Council of New York Special Education Administrators Mandate Relief 2011 Position Paper

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1 Yvette Goorevitch Granite Springs Post Office Karen Kemp Co-President Post Office Box 36 Co-President Granite Springs, NY Council of New York Special Education Administrators Mandate Relief 2011 Position Paper In consideration of the mandate relief proposals being presented in the Governor s budget, by the Legislature and by the Board of Regents, we offer the following comments and recommendations. Eliminate state law and regulations that impose greater costs on local districts and exceed federal law mandates New York laws and regulations far exceed federal mandates. 1 However, some are so costly that they should be repealed now to eliminate the additional costs they unnecessarily impose on local districts. Eliminate state mandated class sizes for students with disabilities and resource rooms while maintaining a full continuum of services and supports for students with disabilities In 1975, when the IDEA (then EHA) was first signed into law, its emphasis was on the identification, evaluation and placement of students with disabilities, many of whom were excluded from education altogether. In New York, the system created to implement the federal law, adopted a segregated delivery model, which provided for smaller classes exclusively serving students with disabilities, whose teachers were certified K-12 in special education. Until the early 1990s the only standard or expectation guiding the instructional programs offered to such students, was the IEP. There were no obligations to provide them access to the general curriculum and no requirement or expectation that they take state tests. Consequently, the instruction they received often was not, a means to an end (earning a high school diploma). By the late 1990s, the federal law shifted its focus from identification, evaluation and placement to a comprehensive system that stressed equality and access to the same standards and instructional programs for all students, whether or not disabled. The message was clear - states could no longer maintain a double standard, one for students with disabilities and another one for the rest of the student population. 1 In response to the 2004 amendments in federal law, the State Education Department has compiled a summary of state laws and regulations that supersede federal law. In 2011, that list consists of 31 pages listing more than 200 state statutes and regulations that either supersede or are not mandated by federal law. The list is available at [

2 Page 2 of 9 Yet, due to its early commitment to a structure built on separate classes for students with disabilities, New York found itself behind. Notably, it was not until the early 1990s that New York even included in its regulatory scheme, the original 1975 federal mandate that prohibits the removal of students with disabilities from regular classes, except when, due to the severity of a disability or extent of need, the student could not receive educational benefits even with supports and services. Without ever abandoning its original commitment to a structure that provided for small segregated classrooms, New York has spent years struggling with how to raise standards and outcomes for students with disabilities and to decrease the time they spend in separate schools and classes. With the passage of No Child Left Behind and federally defined standards for special education teachers that require competencies in core curriculum areas, New York s antiquated system of segregated classes faced a new series of challenges. To address it, the State Education Department added to its continuum of services an integrated co-teaching model in That addition to New York s continuum was the first in years, which followed another mandate relief initiative that resulted in the addition of a 15:1 class size option. From the 1970s, however, New York maintains to this day mandated class sizes ranging from 6:1:1 to 15.1 with several prescribed class sizes in between NYCRR.200.6(h)(4). 3 The system we have maintained rules without reason. The rules governing class sizes not only tie the hands of local districts, they eliminate opportunities for replacing them with innovative models, built on current research, that are designed to raise achievement for all students concurrently in order to meet state standards. We recognize the reasons the State introduced special education through the development of small segregated classes in the 1970s. However, with its long standing commitment and recognition of the benefits of educating students with disabilities with their peers, and the introduction of accountability and standards applicable to all students at the federal level, we find New York s continued enforcement of mandated class sizes for students with disabilities, a major impediment to the fundamental changes we need to make While we continue to urge a complete overhaul of the current continuum of services we seek the immediate reinstatement of the regulation that previously allowed districts to impose changes in class size upon notification to the Department. For now, a reinstatement of the flexibility the regulation provided will result in immediate cost savings and a significant reduction in paperwork. 2 That model requires a special education certified teacher and a general education teacher to work together in a class that allows no more than 12 identified students with disabilities. (the Regents recently promulgated a regulation in December that allows districts to secure a variance or waive the limit) to attend general education classes. 3 On July 1, 2010, Education Law 4402(2)(d) and (6) which offered some flexibility to larger school districts allowing them to increase class sizes upon notice to parents and to the Commissioner, sunset. At a minimum, we urge that these provisions be renewed.

