions.
Current Regulations: Current Sec. 300.646(a) includes the same
requirements as the statute.
Proposed Regulations: Proposed Sec. 300.647(b)(3)(i)-(ii) and
(b)(4)(i)-(viii) would provide additional specificity to the three
categories of analysis required by IDEA and current Sec. 300.646(a).
These sections would impose no new data collection requirements upon
States. Rather, the regulations would require States to use data they
already collect, analyze, and report to the Department to identify
significant disproportionality in LEAs.
For each of the enumerated racial and ethnic groups in an LEA,
States would calculate the risk ratio for the identification of
children ages 3 through 21 as children with disabilities and the risk
ratio for identification of children ages 3 through 21 as children
with--
Intellectual disabilities;
Specific learning disabilities,
Emotional disturbance;
Speech or language impairments;
Other health impairments; and
Autism.
For children with disabilities in each racial and ethnic group,
States would calculate the risk ratio for placements into particular
educational settings, including disciplinary removals--
For children ages 6 through 21, inside a regular class
more than 40 percent of the day and less than 79 percent of the day;
For children ages 6 through 21, inside a regular class
less than 40 percent of the day;
For children ages 6 through 21, inside separate schools
and residential facilities, not including homebound or hospital
settings, correctional facilities, or private schools;
For children ages 3 through 21, out-of-school
suspensions and expulsions of 10 days or fewer;
For children ages 3 through 21, out-of-school
suspensions and expulsions of more than 10 days;
For children ages 3 through 21, in-school suspensions
of 10 days or fewer;
For children ages 3 through 21, in-school suspensions
of more than 10 days; and
For children 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.
Reasons: It is the Department's intention to create greater
uniformity among States in the metrics used to make determinations of
significant disproportionality and, at the same time, disturb States'
current operations as little as possible. The calculations we would
require reflect the guidance for collecting and analyzing data for
determining significant disproportionality that was provided to the
States in the July 28, 2008, OSEP Memorandum 08-09 to Chief State
School Officers and State Directors of Special Education. These
calculations also have been established, following notice and comment,
in OMB-approved data collections 1875-0240 and 1820-0517.
As explained in OSEP Memorandum 08-09, the Department does not deem
disproportionality for a given metric to be significant when there are
very small numbers of children involved, as is the case with certain
impairments, including deaf-blindness, developmental delay, hearing
impairments, multiple disabilities, orthopedic impairments, traumatic
brain injuries, and visual impairments. The Department's proposed Sec.
300.647(b)(3)(ii) includes 6 of the 13 impairments listed in 34 CFR
300.8(c), representing nearly 93 percent of all children with
disabilities in SY 2012. (36th Annual Report to Congress, 2014.)
Similarly, the Department does not propose to require States to
analyze data for children who received special education and related
services in homebound or hospital settings, correctional facilities, or
in private schools (as a result of parental placement of the child in a
private school) because those numbers are typically very small and an
LEA generally has little, if any, control over these placements.
The OSEP Memorandum 08-09 provides further justification of the
Department's new requirements regarding calculation of significant
disproportionality for placement. As IDEA requires children with
disabilities to be placed in the least restrictive environment (LRE),
the first placement option to be considered is the regular classroom
with appropriate supplementary aides and services. For that reason, the
Department proposes that States analyze disparities in placement in the
regular classroom for less than 79 percent of the day, which is one of
the long-standing categories States use to report educational
environment data under section 618 of IDEA.
As States are currently required to annually collect and submit
these data to the Department under section 618(a)(1) of IDEA, the
Department anticipates that using these data to determine significant
disproportionality will take minimal additional capacity.
Risk Ratio Thresholds (Proposed Sec. 300.647(a)(4); Sec.
300.647(b)(1); Sec. 300.647(b)(2) and (6))
Statute: None.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 300.647(a)(4) would define
``risk ratio threshold'' as the threshold over which disproportionality
based on race or ethnicity is significant under proposed Sec.
300.646(a) and (b).
Proposed Sec. 300.647(b)(1) would require States to set reasonable
risk ratio thresholds for each of the categories described in the
proposed Sec. Sec. 300.647(b)(3) and (4). Proposed Sec.
300.647(b)(1)(i) would require that risk ratio thresholds are based on
advice from stakeholders, including their State Advisory Panels.
Proposed Sec. 300.647(b)(1)(ii) would require that risk ratio
thresholds be subject to monitoring and enforcement for reasonableness
by the Secretary, consistent with section 616 of the Act.
Proposed Sec. 300.647(b)(2) would require States to apply the risk
ratio thresholds to risk ratios (or alternate risk ratios, as
appropriate) to each of the categories described in the proposed Sec.
300.647(b)(3) and (4) and to the following racial and ethnic groups
within each category: Hispanic/Latino of any race; and, for individuals
who are non-Hispanic/Latino only, American Indian/Alaska Native; Asian;
Black/African American; Native Hawaiian or Other Pacific Islander;
White; and two or more races.
Proposed Sec. 300.647(b)(6) would require States to identify as
having significant disproportionality any LEA where the risk ratio for
any racial or ethnic group in any category of analysis in proposed
Sec. 300.647(b)(3) and (4) is above the risk ratio threshold set by
the State for that category.
Reasons: Using a risk ratio to determine significant
disproportionality necessitates setting a threshold that marks the
boundary between disproportionality and significant disproportionality.
The Department proposes limitations and requirements for
establishing risk ratio thresholds to address current State practices.
These proposed regulations are also intended to encourage States to
differentiate LEAs with some disproportionality from LEAs with
significant disproportionality. It is noteworthy that in SY 2012-2013,
21 States did not identify significant disproportionality in any LEAs.
Given the degree of disproportionality across all States, the
Department is concerned that a number of States using risk ratios may
have, intentionally or
[[Page 10983]]
unintentionally, set thresholds high enough to effectively nullify the
statutory requirement that they identify LEAs with significant
disproportionality.
To address this, proposed Sec. 300.647(b)(1)(ii) requires that a
risk ratio threshold be reasonable and subject to Departmental
monitoring and enforcement. By requiring that States abide by a
standard of reasonableness, the Department may initiate enforcement
action against a State that selects an unreasonable risk ratio
threshold.
There are a number of factors that may influence whether a risk
ratio threshold is reasonable for the State. For example, the
Department may determine that a State has selected a reasonable
threshold if it is likely to lead to a reduction in disparities on the
basis of race or ethnicity or if it results in identification of LEAs
in greatest need of intervention.
By contrast, the Department may determine that a State has selected
an unreasonable risk ratio threshold if it avoids identifying any LEAs
(or significantly limits the identification of LEAs) with significant
disparities 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.
While a number of States rely on statistical significance tests and
confidence intervals to set risk ratio thresholds, there may be some
cases in which these may be unreasonable when compared with racial and
ethnic disparities in the LEAs of the State. In States with non-normal
distributions of LEA risk ratios, individual LEAs that significantly
deviate from the typical range of risk ratios in other LEAs in the
State (i.e., outliers), or a small number of total LEAs, a risk ratio
threshold set two standard deviations above the Statewide average risk
ratio may fail to identify LEAs in which significant racial or ethnic
discrepancies exist in the identification, placement, and/or discipline
of students with disabilities. Solely because a risk ratio threshold is
the result of an objective calculation does not guarantee that the
resulting threshold itself would be considered reasonable when it is
compared to the racial and ethnic disparities taking place at the LEA
level.
