December 19, 2016

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AASA Analysis of IDEA Significant Disproportionality Regs

Last week, in the waning hours of the Obama Administration, the U.S. Department of Education released the final regulation on the calculation of significant disproportionality under IDEA. Here is a press release that summarizes the reg from ED: States and districts are not required to comply with these regulations until July 1, 2018. It is our hope that the Congress will delay the implementation of this regulation and address the important issue of significant disproportionality through the reauthorization of IDEA rather than through a Department regulation.

AASA appreciates how many school leaders took the time to comment on the IDEA regulation, and as we read through the 500+ pages of response and clarifications from ED we see that your comments forced the Department to address many of our objections with the proposed regulation. Unfortunately, while ED has been forced to contemplate and respond to our many criticisms of their proposal (albeit somewhat flippant responses at times), they did honor five of our of our requests:

  • States have flexibility not to identify significant disproportionality in an LEA that exceeds a risk ratio threshold if they make reasonable progress in lowering the applicable risk ratio or alternate risk ratio in each of the two consecutive prior years.
  • They eliminate as a category of analysis 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
  • Provide more flexibility around the n-size and cell-size that states must use. States need not calculate risk ratios for any racial or ethnic group that does not meet minimum cell or n-sizes set by the state.
  • Allowing States to set different risk ratio thresholds in order to reasonably identify significant disproportionality for categories with different degrees of incidence rates, and, therefore, different degrees of disparity.
  • Not mandating districts be held responsible for significant disproportionality for students with the seven low-incidence impairments under IDEA.  

What does this mean for districts? The final regs contain the following:

  • A rebuttal presumption that a minimum cell size of no greater than 10 and n-size of no greater than 30 are reasonable. We believe ED does not have the authority to put pressure on states to adopt a certain n size or cell-size and this aspect of the regulation is wholly inappropriate.
  • ED has significantly expanded the focus on significant disproportionality in the discipline context. The regs 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.
  • ED has refused to grant critical flexibility to districts that are found to have significant disproportionality that would allow these LEAs to be excused from setting aside 15% of IDEA funds for CEIS for the following reasons: 1) an exceptionally low student population where the addition or subtraction of a few students results in meeting/not meeting the State’s risk ratio, 2) a school serving a specific subgroup of students with disabilities, 3) a highly regarded program for students with disabilities that attracts students from across the State or region, 4) residential facilities or group homes within the district, 5) a recent environmental catastrophe specific to the region that has substantially impacted the health of children throughout the district, 6) very low rates of special education identification, restrictive placements or exclusionary discipline for all students and 7) a highly mobile student population.
  • Districts can use funds for CEIS for students currently enrolled in special education. While we appreciate this flexibility, it is not authorized in the statute.
  • The Department estimates that districts will have to transfer between $298.4 and $552.9 million that they use under Part B to provide direct services for students with disabilities to early intervening services.We believe these estimates are quite low.