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Accountability, Flexibility and Parental Empowerment | Set High Expectations for Special Education and Hold LEAs Accountable for Results | Increase Parental Empowerment and School Choice | Improve the IEP Process, Prevent Disputes and Improve Dispute Resolution | Conclusion
Accountability, Flexibility and Parental Empowerment
Recommendation—Set High Expectations for Special Education. The No Child Left Behind Act requires states to establish high expectations for students with disabilities on state reading and mathematics assessments. The Individuals with Disabilities Education Act should require each state to establish additional ambitious and conforming goals for students with disabilities by using measures such as graduation rates, post-graduation outcomes and parent satisfaction surveys. States should also be required to define “adequate yearly progress” under IDEA for students with disabilities in local education agencies (LEAs) toward these goals. In addition, while measurements of “least restrictive environment” are not necessarily outcomes per se, they are important and should be measured and reported at state, local and school levels.
Recommendation—Hold LEAs Accountable for Results. State and local accountability systems should include all children, and each system must be consistent with the No Child Left Behind Act. IDEA should require states to report annually on the success of each school and LEA in achieving IDEA goals for students with disabilities. IDEA should provide for technical assistance for LEAs that fail to make adequate yearly progress under IDEA, and it should require states to take more intensive corrective actions—including state direction of IDEA funds for LEAs that do not demonstrate adequate yearly progress under IDEA for three consecutive years. To the maximum extent feasible, states should disaggregate data; if not possible, states must work quickly to establish a system that can do so. These requirements would, to the maximum extent possible, replace existing process-based accountability systems, while fully retaining the civil rights protections of IDEA.
Recommendation—Increase Parental Empowerment and School Choice. Parents should be provided with meaningful information about their children’s progress, based on objective assessment results, and with educational options. The majority of special education students will continue to be in the regular public school system. In that context, IDEA should allow state use of federal special education funds to enable students with disabilities to attend schools or to access services of their family’s choosing, provided states measure and report outcomes for all students benefiting from IDEA funds. IDEA should increase opportunities for parents to make informed choices about their children’s education. Consistent with the No Child Left Behind Act, IDEA funds should be available for parents to choose services or schools, particularly for parents whose children are in schools that have not made adequate yearly progress under IDEA for three consecutive years.
Recommendation—Prevent Disputes and Improve Dispute Resolution. IDEA should empower parents as key players and decision-makers in their children’s education. IDEA should require states to develop processes that avoid conflict and promote individualized education program (IEP) agreements, such as IEP facilitators. Require states to make mediation available anytime it is requested and not only when a request for a hearing has been made. Permit parents and schools to enter binding arbitration and ensure that mediators, arbitrators and hearing officers are trained in conflict resolution and negotiation.
Promoting more effective and efficient methods of accountability for results emerged as a key theme during several Commission meetings and hearings. This section focuses on ways that state and local accountability measures must change to better assess the services provided to children with disabilities and their families. It focuses on the importance of expanding standards-based reforms while increasing parental options in planning their child’s education and future. Recommendations for improving the accountability and effectiveness of the principal federal administrative agency managing the IDEA statute are contained in section one.
We believe the same accountability, flexibility and parental choice concepts embodied in the No Child Left Behind Act must form the basic blueprint for improving IDEA.
Set High Expectations for Special Education and Hold LEAs Accountable for Results
In testimony and public comment the Commission heard repeatedly about the need to focus special education accountability on the results achieved by students with disabilities. Witnesses from a variety of perspectives told us the current approach to accountability in special education is too focused on procedural compliance. Though the 1997 IDEA amendments generated more measurement of results, IDEA remains a process-focused law under which states and LEAs can fail to achieve results without consequences.
Consequently, IDEA should be revamped to require states to: (1) set ambitious goals for special education in alignment with the No Child Left Behind Act; (2) define “adequate yearly progress” toward goals for special education; (3) measure and report on achievement of these goals; and (4) take action when local education agencies chronically fail to make progress.
Setting ambitious goals for special education is the first step toward accountability for results. For too long, our nation has had low expectations for students with disabilities. Instead, we must insist that all students in special education make strides towards challenging and appropriate learning and developmental goals. The No Child Left Behind Act moves in that direction, requiring schools to demonstrate adequate yearly progress for all students with disabilities in reading and mathematics.
“Special education is in need of fundamental reform. We need to align the IDEA with those progressive accountability efforts included in President George W. Bush’s No Child Left Behind Act.”