Further, for States that identified no LEAs with significant
disproportionality in SY 2012-2013, a standard of reasonableness will
help to determine whether the State's choice of risk ratio threshold
was appropriate. For example, selection of a risk ratio threshold that
results in no determination of significant disproportionality may
nonetheless be reasonable if a State has little or no
overrepresentation on the basis of race or ethnicity. Put another way,
a risk ratio threshold under which no LEAs are determined to have
significant disproportionality could be reasonable if there is little
or no overrepresentation on the basis of race or ethnicity in the LEAs
of the State, much less significant disproportionality.
In a case where a State does have some degree of racial or ethnic
disparities, a risk ratio threshold that results in no determination of
significant disproportionality may nonetheless be reasonable if none of
its LEAs are outliers in a particular category when compared to other
LEAs nationally. There are many ways that a State might make this
comparison, and we provide one example here.
For identification, we used IDEA section 618 data to, first,
calculate a national median risk ratio based on LEA-level risk ratios,
and, second, identify outlier LEAs based on the national median. The
Department repeated this procedure for placement and disciplinary
removal to develop 15 risk ratio thresholds, as outlined in Table 7.
Table 7--Number and Percentage of LEAs Exceeding a Risk Ratio Threshold,
Equaling Two Median Absolute Deviations Above the Median of All LEAs,ab
in SY 2011-12, SY 2012-13, and SY 2013-14
------------------------------------------------------------------------
Percent of LEAs
Risk ratio \d\ exceeding the
Metrics used to measure three threshold (based risk ratio
categories of analysis on two median threshold for
(identification, placement, and absolute three years (SY
disciplinary removals) deviations above 2011-12, SY 2012-
the median for LEA 13, and SY 2013-
risk ratios \c\ 14)
------------------------------------------------------------------------
All disabilities................ 1.67 16.7
Autism.......................... 2.41 11.9
Emotional disturbance........... 2.96 9.2
Intellectual disabilities....... 2.48 12.8
Other health impairments........ 2.38 11.5
Specific learning disabilities.. 1.97 15.2
Speech or language impairments.. 2.03 10.6
Inside regular class 40 percent .................. ..................
through 79 percent of the day..
Inside regular class less than 1.65 5.1
40 percent of the day..........
Separate settings............... 2.13 3.1
In-school suspensions <=10 days. 1.97 3.5
In-school suspensions >10 days.. 2.94 0.5
Out-of-school suspensions/ 2.01 5.7
expulsions <=10 days...........
Out-of-school suspensions/ 3.00 1.3
expulsions >10 days............
Total removals.............. 1.87 6.9
------------------------------------------------------------------------
\a\ N = 17,371 LEAs.
\b\ Excludes LEAs in one State, for any of the identification metrics,
and all but one LEA in a second State, for the disciplinary removal
metrics.
\c\ Medians and MADs exclude risk ratios of 0.
\d\ Only includes LEAs with outlier risk ratios for those racial and
ethnic groups with at least 10 children.
Additional information regarding the Department's example may be
found at http://www2.ed.gov/programs/osepidea/618-data/LEA-racial-ethnic-disparities-tables/index.html.
In proposing Sec. 300.647(b)(1)(ii), it is the Department's
intention that the States' selection of risk ratio thresholds be
subject to a Departmental monitoring and enforcement for
reasonableness. If
[[Page 10984]]
the Department identifies a State that may have an unreasonable
threshold, it would notify the State and request clarification
regarding how the State believes the selection of risk ratio thresholds
is reasonable. If a State provides an insufficient response, the
Department would notify the State that it is not in compliance with the
IDEA regulation requiring the State to set a reasonable risk ratio
threshold, and the Department would take an 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. The
Department anticipates that the requirement of reasonableness in
proposed Sec. 300.647(b)(1) will not only help ensure the statutory
requirement is meaningful but will also result in States requiring
those LEAs with the largest disparities to direct resources to identify
and correct practices that may violate not just IDEA but also Federal
civil rights laws that prohibit discrimination on the basis of race,
color, and national origin, such as Title VI of the Civil Rights Act of
1964. Nothing in this proposed regulation will limit or insulate an LEA
or SEA from enforcement action under other statutes. Proposed Sec.
300.647(b)(1) would require States to select reasonable risk ratio
thresholds that effectively identify LEAs with large racial and ethnic
disparities, so that their policies, practices, and procedures may be
reviewed consistent with section 618(d)(2)(A) of IDEA. This valuable
self-examination may, depending upon the factual circumstances in the
State or the LEA, reduce the risk of further compliance concerns.
Proposed Sec. 300.647(b)(1)(i) would clarify the role of the State
Advisory Panel in determining the risk ratio thresholds. Under section
612(a)(21)(D) of IDEA (20 U.S.C. 1412(a)(21)(D)), 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 SEAs will submit to the Department
under section 618 of IDEA--including the LEAs identified with
significant disproportionality and the reason for the identification--
the State Advisory Panel should have a meaningful role in advising the
SEA on these selections.
Proposed Sec. 300.647(b)(1) would clarify that States may set a
different risk ratio threshold for each of the categories in proposed
Sec. 300.647(b)(3) and (4). States may need different thresholds in
order to reasonably identify significant disproportionality for
categories with different degrees of disparity. For example, if the
LEAs in a State, on average, identify any one racial or ethnic group
for emotional disturbance at a rate three times that of all other
children but use disciplinary removals for any one racial or ethnic
group at a rate five times that of all other children, the State may
find it difficult to set a single threshold that would be reasonable
for both emotional disturbance and disciplinary removals.
In directed question 9, the Department has requested public comment
on the proposed requirements regarding the development and application
of risk ratio thresholds. The use of different risk ratio thresholds
for different racial and ethnic groups may be constitutionally
impermissible.
Lastly, proposed Sec. 300.647(b)(2) would provide a complete list
of the racial and ethnic groups that each State must analyze as part of
the approach to defining and identifying significant
disproportionality. This list of racial and ethnic groups is the same
list of groups required for States' current IDEA section 618 data
submissions, as explained in the Department's Final Guidance on
Maintaining, Collecting, and Reporting Racial and Ethnic Data to the
U.S. Department of Education. 72 FR 59266 (October 19, 2007).
Again, within these guidelines, there are many ways a State may set
reasonable risk ratio thresholds. For example, States may choose an
appropriate value based on previous experience with particular
thresholds (e.g., if, in the past, LEAs with risk ratios above 2.5
were, after a review of policies, practices, and procedures, found to
be non-compliant with the requirements of IDEA, while those under that
threshold were generally not), or they may calculate the value using a
data analysis that complies with proposed Sec. 300.647(b)(2).
Minimum Cell Sizes (Proposed Sec. 300.647(b)(3) and (4))
Statute: None.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 300.647(b)(3) and (4) would
require a minimum cell size no greater than 10 for risk ratio
calculations. Specifically, to determine significant disproportionality
in identification, States would calculate, for each LEA, risk ratios
for all racial and ethnic groups that include a minimum number of
children not larger than 10. To determine significant
disproportionality in placement, including disciplinary removals from
placement, States would calculate, for each LEA, risk ratios for all
racial and ethnic groups that include a minimum number of children with
disabilities not larger than 10.
Reasons: The proposal to use a minimum cell size no greater than 10
would ensure that States examine as many racial and ethnic groups for
significant disproportionality in as many LEAs as possible while
minimizing the effect that minor variations in the number of children
in a given racial or ethnic group, or in the comparison group, have on
LEAs risk ratios.
