September 5, 2002

Jacquelyn C. Jackson, Ed.D.

Acting Director

Student Achievement and School Accountability Programs

Office of Elementary and Secondary Education

U.S. Department of Education

400 Maryland Avenue, SW

Room 3W230, FB-6

Washington, DC 20202-5132

Dear Ms. Jackson,

We appreciate the opportunity to comment on the most recent set of proposed Title 1/NCLB regulations. NAPAS is the voluntary membership association for the Protection and Advocacy (P&A) System and the Client Assistance Program (CAP), which comprise the nationwide network of congressionally mandated, legally-based disability rights agencies. P&A agencies have the authority to provide legal representation and other advocacy services, under all federal and state laws, to all people with disabilities (based on a system of priorities for services). There is a P&A agency that provides free legal assistance to people with disabilities in each state and territory in the U.S. Traditionally, P&As have placed a high priority on assisting students with disabilities in education related matters, and we are one of the largest, if not the largest, providers of advocacy assistance to IDEA eligible students in the U.S.

The proposed regulations, which are quite broad in scope and are generally positive, raise some important questions and concerns. We will restrict our comments here to the proposed regulations themselves and not the statute they interpret. It would not be reasonable to infer that we endorse the statute itself from these comments -- only that there are certain aspects of the proposed regulations that are positive interpretations of the statute as it is currently written. As such all references are to 34 C.F.R. 200.11 et seq.

Generally Positive Requirements

1. States must define Adequate Yearly Progress (AYP) in a manner that applies the same intermediate goals, annual measurable objectives and other academic indictors to students with disabilities (222.13(b)(7)(C)) as it does to all other students. (Please see related comment in "Concerns" section).

2. Students who take the alternate assessment are expected to meet the regular state standards. (200.13(c)(1)). (Again, please see comment in "Concerns" section). It must be noted, that in 200.20(b), that this requirement is substantially weakened because the improvement for students with disabilities must only increase by 10% per year in order for AYP to be met ( Per 200.20 (b) the number of all students in the subgroup "students with disabilities" who are below the proficient level must have decreased by 10% from the preceeding year and progress made on one academic indicator). Hence, it is inaccurate to state that all students, including students with disabilities, are truly held to the same standards.

3. For students with disabilities, the public choice option must provide free appropriate public education. (200. 44(i)) This is a noteworthy clarification, as it is critical that any public choice option continue to uphold IDEA standards of providing a free appropriate public education for children with disabilities.

4. All students attending a school identified for improvement will benefit from the requirement that strategies drawn from scientifically based research must be included in the school's improvement plan (200.41(c)(2)(i)). Students with learning challenges, especially, will benefit from being taught using the most effective methods available.

5. Requirements that include students with disabilities and their IEPs in programs providing supplemental educational services are very positive. (200.46(a)(4), 200.46 (b)(2)(i)(C), 200.47(a)(5) and 200.47(b)(3)).

Concerns

1. It appears that proposed regulation 200.13(c)(1) is not authorized by the statute. NCLB Secs. 1111(b)(1)(A) and (b)(2)(C)(i) make it clear that the same academic achievement standards apply to all students within the state. The statute already exempts 5% of the state's students with disabilities from the assessments (Sec. 1111(b)(2)(I)(ii)), which should the serve the purpose that we assume the drafters of the proposed regulations were hoping to achieve -- recognizing that some students will not achieve at grade level as defined by the state achievement standards.

However, 200.13(c) allows the state to create a completely different set of standards for .05% of all students in the grade assessed. What is the purpose for this lower set of standards that the alternate assessment does not itself achieve? Even if this provision allowing lowered standards had a proper purpose, which we dispute, it is not authorized by the statute and should be removed.

A second set of standards is inappropriate for several reasons: 1) The distinction between these students and other students with cognitive disabilities is arbitrary - the number was selected based on "actuarial data" rather than documented differences in learning capabilities. It is these very individual differences that are the reason that the IDEA requires that the IEP team determine which students should take the alternate assessment; 2) This option would allow a district to set standards for a student that differ from the decision of the IEP team, in violation of the IDEA; 3) We are concerned that these standards would be based on "process" rather than actual achievement (e.g. "Progress toward completion of IEP goals").

2. The definition of "highly qualified teacher" (200.55 and 200.56) does not include third party contractors, ostensibly even if those teachers are paid with Title 1 funds. Teachers, who work for private contractors and are thus hired indirectly by the school district can compose a sizable percentage of the workforce in some districts. This is a large loophole that will encourage districts struggling to meet the law's standards to hire more teachers who are not employed by the district. In order to ensure teacher quality, all teachers working in an eligible school should be required to meet the same standards for qualification, regardless of their employer.

3. LEAs must be required to reserve funds not only to meet the needs of eligible students in the types of institutions described in the proposed regulations (e.g. "children in local institutions for neglected children") but also eligible students with disabilities served in separate schools for students with disabilities, psychiatric residential treatment facilities, intermediate care facilities and other such settings (200.77). These students are equally needy and often un-served or underserved.

Questions

1. The language in 200.13(d) is confusing to us. Does the phrase "…schools in which no grade level is assessed under the State's academic assessment system…or schools whose purpose is to serve students for less than a full academic year…" include "alternative schools" and those referred to in the IDEA as "Interim Alternative Educational Settings"? A great many students with disabilities are placed in both alternative schools and "Interim Alternative Educational Settings."

As these schools are exempt from assessment and, therefore, the state academic standards and their consequences, it appears that states could evade the requirement that students with disabilities meet the state's academic standards by placing them in schools with no grade levels and/or schools whose purpose is to serve students for less than a full academic year. If so, this again provides a loophole sufficient to defeat the claim that students with disabilities are actually held to the same academic standards as other students.

Thank you for the opportunity to comment on these proposed regulations. Feel free to contact us for any further information you require at (202) 408-9514.

Sincerely,

Kathy McGinley

Deputy Executive Director for Public Policy, NAPAS

Diane Smith

Sr. Disability Legal Specialist, NAPAS