3 Page 3 of 9 Reexamine teacher training and certification to foster greater integration of students with disabilities in general education classes As the State continues to seek greater integration of students with disabilities with the rest of the student population and improved outcomes, another impediment involves the training and certification of our teachers. Despite the federal definition that requires highly qualified teachers for students with disabilities in secondary education to have certification in the core curriculum being taught, New York maintains a separate system of certification for special education and general education teachers. As mentioned above, in order to afford greater integration and to meet current federal standards, the Department added to its continuum an integrated co-teaching model that effectively doubled the cost of educating students without disabilities by requiring a second teacher in the room to accommodate the needs of students with disabilities. Without the creation of one certification based on training in content areas and special education, the possibilities for integrating students with and without disabilities remains limited. 4 To address these challenges, we urge the consolidation of special education and general education certification into one that gives all teachers the knowledge and training necessary to address, whether through individualized education or through differentiated instruction, the wide variety of learning abilities our students present and the skill to teach a required content area. For students with disabilities who are unable to meet state academic standards due to the severity of their disabilities, we urge specialized training in higher education predicated on state-ofthe-art research based instructional methods, with special areas of certification, to support and educate the most challenged segment of our student population. Amend Education Law 3602-c that creates an entitlement to special education for students parentally placed in private schools Historically, New York offered special education services for students with disabilities whose parents enrolled them in nonpublic schools from their districts of residence (Educ. Law 3602-c). The 2004 amendments to IDEA created a new mandate that required the school district where a nonpublic school was located to consult with nonpublic schools and to provide special education supports up to a prorated share of its federal IDEA dollars. Instead of conforming New York s system to federal law, our State took its existing system of entitlements and simply shifted its previous mandate from the district of residence to provide individual entitlements to special education services for such students along with full due process protections (which are not in federal law) to the district where the nonpublic school is located, thus creating a new and highly complex bureaucracy that requires the transfer of payments between districts to reimburse the cost of 4 This is not to suggest the elimination of certain master teachers trained in the most up to date research based methodologies to work with the most disabled populations, including students with autism, mental illness and mental retardation. Combined, however this population makes up less than 20% of our special education population with the vast majority classified learning disabled, other health impaired or speech language impaired.

4 Page 4 of 9 services only. 5 For students parentally placed who require summer services, New York has no provision, leaving families who must work with their district of location during the school year to return to their districts of residence to secure them. The system is disjointed and extraordinarily complex. Despite the federal law, which essentially pays for itself, New York s amendments place new and costly obligations on school districts while adding a new layer of demands for fiscal management. In its place, we urge New York to amend state law to reflect federal law. If the State wishes to subsidize the federal dollars available to support students with disabilities enrolled by their parents in nonpublic schools it can do so by following the federal model and extending state aid to those students to augment the federal share without shifting any additional cost to the local tax payer. Amend state law regarding CSE membership to conform to federal requirements In accordance with the recommendations of the Board of Regents, we support amendment to state law to conform the membership of NY s committees on special education 6 to federal mandates. This would mean the elimination of the school psychologist as a mandated member of the committee and as a sometimes member of the subcommittee and the elimination of the school s physician, on request. In addition, it would eliminate the extra parent member, a person initially assigned to committees in New York in 1975 when the parents of the children with disabilities, under review, were not recognized. Although state law has since been amended to recognize them, the additional parent member remains a mandated member under New York law, unless declined by the parent of the child under review. In the meantime, state law was amended in 1997 to reflect other changes in federal law that recognizes the parents right to invite anyone they choose who has knowledge of their child. At the same time, the changes in the structure of the family and in our economy in the past 40 years, made it increasingly difficult for districts to find parents willing or able to volunteer their time. Consequently, in too many cases, districts are simply unable to meet this mandate. Therefore, we recommend, in view of the changes in federal law and the changing realities, that the Committee membership be amended to reflect federal law, which provides in place of the additional parent member, the Parents right to invite anyone they choose to participate with the Team responsible for making recommendations for their child. Eliminate the requirement that an individual evaluation include specific assessments, prescribed by state regulation We support the Department s recommendation to repeal the state regulation that automatically requires specific assessments upon the referral of any student suspected of 5 Unlike the provision that requires a transfer of funds from the district of residence to the district of location (or through state aid, where necessary) NY law authorizes a parent who disagrees with the recommendation for services offered from the district of location to obtain a full due process hearing to challenge it. However, New York law provides no mechanism to reimburse that district for its due process costs in the event it chooses to defend the program it offered. 6 Comments and recommendations regarding the composition of Committees on Special Education include subcommittees and preschool committees.