For example, the graduation of a relatively small number of
children with disabilities, while not reflecting any change in the
policies, practices, and procedures of the LEA, could result in a large
change in the calculated risk ratio for a particular category of
analysis, particularly if those graduating children represented a
sizable proportion of the total number of children with disabilities in
a given racial or ethnic group.
The minimum cell size included in proposed Sec. 300.647(b)(3) and
(4) would allow States to exclude certain LEAs from a determination of
significant disproportionality based on the number of children in the
racial or ethnic group of interest and the number of children with
disabilities in the racial or ethnic group of interest. For example, if
an LEA has fewer than 10 Hispanic/Latino children, then the State may
choose to exclude that LEA from a determination of whether significant
disproportionality exists in the identification of Hispanic/Latino
children. If an LEA has fewer than 10 Hispanic/Latino children with
disabilities, then the State may choose to exclude that LEA from a
determination of whether significant disproportionality exists in the
placement or disciplinary removal of Hispanic/Latino children with
disabilities.
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 cell size is too
small, more LEAs would be included in the analysis, but the likelihood
of dramatic, 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
disparities as there might be.
[[Page 10985]]
Current research demonstrates that a minimum cell size of 10
provides for a reasonable analysis without excluding too many LEAs from
a determination of whether significant disproportionality on the basis
of race exists. (Bollmer, et al., 2007; IDEA Data Center 2014).
Alternate Risk Ratios (Proposed Sec. 300.647(a)(1); Sec.
300.647(b)(5))
Statute: None.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 300.647(b)(5) would require
States to use the alternate risk ratio in place of the risk ratio when,
for any analysis category, an LEA has fewer than 10 children in the
comparison group--all other racial and ethnic groups in the LEA--or the
risk for children in all other racial and ethnic groups is zero.
Proposed Sec. 300.647(a)(1) would define ``alternate risk ratio.''
Like risk ratio, alternate risk ratio measures the risk of an outcome
for one racial or ethnic group in the LEA, but compares it to the risk
of that outcome for all other racial and ethnic groups in the State,
not all other racial and ethnic groups in the LEA. An alternate risk
ratio is calculated by dividing the risk for children in one racial or
ethnic group within an LEA by the risk of that same outcome for all
other racial or ethnic groups within the State.
Reasons: As explained in the discussion of minimum cell sizes, a
risk ratio can produce more volatile results when applied to small
numbers. Setting an appropriate minimum cell size is one way of
addressing this limitation when there are too few children in the
racial or ethnic group of interest. However, when an LEA has too few
children in the comparison group--fewer than 10--experts recommend the
use of the alternate risk ratio. (Bollmer, et al., 2007.) With the
alternate risk ratio, the State population replaces the LEA population
for the comparison group, permits the calculation, and produces results
that are less volatile. Further, a risk ratio cannot be calculated at
all if there are no children in the comparison group, or if the risk to
children in the comparison group is zero (because a number cannot be
divided by zero). In these specific cases, the Department has proposed
to require States to use the alternate risk ratio as the method for
measuring disparities in the LEA.
Flexibilities (Proposed Sec. 300.647(c))
Statute: None.
Current Regulations: None.
Proposed Regulations: Proposed Sec. 300.647(c) would provide
States with additional flexibility in making determinations of
significant disproportionality. In proposed Sec. 300.647(c)(1),
although States would still calculate annual risk ratios for their
LEAs, they would have the flexibility to identify only those LEAs that
exceed the risk ratio threshold for a number of consecutive years, but
no more than three.
Proposed Sec. 300.647(c)(2) would allow States not to 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 from the immediate preceding year.
Reasons: It is the Department's intention to reduce the likelihood
that LEAs will be inappropriately identified with significant
disproportionality by allowing States the flexibility to identify only
those LEAs showing significant racial and ethnic disparities over a
number of consecutive years. Measures of disproportionality can be
variable if the number of children included in the analysis is small,
as may be the case in small LEAs or in LEAs with a small racial or
ethnic subgroup. However, LEAs are less likely to be identified based
on volatile data if multiple years of data are taken into
consideration. (IDEA Data Center, 2014.)
This flexibility also adopts an existing common practice among
States. Based on the SY 2013-14 SSS, 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. The Department proposes to allow States to use
up to three prior consecutive years of data before an LEA is
identified, which reflects the current most common practice among the
States. States using this flexibility must use data from prior school
years to determine whether any LEAs in their State should be identified
as having significant disproportionality in the first (or second, as
appropriate) year after the proposed regulation is adopted.
Finally, with this regulation, the Department intends to empower
States to focus their attention on those LEAs in which the level of
disproportionality is not decreasing. We intend to allow States to
leave undisturbed IDEA Part B funds that may be achieving the goal of
reducing disparities in certain LEAs, as evidenced by reasonable
progress determined by the State, in lowering their risk ratio, even
though the LEA has a risk ratio that exceeds the State's risk ratio
threshold.
II. Clarification That Statutory Remedies Apply to Disciplinary Actions
(Proposed Sec. 300.646(a)(3) and (c))
Statute: Section 618(d)(1)(C) of IDEA (20 U.S.C. 1418(d)(1)(C))
specifies that a State must provide for the collection and examination
of data with respect to the incidence, duration, and type of
disciplinary actions, including suspension and expulsions, to determine
if significant disproportionality with respect to race and ethnicity is
occurring in the State or the LEAs of the State. Section 618(d)(2) of
IDEA (20 U.S.C. 1418(d)(2)) specifies the actions a State must take if
it finds significant disproportionality based on race or ethnicity in
the identification of children as children with disabilities or in
their placement in particular educational settings. A State must
provide for the review and, if appropriate, revision of the policies,
practices, and procedures used in the identification or placement to
ensure that these policies, practices, and procedures comply with the
requirements of IDEA. The State must also require any LEA identified
with significant disproportionality to reserve 15 percent of its IDEA
Part B subgrant to provide comprehensive CEIS to children in the LEA,
particularly children in those groups that were significantly
overidentified, and require the LEA to publicly report on the revision
of policies, practices, and procedures.
Current Regulations: Current Sec. 300.646(a)(1) and (b)(1) restate
the statute largely verbatim. Current Sec. 300.646(a)(1) requires LEAs
to provide comprehensive CEIS particularly, but not exclusively, to
children in those groups that were significantly overidentified.
Proposed Regulations: Proposed Sec. 300.646(a)(3) would clarify
that disciplinary actions under IDEA are considered removals from
current placement, which is consistent with current Sec. 300.530.
Proposed Sec. 300.646(c) would clarify that the State must implement
the statutory remedies in section 618(d)(2) to address significant
disproportionality with respect to disciplinary removals from
placement.
Reasons: Ensuring that States implement the statutory remedies will
help address significant disproportionality in disciplinary removals
from placement.
Proposed Sec. 300.646(c) is based, in part, on the use of the term
``placement'' in the introductory paragraph of section 618(d)(2). The
Department reads the term ``placement'' to include
[[Page 10986]]
disciplinary removals of children with disabilities from their current
placement, in accordance with section 615(k)(1) of IDEA (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).
To the extent that section 618(d)(2) of IDEA specifies the remedies
that States and LEAs must implement following a determination of
significant disproportionality with respect to placement, the
Department seeks to clarify that these remedies also follow a
determination of significant disproportionality with respect to
disciplinary removals from placement of any duration.
This reading of ``placement'' aligns with OSERS' prior
interpretations and guidance both on this issue--as outlined in the
OSEP Questions and Answers on Discipline Procedures, Revised June
2009--and the determination required under section 618(d)(1).