—Commission Chairman Terry E. Branstad
The Commission’s recommendations build on that strong foundation. IDEA should affirm the No Child Left Behind Act’s insistence on the inclusion of students with disabilities in statewide assessment and accountability systems. For the small percentage of students for whom alternative assessments are appropriate, IDEA should set clear standards for state alternative assessment systems, including a requirement that they be aligned with states’ broader standards and assessments. The Commission recognizes that measures of progress for students with disabilities will require additional assessments and individualized accommodations. But, every student’s progress must be assessed every year and “counted” in state accountability systems. As Martha L. Thurlow, Ph.D., stated in her testimony before the Commission on March 13, 2002, in Des Moines, IA:
“[I]t is important for us to stay the course with the IDEA 97 requirements for students to participate in assessments, with accommodations as needed, and for alternate assessments to be developed for those students unable to participate in regular assessments. It is important to ratchet-up the requirements, so that all students with disabilities [are] included in educational accountability systems, including those in alternate assessments—a requirement that is consistent with the No Child Left Behind Act.”
IDEA should also require states to set ambitious goals for special education on indicators other than standardized assessments, such as graduation rates, post-graduation outcomes and parent satisfaction. Consistent with the No Child Left Behind Act, IDEA should mandate that states define “adequate yearly progress” towards these goals. Only with such definitions will states and the federal government be in a position to judge the success of special education programs.
Setting high expectations is only the start. The motivating power of public scrutiny supports numerous federal laws, including the No Child Left Behind Act. IDEA should also demand that each state report every year on the progress made by schools and LEAs toward achieving the state’s ambitious goals for students receiving special education. These reports should form a part of the report cards required by the Act. Reports should disaggregate data to the maximum extent feasible. In particular, they should make it possible to judge the progress of students with significant disabilities at the LEA level. Such students are too often left out of measurement and accountability systems.
In addition to providing progress reports to parents and citizens, states should also use information to hold local education agencies accountable for results. As with No Child Left Behind, states should be required to categorize LEAs based on the level of progress they are making toward goals for special education. IDEA should mandate that states use the following strategies for LEAs that consistently fail to make adequate yearly progress toward goals for students with disabilities receiving special education services:
1. For LEAs that fail to make adequate yearly progress, states should initially provide technical assistance targeted to those specific areas identified in need of specialized intervention.
2. When LEAs fail to make adequate yearly progress over a certain number of years, defined by Congress, IDEA should require states to take more dramatic corrective actions, including possible direction of LEAs’ special education spending and special education programs managed by a state-appointed trustee.
3. In cases of consistent failure beyond the timeframe of state actions, IDEA should allow for direct federal intervention, including but not limited to the direction of federal special education spending at the discretion of the U.S. Secretary of Education.
Such a system of accountability would define in clear terms what counts as success in special education. It would provide everyone, from families and educators to policymakers and the public, with useful information about how well we are educating students with disabilities. And, it would ensure that when LEAs fall short in the results they achieve in special education, swift corrective actions would be taken.
The Commission is appropriately concerned that too many children with disabilities fail to move from school to adult living more successfully. Although this concern is addressed in this report’s Transition section, students with disabilities should strive first for the standard high school diploma. The current “either diploma or graduation certification” division is inadequate. A graduated diploma system will more accurately represent levels of skill and ability. Students with disabilities, who are, because of their disability, unable to perform at standard for a high school diploma, yet demonstrate skills for employment and post-secondary educational opportunities cannot now enter many employment settings because they do not hold standard high school diplomas. States should consider implementing a graduated high school diploma system that will open more doors to employment and post-secondary education than current options permit.
We are concerned about children with disabilities in the child welfare system, and youth with disabilities in the juvenile justice system. We encourage state agencies with authority over the direction and expenditure of federal and state funds under IDEA and the No Child Left Behind Act to develop interagency agreements with juvenile corrections agencies, foster care and other relevant authorities to ensure continued alternative educational services (including the full continuum of services as provided under IDEA) for students with disabilities.
Increase Parental Empowerment and School Choice
Each Commission meeting and hearing provided a public comment period for individuals to offer their views about special education services. Many of the individuals who provided comments were parents of children with disabilities. These parents voiced both support and criticism of the current special education system. What resonated with the greatest force was the oft repeated desire of parents to hold “the system” more accountable for educating their children. The system was frequently identified as a combination of the local, state or federal educational agencies with which parents interact, often with great aggravation, to obtain special education services for their children. The Commission views parental empowerment as essential to excellence in special education. Increasing parental empowerment coupled with public accountability for results will create better results for children and schools.
According to teachers and administrators, the current system is focused on a procedural compliance-oriented program and should be changed to a system that provides the flexibility to develop innovative strategies to achieve results for each child. Schools and parents should be granted the flexibility (e.g., waivers for performance) currently barred by federal and state law and local practice to design educational programs that meet the needs of children with disabilities within a results-based framework.
Commissioners and expert witnesses have repeatedly stressed that parents are the key to success for students with disabilities. There has been much discussion and concern about what happens when parents and schools disagree about the dispute resolution process. Though there are good models for community and parent outreach, many low-income families and underserved populations are still not involved in their children’s education.