5 Page 5 of 9 a disability (social history, psychological assessment or evaluation, physical examination and classroom observation) without exception, and a functional behavior assessment upon an initial referral when the student s behavior impedes learning. Unlike state regulations, federal law mandates the use of a variety of assessment tools and strategies to gather relevant functional, developmental and academic information, and technically sound instruments that may assess the relative contribution of cognitive and behavioral factors prior to any determination of eligibility or development of an IEP. In addition, with the introduction of Response to Intervention (RTI) as an alternative and effective researched based method for identifying students with learning disabilities, (soon to be mandated in New York for students K-4) the elimination of prescribed testing will result in immediate cost savings by eliminating a mandate to perform specific tests regardless of the need to do so. Repeal the law that obligates district to transport students attending nonpublic school up to 50 miles from home New York Education Law 4402(4)(d)(2) requires school districts to transport, up to 50 miles each way, students with disabilities parentally placed in nonpublic schools where the purpose of the placement is to provide services and supports similar to those recommended by the child s committee on special education. With the cost of fuel and transportation ever rising, this provision has proven to be one of the most expensive single entitlements for public schools. 7 When originally enacted, the law was intended to provide transportation for parentally placed students whose parents enrolled their students at their own expense in special schools similar to ones recommended by the district s committee on special education. Enacted long before federal law was amended to authorize parents to sue the public schools to secure tuition reimbursement, Districts have been forced to transport children while the parents are suing for tuition. The law has also been interpreted to require districts to transport student s long distances at the same time they provide them with dual enrollment special education services. Finally, according to decisions issued by NY s State Review Officer this law has been interpreted to require public schools to transport students to nonpublic schools that serve the general population where the student is receiving nothing more than a resource room pr related services. In view of several changes in state and federal law, this law is now being interpreted in ways that are not only extremely costly but in ways never contemplated by the Legislature. Therefore, unless it can be amended to reflect its original purpose to provide transportation for children with severe disabilities whose parents elected to arrange, at their expense, for their education in special schools as recognized by their own committees, we urge its repeal. 7 It is not uncommon to have districts spending more to transport a child to a special school than it spends on tuition.