III. Clarification of the Review and Revision of Policies, Practices,
and Procedures (Sec. 300.646(c))
Statute: Section 618(d)(2)(A) (20 U.S.C. 1418(d)(A)) requires the
State or the Secretary of Interior to provide for the review, and if
appropriate, revision of policies, practices, and procedures to ensure
compliance with the requirements of IDEA. Section 618(d)(2)(C) (20
U.S.C. 1418(d)(C)) requires LEAs identified as having significant
disproportionality to publicly report on any revisions to policies,
practices, and procedures.
Current Regulation: Current Sec. 300.646(b)(1) and (3) restate the
statute largely verbatim.
Proposed Regulation: Proposed Sec. 300.646(c)(1) would clarify
that the review of policies, practices, and procedures must be
conducted in every year in which any LEA is identified as having
significant disproportionality.
Proposed Sec. 300.646(c)(2) would restate the statutory
requirement that, in the case of a determination of significant
disproportionality, the LEA must publicly report on the revision of
policies, practices, and procedures and add new language requiring that
the report be consistent with the confidentiality provisions of FERPA
and its implementing regulations in 34 CFR part 99, and section
618(b)(1) of IDEA.
Reasons: While the Department interprets section 618(d)(2)(A) of
IDEA to require States to provide for an annual review of policies,
practices, and procedures resulting from a determination of significant
disproportionality, the requirement that LEAs identified in multiple
years must review their policies, practices, and procedures every year
in which they are identified with significant disproportionality is not
sufficiently clear in the current regulation.
When LEAs review and revise their policies, practices, and
procedures, and publicly report on those revisions, there is a risk of
disclosing personally identifiable information, particularly if the
subgroup under examination is particularly small (e.g., 10 American
Indian/Alaska Native children in an LEA, five of whom are children with
disabilities). To reduce the risk of disclosing personally identifiable
information, we have proposed Sec. 300.646(c)(2) to clarify that LEA
reporting on the revision of policies, practices, and procedures be
consistent with the confidentiality provisions of FERPA, its
implementing regulations in 34 CFR part 99, and section 618(b)(1)
reporting requirements.
IV. Expanding the Scope of Comprehensive Coordinated Early Intervening
Services (Sec. 300.646(d))
Statute: Section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)) requires
any LEA identified as having significant disproportionality to reserve
the maximum amount of funds under section 613(f) to provide
comprehensive CEIS to serve children in the LEA, ``particularly
children in those groups that were significantly overidentified.''
Current Regulation: There are minor differences between the
statutory language and current Sec. 300.646(b)(2). Current Sec.
300.646(b)(2) requires comprehensive CEIS for children in the LEA,
``particularly, but not exclusively, children that were significantly
overidentified.''
Proposed Regulation: Proposed Sec. 300.646(d)(1) and (2) would
amend current Sec. 300.646(b)(2) to require the State to permit an LEA
identified with significant disproportionality to provide comprehensive
CEIS to preschool children ages 3 through 5, with or without
disabilities, and children with disabilities in kindergarten through
grade 12. The proposed regulation would also require the LEA, as part
of implementing comprehensive CEIS, to identify and address the factors
contributing to the significant disproportionality, which may include a
lack of access to evidence-based instruction and economic, cultural, or
linguistic barriers to appropriate identification, placement, or
disciplinary removal.
Proposed Sec. 300.646(d)(3) would prohibit LEAs from limiting the
provision of comprehensive CEIS to children with disabilities.
In directed question 10, the Department has requested public
comment regarding restrictions on the use of comprehensive CEIS for
children already receiving services under Part B of the IDEA.
Reasons: We have determined it is appropriate to expand the
population of children that can be served with IDEA Part B funds
reserved for comprehensive CEIS to include children with disabilities
(while prohibiting the exclusive use of comprehensive CEIS for children
with disabilities) and preschool children with and without
disabilities. We have also determined that it is appropriate to require
LEAs, in implementing comprehensive CEIS, to identify and address the
factors contributing to the significant disproportionality.
Regarding the use of comprehensive CEIS for children with
disabilities, commenters responding to the June 2014 RFI noted that
providing comprehensive CEIS only to children without disabilities is
unlikely to address racial and ethnic disparities in the placement or
disciplinary removal of children with disabilities. Commenters
specifically questioned how comprehensive CEIS could address
significant disproportionality in an LEA as to placement if IDEA Part B
funds reserved for comprehensive CEIS can only be used for children who
are not currently identified as needing special education and related
services.
The Department agrees with the commenters and proposes to allow
LEAs to use IDEA Part B funds reserved for comprehensive CEIS to serve
children with disabilities in order to provide services that address
factors contributing to significant disproportionality related to
placement, including disciplinary removals from placement. However,
recognizing the statutory emphasis on early behavioral and academic
supports and services before children are identified with a disability,
the Department proposes to prohibit LEAs from limiting services solely
to children with disabilities.
[[Page 10987]]
Regarding the use of comprehensive CEIS for preschool children, the
Department notes that there is robust research supporting the
conclusion that the early childhood years are a critical period in the
development of children's language, social, and cognitive skills.
(National Research Council and Institute of Medicine, 2000.) A child's
early years set the foundation for later school success. Providing
engaging and supportive learning opportunities as early as possible,
particularly for children with and at risk for, delays and
disabilities, can change developmental trajectories and set children on
a path for achieving expected developmental and learning outcomes.
Participation in preschool programs is also associated with
significantly lower rates of special education services between the
ages of 6 and 18. (Reynolds et al., 2001.) When young children enter
kindergarten with skills behind their same age peers, they often have
difficulty catching up and instead fall further behind.
Disparities in early literacy skills put many children at risk for
diminished later school success. By 18 months of age, gaps in language
development have been documented when comparing children from low-
income families to their more affluent peers. (Fernald, Marchman, &
Weisleder 2013; Hart and Risely, 1995.) Additionally, scores on reading
and math were lowest for first-time kindergartners in households with
incomes below the Federal poverty level and highest for those in
households with incomes at or above 200 percent of the Federal poverty
level. (Mulligan, Hastedt, & McCarroll, 2012.) Racial disparities have
also been identified in the early literacy and math skills of children
entering kindergarten with White children, on average, having higher
reading and math scores than children of color with the exception of
Asian children. (Mulligan, Hastedt, & McCarroll, 2012.)
Research has underscored the critical role high-quality preschool
programs can play to help address these disparities by providing a
variety of rich early learning experiences and individualized supports
needed to foster children's development and learning. However, Black/
African-American children and children from low-income families are the
most likely to be in low-quality settings and the least likely to be in
high-quality settings. (Center for American Progress, 2014.) In one
large State, Hispanic/Latino children make up two-thirds of children
entering kindergarten, but, of all racial and ethnic groups, are least
represented in the State's preschool programs. (Valdivia, 2006.)
Additionally, research suggests that there are racial disparities
in the receipt of early intervention and early childhood special
education services. For example, researchers found that racial
disparities emerged by 24 months of age. African-American children are
almost five times less likely to receive early intervention services
under Part C of IDEA, and by 48 months of age, African-American
children are disproportionately underrepresented in preschool special
education services. (Feinberg et al., 2011; Rosenberg et al., 2008;
Morgan et al., 2012.) Providing high-quality early intervention
services can increase children's language, cognitive, behavioral, and
physical skills and improve their long-term educational outcomes.