Consistent with the No Child Left Behind Act, parents need access to meaningful information about their children, measures of adequate yearly progress and how assessment serves as a diagnostic tool that measures not only a child’s strengths and weaknesses, but also their yearly progress. This information can help teachers develop evidence-based practices that they can then use in classroom instruction to benefit each student. The Department of Education should increase support for programs that promote parents’ understanding of their rights and educational services under IDEA so they can make informed decisions about their children, particularly programs that serve families who have not traditionally been informed or involved in their children’s education.
States and local schools must increase parents’ and students’ flexibility to choose educational services. Parental and student choice is an important accountability mechanism, and IDEA should include options for parents to choose their child’s educational setting. States must be provided the flexibility by the federal government to offer school choice options.
Increasing school choice options is an effective means of achieving accountability in the broad system if parents are able to more easily choose where their child attends school. Parental choice can be a valuable tool in serving the educational needs of children with disabilities. The many parents that provided comments before the Commission persuade us that incorporating this option into the next reauthorization of IDEA must be seriously considered.
One way to increase choices for students with disabilities is simply to give states more flexibility to use IDEA funds for this purpose. For states that choose to provide more options for students with disabilities, IDEA should make it possible for IDEA funds to follow students to the schools their families choose. The No Child Left Behind Act takes an additional step, requiring states to offer choices for students in schools that do not make adequate yearly progress. IDEA should include parallel requirements, mandating that states allow IDEA funds to follow students with disabilities when they choose to opt out of chronically failing schools or districts. As funding follows students, so should accountability. States should measure and report outcomes for all students benefiting from IDEA funds, regardless of what schools they choose to attend.
The Commission heard testimony from Harvard University Economics Professor Caroline Hoxby suggesting that in order to work properly for students with disabilities, choice programs must provide schools with appropriate resources.33 Otherwise, the schools and districts will not be sufficiently eager to educate students with disabilities—especially those with the most significant needs. Consequently, while federal policy should not require them to do so, the Commission recommends that in designing choice programs, states allow all available revenues to which the student would have otherwise been entitled—not just IDEA funds—to follow students to the schools their families choose. The increasing numbers of parents who have chosen charter schools leads us to recommend further that attention be paid to providing the statutory and regulatory support necessary to maintain and promote this option for children with disabilities.34
Since public charter schools are typically small and often independent from local school districts, they face unique challenges in providing special education. To create an environment in which charter schools can meet the needs of students with disabilities, states need to give charter schools equitable access to special education funding as well as programs that help small local education agencies provide services, and the same technical assistance opportunities that are available to districts.
Though each state may approach these issues differently, the Commission recommends that federal policy provide strong incentives or requirements for states to take these actions. Federal policy should also provide the flexibility states need in this area, including the flexibility to define charter schools’ LEA status in ways that maximize the capacity of such schools to meet the needs of children with disabilities. In addition, federal policy should make clear that families working with IEP teams can choose charter schools and other options that target students with disabilities, even if these offer relatively restrictive environments, as long as those programs can appropriately serve these students.
The Commission recommends greater flexibility in using federal funds, allowing states to create parental choice programs while preserving the student’s basic civil rights. However, we recommend that any such program also require schools and programs to be held to the same accountability requirements for public schools, ensuring that students achieve excellent results.
States and localities must treat IDEA’s least restrictive environment (LRE) issues as basic civil rights and essential to special education, by making LRE a matter of results-based services rather than a matter of procedural safeguards. Least restrictive environment is a statutory requirement that applies to all students with disabilities. The central issue is to establish the optimal LRE to effectively educate students in the most integrated setting possible. The Commission recognizes that it may be appropriate for some children to receive some time or supplemental services in smaller group settings. LRE is designed to individually determine the most appropriate educational setting for each student. Students with disabilities are best served with their nondisabled peers whenever possible and consistent with the individual needs of the child and the wishes of the parent. The placement provisions should make it clear that if the current needs of the student preclude services in the regular educational setting, a specific goal of all possible educational and school social experiences with nondisabled peers be included. The provision must include the requirement that, as appropriate, school systems provide supplementary aids and services to enable students with disabilities to participate in nonacademic and extracurricular activities with their nondisabled peers.35
This Commission finds it important to reflect on the basic rights of children with disabilities to be educated in the least restrictive environment appropriate to the child and his or her educational needs. We are deeply concerned that many children with severe disabilities, including those children with autism or emotional disturbance, are relegated to segregated educational settings simply because of their disability. Despite decades of successful inclusion of children with disabilities in regular schools that would not be possible without the basic protections of IDEA and its predecessors, there are children with disabilities who are still segregated simply because their disability creates difficulties in providing integrated educational experiences.