6 Page 6 of 9 Maintain New York State s commitment to support the education of students with the most significant disabilities Special education was intended to support students with disabilities to enable them to access the general education curriculum. The state s proposal to shift certain costs traditionally assumed by the state for summer programs, placement in 4201 schools and residential placements to the local tax payer, will further reduce districts capacity to fund programs for its remaining students. To avoid any further loss of state support at the local level, we urge the state to maintain its commitment to support the increased cost of educating the State s most disabled students. Eliminate state mandates for District Plans and Space Plans for special education These mandates are not only extremely time consuming; they provide no discernible child centered benefit. The elimination of these state imposed mandates will not only save time and money they will free up time to enable staff to support those initiatives such as Positive Behavioral Interventions and Supports (PBIS) and Response to Intervention (RTI), both proven interventions that produce positive results for students and education. At a time when the state is requiring more and more data from local districts to satisfy federal reporting mandates on the state, it is time to reexamine all state imposed mandates that demand more time on paper work that inevitably result in less time devoted to direct service. Assembly proposal for the elimination of the State Review Office The elimination of the second tier of NY s administrative due process system will only result in savings to school districts, if done with the state s commitment to create and replace it with a structure that provides for monitoring, oversight and accountability for the state hearing officers who must be appointed, in accordance with federal law, to replace the state review officer. Under the current two-tier system, New York maintains a rotational list of certified local hearing officers. As parents, districts and their attorneys would agree, their skills, knowledge and abilities vary widely. Similarly, the decisions they issue, the rulings they make, and the length of hearings run the gamut. Despite the wide variation in the skills and abilities of hearing officers, school districts have no discretion in their selection and must accept the next available hearing officer from the state maintained rotational list. Other than a tracking system, periodic mandated State Education Department training and a process that allows parties to file individual complaints against hearing officers, there is no structure in place that provides for ongoing oversight, monitoring and accountability for their performance. Due to the wide variation in the competence of existing certified hearing officers, the State Review Office provides to both parties, an additional administrative layer

7 Page 7 of 9 of protection against arbitrary decision-making. The SRO has also served to provide consistency and uniformity in the interpretation and application of the law. In other cases, it provides a check and balance against hearing officers, whose biases are so well known that, upon their selection, the outcome of hearing is easily predicted. 8 Some hearing officers respect state and federal timelines while others allow for lengthy adjournments and prolonged hearings. 9 Without the creation of a statewide structure that enforces standards and consistency through monitoring, oversight and accountability of state hearing officers, the elimination of the state review officer, would leave for a losing party, only the court s review. Such review is not only far more costly and far more complex than the current second tier administrative review; it provides no timelines for the issuance of decisions. 10 Given the court s standard of review, which provides deference to state hearing officers (or the state review officer in a two tier system) on matters involving educational policy (specifically the provision of a free and appropriate public education), flawed decisions issued in a one tier system will, in most cases, become the law of the case. With a genuine commitment to replace the State Review Office with an office of highly trained state hearing officers, we support an initiative to eliminate the second tier of review, This initiative must proceed cautiously and at a minimum include statewide hearings, a study of other states with one tier systems and a review of existing state agencies that use state hearing officers. To the extent, there is consideration of designating existing local level hearing officers to become state hearing officers; we urge a comprehensive assessment of their performance. Recommendations for immediate cost effective mandate relief under the current two-tier due process system. In order to afford immediate mandate relief and greater efficiencies in the current due process system, we urge serious consideration and support for the following proposals this year: Repeal state law that places the burden of proof and burden of persuasion on school districts Despite the general rule that places the burden of proof and the burden of persuasion on the complainant and the IDEA which also places the burden of persuasion on the complainant, New York passed a law in 2007, which shifted the burden of proof and burden of persuasion to school districts. Inevitably, that shift resulted in longer hearings and less efficiency. With the 8 Unfortunately, at different times, similar complaints have been lodged against the Department s State Review Officer by parents and districts 9 Hearings range from one day to weeks and sometimes months. State regulations provide for two-day hearings. Without factoring in the cost of attorneys or staff replacements and preparation the hearing cost for districts per day is approximately $2000. Adding in the cost of attorneys, preparation and staff coverage the per diem cost runs closer to $5000 a day. 10 In contrast, federal law requires state review officers to issue decisions within 30 days of the filing of a Complaint and 45 days for hearing officers following the end of the resolution period.