(Morgan, Farkas, Hillemeir & Maczuga, 2012.)
Finally, data indicate that specific groups of children are being
disproportionately expelled and suspended from their early learning
settings, a trend that has remained virtually unchanged over the past
decade. Children most in need of the benefits of preschool programs are
the ones most often expelled from the system. Recent data indicate that
African-American boys make up 18 percent of preschool enrollment but 48
percent of preschoolers suspended more than once. Hispanic/Latino and
African-American boys combined represent 46 percent of all boys in
preschool but 66 percent of their same-age peers who are suspended (see
http://www2.ed.gov/policy/gen/guid/school-discipline/policy-statement-ece-expulsions-suspensions.pdf). While more research is needed to
understand the impacts of disciplinary removal on preschool children,
research shows the detrimental impacts on their older peers. Expulsion
and suspension early in a child's education predicts expulsion or
suspension in later grades. (Losen and Skiba, 2010.) Children who are
expelled or suspended are as much as 10 times more likely to experience
academic failure and grade retention. (Lamont et al., 2013.)
Using IDEA Part B funds to provide comprehensive CEIS to preschool
children with or without disabilities may help improve early
intervening services available and over time reduce significant
disproportionality. Specifically, IDEA Part B funds reserved for
comprehensive CEIS could be used to implement program-wide models of
interventions, such as positive behavioral interventions and supports
and response to intervention, to increase the quality of the learning
environment for all preschool children and provide explicit instruction
and individualized interventions for those who need additional support.
Comprehensive CEIS could also be used to increase the capacity of
the workforce to support all children's cognitive, social-emotional,
and behavioral health. For example, early childhood personnel could
receive specific professional development on promoting children's
social-emotional and behavioral health or ensuring that children with
disabilities receive appropriate accommodations to support their full
participation in inclusive classrooms.
Additionally, comprehensive CEIS could be used to train preschool
program staff to conduct developmental screenings and make appropriate
referrals to ensure that children are linked to services and receive
supports as early as possible, minimizing the negative impact of
developmental delays and maximizing children's learning potential.
Using IDEA Part B funds to provide comprehensive CEIS to preschool
children with and without disabilities may help provide high-quality
preschool services and promote targeted workforce professional
development focused on promoting the social-emotional and behavioral
health of all children.
Requiring LEAs to use funds reserved for comprehensive CEIS to
carry out activities to identify and address the factors contributing
to the significant disproportionality may ensure that LEAs are using
these funds to focus on activities designed to address the significant
disproportionality. Directing LEAs to target the use these funds in
this manner is consistent with the statutory purpose of the reservation
of funds, which is to serve children in the LEA, particularly children
in those groups that were significantly overidentified.
In sum, we believe that allowing LEAs also to use IDEA Part B funds
to provide comprehensive CEIS to preschool children ages three through
five, with or without disabilities, to children with disabilities in
kindergarten through grade 12, and requiring LEAs to identify and
address factors contributing to the significant disproportionality, is
consistent with the purposes of the statutory remedies, which are
designed to assist LEAs in addressing significant disproportionality in
identification, placement, and disciplinary removal.
Directed Questions
The Department seeks additional comment on the questions below.
(1) The Department notes that a number of commenters responding to
the RFI expressed concern that the use
[[Page 10988]]
of a standard methodology to determine significant disproportionality
may not be appropriate for certain types of LEAs.
How should the proposed standard methodology apply to an LEA that
may be affected by disparities in enrollment of children with
disabilities (e.g., LEAs that house schools that only serve children
with disabilities and school systems that provide specialized programs
for children with autism or hearing impairments, etc.)?
(2) The Department is particularly interested in comments regarding
strategies to address the shortcomings of the risk ratio method, which
the Department has proposed to require States to use to determine
significant disproportionality. While this method is the most common
method in use among the States, the Department is aware that other
methods may have advantages and disadvantages. Risk ratios are
influenced by the number of children in an LEA and in the racial or
ethnic group of interest. In cases where the risk to a comparison group
is zero, it is not possible to calculate a risk ratio. The Department
has proposed a number of strategies to address the drawbacks of the
risk ratio, including a minimum cell size and flexibility with regard
to the number of years of data a State may take into account prior to
making a determination of significant disproportionality. In addition,
the Department has proposed that States use an alternate risk ratio in
specific circumstances when the risk ratio cannot be calculated.
Should the Department allow or require States to use another method
in combination with the risk ratio method? If so, please state what
limitation of the risk ratio method does the method address, and under
what circumstances should the method be allowed or required.
(3) The Department has proposed to require States to determine
whether there is significant disproportionality with respect to the
identification of children as children with intellectual disabilities,
specific learning disabilities, emotional disturbance, speech or
language impairments, other health impairments, and autism. Because the
remaining impairments described in section 602(3) of IDEA typically
have very small numbers of children, the Department does not deem
disproportionality in the number of children with these impairments to
be significant.
Similar to impairments with small numbers of children, should the
Department exclude any of the six impairments included in the proposed
Sec. 300.647(b)(3)? If so, which impairments should be removed from
consideration? Alternatively, should the Department include additional
impairments in Sec. 300.647(b)(3)?
(4) Consistent with OSEP Memorandum 08-09, the Department has
proposed to require States to determine whether there is significant
disproportionality with respect to self-contained classrooms (i.e.,
placement inside the regular classroom less than 40 percent of the day)
and separate settings (i.e., separate schools and residential
facilities), as these disparities suggest that a racial or ethnic group
may have less access to the LRE to which they are entitled under
section 612(a)(5) of IDEA.
Should the Department also require States to determine whether
there is significant disproportionality with respect to placement
inside the regular classroom between 40 percent and 79 percent of the
day, as proposed in this NPRM?
(5) The Department has proposed to require States to develop risk
ratio thresholds that comply with specific guidelines (i.e., States
must select a reasonable threshold and consider the advice of
stakeholders). We have proposed these guidelines in lieu of a mandate
that all States use the same risk ratio thresholds. At this time, the
Department does not intend to set mandated risk ratio thresholds and
proposes that States should retain the flexibility to select risk ratio
thresholds that best meet their needs. However, we seek the public's
perspective on whether a federally-mandated threshold is appropriate
and, if so, what that threshold should be. This information may inform
potential future regulatory efforts to address racial and ethnic
disparities under section 618(d) of IDEA. As noted above, the
Department has no intention to set a federally-mandated threshold
through this current regulatory action. Further, we seek the public's
perspective as to what risk ratio thresholds the Department might
consider as ``safe harbor'' when reviewing State risk ratio thresholds
for reasonableness.
Should the Department, at a future date, mandate that States use
the same risk ratio thresholds? If so, what risk ratio thresholds
should the Department mandate? What is the rationale or evidence that
would justify the Department's selection of such risk ratio thresholds
over other alternatives? Lastly, what safe harbor should the Department
create for risk ratio thresholds that States could voluntarily adopt
with the knowledge that it is reasonable pursuant to this proposed
regulation? Public comments regarding this last question may be used to
inform future guidance regarding the development of risk ratio
thresholds and the Department's approach to reviewing risk ratio
thresholds for reasonableness.
(6) The Department has proposed to require States to make a
determination of whether significant disproportionality exists in each
LEA, for each racial and ethnic group with 10 children (for purposes of
identification) and 10 children with disabilities (for purposes of
placement and discipline).
Does the Department's proposed minimum cell size of 10 align with
existing State privacy laws, or would the proposal require States to
change such laws?