Members of this Commission viewed situations where children with severe disabilities were separated—for no apparent justifiable educational purpose—from the regular school building and consigned to secondary settings because of their disability. We reaffirm our commitment to the fundamental belief that children with all types of disabilities must be included to the maximum extent appropriate in their school community. We also endorse the basic principle of providing special education services to children who are removed from their current educational placement for disciplinary reasons.36
Thus, leaving no child behind also means leaving no children with disabilities behind. These children include students at high risk of academic difficulties because of emotional disturbance and those children with disabilities in foster care or juvenile justice facilities, from the early elementary grades through high school. We must raise the bar for these children with disabilities to reach their potential. Making least restrictive environment a focus on results-based services will move services for children with disabilities to the most integrated setting possible.
Each student’s IEP should seek to determine the setting or settings that are most appropriate and effective in achieving positive outcomes and results, consistent with the least restrictive environment. The Commission believes that in many states the rate of progress in meeting the LRE requirement is unsatisfactory. States should be monitored by the U.S. Department of Education on this requirement. In addition, the Department should develop more adequate measures of monitoring compliance with this requirement.
Improve the IEP Process, Prevent Disputes and Improve Dispute Resolution
Parent contact with the school special education system begins with a referral and then eligibility determination. Once determined eligible, children and their parents begin the IEP process. This process can be overwhelming for parents. Therefore, the Commission recommends IDEA support training for skilled facilitators to run IEP meetings in a way that gets parents and school staffs to win-win solutions for children.
IDEA should encourage states—perhaps through financial incentives—to develop early processes for conflict avoidance and reaching agreement on IEPs. Early processes such as expert IEP facilitation, conciliation, telephone intermediation and training to increase collaboration and problem solving skills of school staff and parents can help avoid expensive disputes and promote efforts to help students. This could diminish the number of disagreements and the associated expenditures of time and money spent on hearings resulting from perceived violations of IDEA.
Where disputes do arise, IDEA must permit parents and schools to enter binding arbitration and ensure that mediators, arbitrators and hearing officers are trained in conflict resolution and negotiation. We recommend IDEA require states to make mediation available anytime it is requested, and not only after a hearing is requested. Numerous parents, teachers and school administrators complained during the Commission’s meetings about the excessive focus on due process hearings and litigation over special education disputes. Disputes of all sorts divert parent and school time and money, and waste valuable resources and energy that could otherwise be used to educate children with disabilities. Furthermore, the Commission is concerned there is no reliable national data set available indicating the number of due process hearing requests and whether that number is rising or falling.
More than one school administrator voiced concerns about the growing threats of litigation when parents and schools cannot agree on the appropriate level of special education and related services to provide. These threats create an adversarial atmosphere that severely limits the ability of parents and schools to cooperate. The threat of litigation alone has costs for teachers, students and taxpayers: the cost of attorneys in actual hearings and court actions; the cost of attorneys and staff time in preparation for cases that do not reach the dispute resolution system; and the cost of paperwork driven by districts believing that extensive records help prevent lawsuits. These costs and the dissatisfaction with the system merit serious reform.
One enlightening witness before the Commission was Jim Rosenfeld, executive director of the EDLAW Center, who has spent his career advocating on behalf of parents in special education suits. Mr. Rosenfeld testified that,
“There should and must be a wide variety of dispute resolution procedures available for both parents and school districts to use…One additional dispute resolution procedure might be voluntary but binding arbitration available only upon the election of both of the parties. I suspect many parents and schools would be willing to waive their rights of appeal from such decisions if they were fair, impartial and fast.”37
The Commission agrees and recommends IDEA permit the creation of voluntary binding arbitration systems. There is simply no reason that parents and schools should not have the option of waiving—with full knowledge of the consequences—their right to further procedural protections and appeals in the IDEA due process system in exchange for a speedier and more assured resolution.
Binding arbitration, mediation and due process hearings should be consistent with the recommendation of witness and parent advocacy attorney William Desault: use independent people who are trained in mediation, arbitration and administrative conflict resolution.38 Too many mediators and administrative hearing officers come from an education background. Instead, the Commission recommends states and schools take steps to hire these individuals from outside the education or disability-advocacy communities. More specifically, they should be trained in mediation, and dispute and conflict resolution. Drawing from the disability or school communities helps poison the goodwill among the parties and clearly leads to fewer resolutions in a timely and fair manner.
The Commission concludes that innovative means of increasing education system accountability often require what some may argue to be radical changes. The recommendations outlined here may well be interpreted as such, and perhaps justly so. Ultimately, efforts to achieve excellence in special education services must focus on one objective—providing a free appropriate public education so that children with disabilities may become self-directed adults able to contribute to their communities to the maximum extent possible.