8 Page 8 of 9 burden on the district, a district must anticipate the arguments and proof ultimately offered by the parents and wait to address them in a rebuttal case. The process places the cart before the horse, resulting in prolonged hearings and heightened expense. Repeal state law that provides a two-year statute of limitations As authorized by federal law, we urge repeal of state law which provides for a two-year statute of limitations in IDEA cases to be replaced with the prior one year statute of limitations adapted through case law and a 90 day statute of limitations in claims for tuition reimbursement. Under the current two-year statute of limitations, even though the law requires districts to review and revise Individualized Education Programs (IEPs) on an annual basis, the two-year statute of limitations allows parents to delay their legal challenge. Consequently, decisions issued on complaints filed after a school year has ended, not only risk dismissal as moot, but eliminates any possibility that the district can take timely corrective action to address any shortcomings found. A two-year statute of limitations also undermines the cooperative model contemplated by the IDEA to develop appropriate IEPs, reviewed annually. Furthermore, a statute of limitations that fails to support the timely resolution of disputes, fails to serve the interests of students or school districts. Provide for the continuing appointment of the same hearing officer in cases involving the same parties and same issues To eliminate costly forum shopping and duplication, we urge amendment to the current regulations governing the appointment of hearing officers to require, unless both parties agree otherwise, the reappointment of the same hearing officer to hear a second complaint involving the same parties, the same historical facts and similar issues. Under the current regulatory scheme, parents are free to file a new hearing request to secure a new hearing officer. Such a system not only supports forum shopping, it guarantees duplication, inefficiency and increased costs. To avoid these expensive outcomes, we urge amendment to the regulations to address these common and costly abuses. Expand the state s monitoring system of hearing officer timelines to provide accountability As an immediate cost savings measure, we urge the State Education Department to build into its current monitoring system a mechanism for citing, sanctioning and retraining those hearing officers who unnecessarily prolong hearings.

9 Page 9 of 9 Maintain a separate rotational list of hearing officers who are attorneys trained to hear and decide motions Currently, the state s list of hearing officers includes a number of people who are not attorneys. At the same time, since the 2004 changes in federal law, we have seen an increase in motion practice involving requests for dismissal, summary judgment and directed verdicts. Being trained and versed in IDEA, however, does not ensure that a hearing officer, whether or not an attorney, has the knowledge and training necessary to address them. Therefore, in order to ensure that hearing officers appointed to hear cases that raise threshold legal issues have the needed competencies, we urge the development of a separate list of specially trained and experienced hearing officers who are also attorneys for special appointment. Amend state law to provide for individualized approval of nonpublic schools determined appropriate by a state administrative officer The vast majority of hearings in New York today involve claims for tuition reimbursement for students unilaterally placed by their parents in non approved private schools. In such cases, if a parent prevails, the decision awarding tuition reimbursement also creates, as a matter of law, an agreement between the State Education Department and the parent, (pursuant to the status quo provision of federal law also referred to as pendency or stay put ) that automatically requires a school district to pay the student s tuition there in subsequent years as long as the parent requests a hearing to challenge its newly proposed IEP. Even though districts are automatically required to pay the student s tuition in such cases, New York Law prevents them from recommending and monitoring the parental placement for which they must pay. Consequently, the only way a parent can maintain their child in the private school at public expense after winning a claim for tuition reimbursement, is to challenge the district s new IEP. Thus, the current system automatically perpetuates litigation year to year by preventing the district from offering the placement found appropriate by the State through the administrative review process. To prevent the necessity of repeated litigation, we urge amendment to state law that recognizes a private school found appropriate by the state review officer (or state hearing officer in a one tier system) as an approved nonpublic placement for that student. By amending the law, districts would then be authorized to monitor the parentally selected placement for which it must automatically pay, by offering the placement to the parent through the IEP process. In addition, by recognizing the student specific placement as approved, the district would be able to apply for state aid to support that placement. Most importantly, we would eliminate the need for continuing litigation by returning the parties to the process of IEP development, as contemplated by law. March 2011

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