(7) The Department has proposed to require that States use the
alternate risk ratio method only in situations where the total number
of children in a comparison group is less than 10 or the risk to
children in a comparison group is zero.
Are there other situations, currently not accounted for in the
proposed regulations, where it would be appropriate to use the
alternate risk ratio method? In these situations, should the Department
require or allow States the option to use the alternate risk ratio
method?
(8) The Department has proposed to require States to make a
determination of whether significant disproportionality exists in the
State and the LEAs of the State using a risk ratio or alternate risk
ratio. The statutory requirement in section 618(d)(1) of IDEA applies
to the Secretary of the Interior and States, as that term is defined in
section 602(31) of IDEA (which includes each of the 50 States, the
District of Columbia, the Commonwealth of Puerto Rico, and each of the
outlying areas). However, the Department notes that, for some of these
entities, performing a risk ratio or alternate risk ratio calculation
in accordance with these proposed regulations may not be possible
because of the lack of a comparison group of sufficient size (at least
10 children for purposes of identification and at least 10 children
with disabilities for purposes of placement or disciplinary removals).
As such, the Department is interested in seeking comments on how to
require entities, whose population is sufficiently homogenous to
prevent the calculation of a risk ratio or alternate risk ratio, to
identify significant disproportionality.
(9) The proposed regulation permits States to set different risk
ratio thresholds for different categories of analysis (e.g., for
intellectual disabilities, a risk ratio threshold of 3.0 and for
specific learning disabilities, a
[[Page 10989]]
risk ratio threshold of 2.0). The Department is interested in seeking
comments on whether the proposed regulation should include additional
restrictions on developing and applying risk ratio thresholds.
Should the Department allow or require States to use another
approach in developing and applying risk ratio thresholds? Are there
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?
Further, are there 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?
(10) The Department has proposed to require States to identify
significant disproportionality when an LEA has exceeded the risk ratio
threshold or the alternate 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 from the immediate preceding year. While States would have
flexibility to define ``reasonable progress''--by establishing uniform
guidelines, making case by case determinations, or other approaches--
the Department's proposal would only allow States to withhold an
identification of significant disproportionality in years when an LEA
makes discernable progress in reducing their risk ratio. The Department
is interested in seeking comments on whether to place additional
restrictions on State flexibility to define ``reasonable progress''.
(11) Research indicates that some LEAs may under-identify children
of color. While the focus of these regulations is on
overrepresentation, the Department specifically requests comments on
how to support SEAs and LEAs in preventing under-identification, and
ways the Department could ensure that LEAs identified with significant
disproportionality with respect to identification properly implement
their States' child find policies and procedures.
What technical assistance or guidance might the Department put in
place to ensure that LEAs identified with significant
disproportionality do not inappropriately reduce the identification of
children as children with disabilities or under-identify children of
color in order to avoid a designation of significant
disproportionality? How could States and LEAs use data to ensure that
children with disabilities are properly identified?
(12) The Department has proposed to require States to use
comprehensive CEIS to identify and address the factors contributing to
significant disproportionality. The Department is interested in seeking
comments on whether additional restrictions on the use of funds for
comprehensive CEIS are appropriate for children who are already
receiving services under Part B of the IDEA.
(13) The Department intends to monitor and assess these regulations
once they are final to ensure they have the intended goal of improving
outcomes for all children.
What metrics should the Department establish to assess the impact
of the regulations once they are final?
Please explain your views and reasoning in your responses to all of
these questions as clearly as possible, provide the basis for your
comment, and provide any data or evidence, wherever possible, to
support your views.
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 proposed 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 proposed regulations only upon a reasoned
determination that their benefits would 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 proposed 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,
[[Page 10990]]
assumptions, limitations, and data sources.
Need for These Regulations
As we set out in detail in our preamble, the overrepresentation of
children of color in special education has been a national concern for
more than 40 years. In its 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.
Again, after review of its data, if a State finds any significant
disproportionality based on race and ethnicity, it must provide for the
review and, if appropriate, revision of the policies, practices, and
procedures used for identifying or placing children; require the LEA to
publicly report on any revisions; and require the LEA to reserve 15
percent of its IDEA Part B subgrant to provide comprehensive CEIS to
children in the LEA, particularly, but not exclusively, children in
those groups that were significantly overidentified.
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 the
disparities in rates of identification, placement, and disciplinary
removal across racial and ethnic groups would suggest, as noted by the
GAO study and supported by the Department's own data analysis. 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 addition, there is a 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 comprehensive CEIS
funds do not allow LEAs to direct resources to those children directly
impacted by inappropriate identification nor does it allow LEAs to
provide early intervening services to preschool children, which could
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
The Department reviewed and assessed various alternatives to the
proposed regulations, drawing from internal sources and from comments
submitted in response to the June 2014 RFI.
Commenters responding to the RFI recommended that the Department
address confusion about two IDEA provisions intended to address racial
and ethnic disparities in identification for special education: (1)
Section 618(d) of IDEA, under which States must 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 in
identification, placement and disciplinary removals and (2) section
612(a)(24) of IDEA, under which States must have in effect policies and
procedures to prevent the inappropriate over-identification or
disproportionate representation by race and ethnicity of children as
children with disabilities. Commenters requested that the Department
develop a single definition such that ``significant
disproportionality'' and ``disproportionate representation'' would have
the same meaning to reduce confusion and bring these two provisions of
the law into greater alignment. The Department examined these statutory
provisions, along with a third provision addressing racial and ethnic
disparities, section 612(a)(22)(A) of IDEA, which requires States to
examine data to determine if LEAs have significant discrepancies in the
rate of long-term suspensions and expulsions of children with
disabilities among LEAs in the State or compared to such rates for
nondisabled children within such agencies. The Department determined
that efforts to define these three concepts--significant
disproportionality, disproportionate representation, and significant
discrepancy--to remove their distinguishing characteristics and
increase their alignment could contravene the relevant statutory
provisions.
Commenters also recommended that the Department create a model
methodology for determining significant disproportionality against
which State methodologies would be evaluated and approved or rejected.
The Department determined that such a strategy would not clarify for
States the minimum requirements for making determinations of
significant disproportionality and would significantly delay the
States' implementation of an approved methodology. In addition, the
Department had concerns that such an approach would increase burden on
many States in the event that initial submissions of a methodology were
rejected, creating the need for additional State submissions.
Internally, the Department considered an alternate definition of
risk ratio threshold that would have limited States to using a range of
numerical thresholds, not to exceed a maximum set by the Department.
The Department posited that such limitations might assist States in
identifying more LEAs with significant disproportionality where large
disparities in identification, placement and disciplinary removal
exist. The Department, however, acknowledges concerns raised in certain
comments to the June 2014 RFI that mandated thresholds might fail to
appropriately account for wide variations between States, including LEA
sizes and populations. The Department is also aware that, in the case
of the identification of children with disabilities, setting risk ratio
thresholds too low might create an adverse incentive--encouraging LEAs
to deny children from particular racial or ethnic groups access to
special education and related services to prevent a determination of
significant disproportionality. Given these competing concerns, the
Department asks a directed question in this NPRM regarding the
strengths and weaknesses of mandating specific risk ratio thresholds.
The Department also considered allowing States to continue to use the
weighted risk ratio method. The proposed regulations, however, limit
the States to the risk ratio and, if appropriate, the alternate risk
ratio methodologies, specify the conditions under which each must be
utilized, and disallow the use of the weighted risk ratio. The
Department's purpose in directing States to use the risk ratio and
alternate risk ratio methods are (1) to improve transparency with
respect to determinations of significant disproportionality across
States through the use of a common analytical method and (2) to limit
the burden of a transition to a new method for States as 41 States
already use some form of the method. While a number of States currently
use the weighted risk ratio method, that method fails to provide LEAs
and the public with a transparent comparison between risk to a given
racial or ethnic group and its peers, as
[[Page 10991]]
the risk ratio and alternate risk ratio methodologies do. Instead, with
a weighted risk ratio approach, the comparison is adjusted by adding
different weights to each racial and ethnic group, typically based on
State-level representation and is intended to improve risk ratio
reliability when size of certain racial and ethnic groups are small.
Given that the Department's proposal already includes three mechanisms
for addressing risk ratio reliability--(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 cell size requirement--the Department determined that the
potential benefits of the weighted risk ratio method were exceeded by
the costs associated with complexity and decreased transparency.
The Department also considered maintaining the current regulations
and continuing to allow States full flexibility to use their own
methodology for significant disproportionality determinations. However,
given that 22 States plus the Virgin Islands identified no LEAs with
significant disproportionality in 2012-2013 and the evidence of some
degree racial and ethnic disparity among LEAs in every State, the
Department determined that the a standard methodology would help States
to fulfill their statutory obligations under IDEA.
Discussion of Costs, Benefits and Transfers
The Department has analyzed the costs of complying with the
proposed requirements. Due to the considerable discretion the proposed
regulations would provide States (e.g., flexibility to determine their
own risk ratio thresholds, whether LEAs have made reasonable progress
reducing significant disproportionality), we cannot evaluate the costs
of implementing the proposed regulations with absolute precision.
However, we estimate that the total cost of these regulations over ten
years would be between $47.5 and $87.1 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 proposed requirements, taken as a whole, would
include: Ensuring increased transparency on each State's definition of
significant disproportionality; establishing an increased role for
State Advisory Panels in determining States' risk ratio thresholds;
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, and the incidence, duration, and type of disciplinary
removals from placements, including suspensions and expulsions; and
promoting and increasing comparability of data across States in
relation to the identification, placement, or 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 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 at a later date.
Benefits
The Department believes this proposed 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 draw attention to how States
identify and support LEAs with potentially inappropriate policies,
practices, and procedures as they relate to the identification,
placement, and discipline of children with disabilities. 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 appropriate 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 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 discrepancies 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 the IDEA and
that States are prepared and able 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
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 such
disciplinary actions. (Council of Statement Governments, 2011.)
The Department believes that suspensions and expulsions can often
be avoided, particularly if LEAs utilize 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 proposed regulation clarifies 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 reform 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.
[[Page 10992]]
Under section 613(f) of IDEA and 34 CFR 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 be used to also support children with
disabilities and children ages three through five, the proposed
regulation 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
be identified later as having a disability, which could reduce the need
for more extensive special education and related services at a later
date.
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 proposed
rules.
The following section provides a detailed analysis of the estimated
costs of implementing the proposed requirements contained in the new
regulation.
Number of LEAs Newly Identified
In order to accurately estimate the fiscal and budgetary impacts of
this proposed regulation, the Department must estimate not only the
costs associated with State compliance with these proposed 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 would 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, our estimates are highly sensitive to our
assumptions regarding this number. In 2012-2013, the most recent year
for which data are available, States identified 449 out of
approximately 17,000 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.
The proposed 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 proposed regulations may not result in any
additional LEAs being identified as having significant
disproportionality. However, we believe that this scenario is unlikely
and therefore would represent an extreme lower bound estimate of the
cost of this proposed regulation.
We believe it is much more likely that the necessary methodological
changes required by this proposed 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 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 States will set in consultation with their State
Advisory Panels and therefore do not know the number of LEAs that would
be identified by such new thresholds. However, for purposes of these
cost estimates, we assume that such changes would result in 400
additional LEAs being identified each year nationwide. This number
represents an approximately ninety percent increase in the number of
LEAs identified by States each year. The Department assumes that
changes in State policy are potential and likely outcomes of these
proposed regulations; therefore, the number of new LEAs that may
potentially be identified should be reflected in our cost estimates.
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 will be 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.
Cost of State-Level Activities
The proposed regulations would 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. The
proposed regulations require States to set a risk ratio threshold,
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, and; (2) consider, in making determinations of
significant disproportionality, whether LEAs have made reasonable
progress at reducing disproportionality. Finally, this regulation would
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 proposed
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 a risk
ratio threshold, 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 proposed regulations, States would have to take
time to review the proposed regulations, determine how these proposed
regulations would 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
[[Page 10993]]
($61.66), at 16 hours each for a total one-time cost for the 50 States,
the District of Columbia, Puerto Rico, the Bureau of Indian Education
(BIE), Guam, American Samoa, and the Virgin Islands of $238,610.\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 http://www.bls.gov/oes/current/999201.htm) multiplied by an employer cost for employee compensation
of 1.57 (see http://www.bls.gov/news.release/ecec.toc.htm).
---------------------------------------------------------------------------
Since no State currently calculates significant disproportionality
using the exact methodology being proposed in this regulation, each
State would need to modify its data collection tools. To estimate the
cost per State, we assume that State employees would likely include a
Database Manager ($52.32) and a Management Analyst ($44.64) at 16 hours
each for a total one-time cost for the 50 States, the District of
Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin
Islands of $86,880. 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 would 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, we assume that State employees would
likely include a Special Education Director ($63.04) for 3 hours, 5
Management Analysts ($44.64) for 16 hours, 2 Administrative Assistants
($25.69) for 8 hours, a Computer Support Specialist ($35.71) for 2
hours, and 2 lawyers ($61.66) for 16 hours, for a total one-time cost
for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam,
American Samoa, and the Virgin Islands of $348,090.
Additionally, proposed changes under Sec. 300.646(d) would 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 would have to
review their existing processes to ensure that LEAs are provided with
appropriate support to identify such contributing factors and use funds
for comprehensive CEIS in ways that are appropriately targeted to
address such contributing 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, BIE,
Guam, American Samoa, and the Virgin Islands of $120,070.
Under the new regulations, States must also determine a risk ratio
threshold based on the advice of stakeholders, including State Advisory
Panels, as provided under section 612(a)(21)(D)(iii) of IDEA. In order
to estimate the cost of implementing these requirements, we assume that
the average State would likely initially meet this requirement in Year
1 and revisit the thresholds 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 eight 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 2 hours,
one State employee in a managerial position ($51.50) for 16 hours, one
Management Analyst ($44.64) for 16 hours, and one Administrative
Assistant ($25.69) for 16 hours. Based on these participants, we
estimate that consultation with the State Advisory Panels would have a
cumulative one-year cost of $294,760 for the 50 States, the District of
Columbia, Puerto Rico, BIE, 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.
---------------------------------------------------------------------------
Annual Calculation of Risk Ratios and Notification of LEAs
In addition to the initial costs outlined above, States would incur
annual costs associated with calculating risk ratios, making
determinations of significant disproportionality, and notifying LEAs of
determinations.
Proposed Sec. 300.647 would require every State to annually
calculate significant disproportionality for each LEA using a risk
ratio or alterative risk ratio method in every category of analysis (as
defined in this notice of proposed rulemaking) that meets the minimum
cell size (with the minimum cell size being a number, 10 or lower,
determined by the State). States would then be required to identify
LEAs above the risk ratio threshold with significant
disproportionality. When making a determination of significant
[[Page 10994]]
disproportionality, States would be allowed to use three years of data,
and take into account whether LEAs demonstrate reasonable progress at
reducing significant disproportionality. To estimate the annual cost
per State, we assume that State employees involved in this calculation
would likely include 3 Management Analysts ($44.64) for 24 hours and
one Administrative Assistant ($25.69) for 6 hours for an annual cost of
$188,620 for the 50 States, the District of Columbia, Puerto Rico, BIE,
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. If we assume 400
new LEAs are identified with significant disproportionality, the annual
cost would be $7,720.
Review and Revision of Policies, Practices, and Procedures
States are required to provide for the review and, if appropriate,
the 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 2 Management Analysts ($44.64) for 6
hours for each LEA. If we assume 400 new LEAs are identified with
significant disproportionality each year, the annual cost would be
$150,620 for the 50 States, the District of Columbia, Puerto Rico, BIE,
Guam, American Samoa, and the Virgin Islands.
Many States require LEAs identified with significant
disproportionality to 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 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 http://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 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.
---------------------------------------------------------------------------
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 allocation for
comprehensive CEIS. Any LEAs fitting into this category would 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 such
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 2-
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 $901,020.
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 allocations 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 .25 hours for each LEA. If we assume 400 new
LEAs are identified with significant
[[Page 10995]]
disproportionality, the annual cost would be $4,460.
Federal Review of State Risk Ratio Thresholds
Under proposed Sec. 300.647(b)(1)(ii), the risk ratio thresholds
established by States would be 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 and then monitor the thresholds again in any year in which a
State changes its risk ratio thresholds. To estimate the annual cost of
reviewing risk ratio thresholds, we assume that Department staff
involved in such reviews would likely include one management analyst at
the GS-13 level ($73.95 \10\), and take 1 hour each for the 50 States,
the District of Columbia, Puerto Rico, BIE, 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 $771.50.
---------------------------------------------------------------------------
\10\ This loaded hourly wage rate is based on the hourly
earnings of a GS-13 step 3 federal employee in Washington, DC. (See:
https://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 2011-12, the Department estimates that 15
percent of the average LEA section 611 and section 619 subgrant
allocation 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 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
NPRM, the proposed 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 proposed 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 proposed changes, for 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 proposed regulation because we consider it highly unlikely that
there would be no additional LEAs identified. As noted above, the
Department's choice 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 thresholds 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 proposed rules. In order to estimate an upper
bound, the Department assumes that States could set much more
aggressive thresholds 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 proposed 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 proposed 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 3 percent discount rate.
Table 8--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 $1,508,620 $1,508,620 $1,508,620
data collection tools, meeting with State Advisory Panels,
drafting and issuing guidance to LEAs).........................
Annual calculation of risk ratios and notification of LEAs...... 2,454,359 2,554,807 2,755,702
Review and, if necessary, revision of policies, practices, and 0 56,205,180 168,615,538
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
----------------------------------------------------------------------------------------------------------------
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
[[Page 10996]]
Does the format of the proposed regulations (use of
headings, paragraphing, etc.) aid or reduce their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 300.646 Disproportionality.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand see the instructions in
the ADDRESSES section.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The U.S. Small Business Administration (SBA) Size Standards define
``small entities'' as for-profit or nonprofit institutions with total
annual revenue below $7,000,000 or, if they are institutions controlled
by small governmental jurisdictions (that are comprised of cities,
counties, towns, townships, villages, school districts, or special
districts), with a population of less than 50,000. These proposed
regulations would affect all LEAs, including the estimated 17,371 LEAs
that meet the definition of small entities. However, we have determined
that the proposed regulations would not have a significant economic
impact on these small entities.
Pursuant to this proposed regulatory action, if States chose to
increase their level of accountability with respect to
disproportionality on the basis of race and ethnicity, there would be
increasing costs for LEAs that have been identified with significant
disproportionality as defined by the State. Nonetheless, based on the
limited information available, the Secretary does not believe that the
effect of these changes would be significant. The number of new LEAs
identified with significant disproportionality will depend upon the
extent to which States exercise their flexibility to determine
reasonable progress made by LEAs at reducing significant
disproportionality, the number of years of data used to make
determinations of significant disproportionality, and the risk ratio
thresholds set by the State. There are no increased costs associated
with this regulatory action for LEAs that are not identified with
significant disproportionality.
Paperwork Reduction Act of 1995
This NPRM contains information collection requirements that are
subject to be reviewed by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). These
proposed regulations contain information collection requirements that
are approved by OMB under OMB control number 1820-0689; these proposed
regulations do not affect the currently approved data collection.
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 accordance with section 411 of the General Education Provisions
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on
whether these proposed regulations would 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 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 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.
(Catalog of Federal Domestic Assistance Number 84.027, Assistance to
States for Education of Children with Disabilities)
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.
Dated: February 19, 2016.
John B. King, Jr.,
Acting Secretary of Education.
For the reasons discussed in the preamble, the Secretary of
Education proposes to amend 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, 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
[[Page 10997]]
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. 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; and
(ii) Must identify and address the factors contributing to the
significant disproportionality, which may include 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.
(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.
(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 for children in one racial or ethnic
group within an LEA by the risk for children in all other racial or
ethnic groups in the State.
(2) Risk is the likelihood of a particular outcome (identification,
placement, or disciplinary removal) for a specified racial or ethnic
group, calculated by dividing the number of children from a specified
racial or ethnic group experiencing that outcome by the total number of
children from that racial or ethnic group enrolled in the LEA.
(3) 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.
(4) 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), the State must--
(1) Set a reasonable risk ratio threshold for each of the
categories described in paragraphs (b)(3) and (4) of this section that
is:
(i) Developed based on advice from stakeholders, including State
Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the
Act; and
(ii) Subject to monitoring and enforcement for reasonableness by
the Secretary consistent with section 616 of the Act;
(2) Apply the risk ratio threshold 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) Calculate the risk ratio for each LEA, for each racial and
ethnic group in paragraph (b)(2) of this section that includes a
minimum number of children not to exceed 10, 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) Calculate the risk ratio for each LEA, for each racial and
ethnic group in paragraph (b)(2) of this section that includes a
minimum number of children with disabilities not to exceed 10, 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 more than 40 percent of the day and less than 79 percent
of the day;
(ii) For children with disabilities ages 6 through 21, inside a
regular class less than 40 percent of the day;
(iii) 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;
(iv) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of 10 days or fewer;
(v) For children with disabilities ages 3 through 21, out-of-school
suspensions and expulsions of more than 10 days;
(vi) For children with disabilities ages 3 through 21, in-school
suspensions of 10 days or fewer;
(vii) For children with disabilities ages 3 through 21, in-school
suspensions of more than 10 days; and
(viii) 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) Calculate an alternate risk ratio with respect to the
categories described in paragraphs (b)(3) and (4) of this section if--
(i) The total number of children in all other racial and ethnic
groups within the LEA is fewer than 10; or
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(ii) The risk for children in all other racial and ethnic groups
within the LEA is zero; and
(6) Except as provided in paragraph (c) of this section, 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.
(c) 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 the 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 three prior consecutive years
preceding the identification; and
(2) The LEA has exceeded the risk ratio threshold or the alternate
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 from the immediate preceding
year.
Authority: 20 U.S.C. 1418(d).
[FR Doc. 2016-03938 Filed 3-1-16; 8:45 am]
BILLING CODE 4000-01-P