IDEA Is Still The Law Of The Land

Unless you've been living under a rock, you know the US Department of Education (USDOE) rescinded 72 Dear Colleague and other letters of explanation to state education agencies regarding special education. 

Dear Colleague or guidance letters clarify a point in the law. In this case, we're talking about Individuals with Disabilities Education Act (IDEA). Generally, these letters are issued because state education agencies ask for clarification of the law. As advocates, we want this because we don't want local school districts misinterpreting or ignoring the law. Children get hurt when this happens. 

USDOE does, from time to time, "clean house," but as far as I can tell, this many at once is rare. They are removed because new guidance or new regulations replace them. In and of itself, removal is not a bad thing.

It's really difficult to not be skeptical of anything that happens under DeVos' tenure. Her general ignorance of the law, feigned or not, is reason enough to be on guard. 

When the department released the original list of rescinded letters, there was no explanation for their deletion. Later, they did release another list along with a brief comment about why. By that time, I had been through a good portion of the list and was able to cross-reference what I had already found. 

The majority of letters that I could find (not all were listed with a link) were, in fact, outdated. Many had been replaced with either new or updated guidance, or by changes in the law. In the case of letters about how money should be spent, those pertained to fiscal years that are past. 

A couple of things stood out to me. 

First, the guidance letters on transition and vocational training (not IDEA-specific). The federal program related to those letters no longer exists. Further guidance and programs do exist under Office of Disability Employment Policy, which falls under the US Department of Labor. It's clear, the need exists for those kinds of programs in high school, and to age 21. Certainly, NJ could use a much bigger emphasis on trades and vocational training for students with disabilities...and really, students without. 

The other issue is the letter about Least Restrictive Environment (LRE) in preschool. The 2012 letter was replaced in January 2017 with a lot of language about "inclusion" before they got to what is essentially a re-hash of the rescinded 2012 letter about what LRE actually means. To me, this letter is confusing and problematic because it promotes "inclusion" and then reminds everyone of LRE, like it's an afterthought.

I know from my own experiences with parents around the state that local districts either don't understand LRE, or use it as an excuse to provide only inclusion settings to all but the most severely disabled. What causes that ignorance, willful or otherwise, is anyone's guess. Mine would be a caustic mix of lack of funding available to districts and administrators doing as little as possible while hoping parents don't know better. Yes. I'm very, very cynical about LRE. 


What's important to remember.

Please keep in mind that any guidance letter that is rescinded and replaced, or not replaced, but regulation is still in effect, does not change the compliance requirements of IDEA. Those letters are merely further clarification of statute or regulation, usually brought on by a significant level of clarification requests from state agencies. IDEA remains in effect...at least for now. 


As always, if I have missed something, please let me know in the comments below or via PM. 

Yes, Social Impact Bonds. Again.

I've written about Social Impact Bonds, aka, Pay for Success (PFS) before. You can read those blog posts here, here, and here. I provided testimony on Pay for Success to the US Department of Education (USDOE) in Washington DC at the Every Student Succeeds Act (ESSA) hearings. That testimony you can find here. 

This past Friday, August 19th, USDOE announced a Preschool Pay For Success grant competition. Instead of, y'know, actually funding a preschool initiative, USDOE has set aside $2.8 million dollars to go to "7 to 14 grantees" who will have the great privilege of conducting feasibility studies, not on the effectiveness of high quality preschool (we already know that works), but on the effectiveness of PFS. States will have to go out and find partners and then use the USDOE money to fund studies...studies which one really hopes states would have done on their own anyway. 

"The ultimate aim of the pilot is to improve early learning outcomes through a future high-quality Pay for Success project by providing grants for feasibility studies. However, the pilot does not fund the implementation of preschool services. Preschool programs that are the focus of these feasibility studies must be inclusive of children with disabilities and the Pilot will also establish safeguards to protect the rights of children with disabilities to ensure that they receive the services they need." (emphasis mine)

Who knows? Maybe they were listening to me last January. I'm very interested to see what those "safeguards" are beyond what the law already prescribes, because that shouldn't be ignored under any circumstances. Right? 

To backtrack for a second, there are Preschool Development Grants (and Expansion Grants) available through USDOE. In 2014, several states, including New Jersey, received those grants. Here's a brochure from the program. You'll notice that "high quality" programs are necessary for receiving the 2-year grant. 

Now, take a look at the program description for Pay For Success. 

"This pilot does not limit feasibility studies to programs that meet the definition of “high-quality” preschool used by the Preschool Development Grants (PDG) program in its 2014 grant competition in order to allow the PFS demonstrations to demonstrate high-quality in different ways, including through the impacts that the pilots are able to achieve. In this way, such projects could further develop the evidence-base of programs that are demonstrated to be effective." (emphasis mine)

*Sigh* Let's understand that statement for a moment. USDOE recognizes that "high quality" preschool programs are necessary and work. They are trying to find a way to help out their friends in the banking sector by attempting to justify the use of Pay For Success programs while also desiring successful outcomes for students. They want to demonstrate the cheaper-for-the-taxpayer-to-achieve-great-results-ness of PFS, but the studies USDOE will be paying for do NOT need to include "high quality" preschool programs. 

Surely there's a really good reason for that, I am, though, currently at a complete loss of what that might be. Anyone from USDOE is free to shoot me an email at any time. Or, maybe Mike Hynes can ask John King when he finally is granted an audience.

I'll simply say, Pay For Success is a terrible idea. In this context, our children's education is at stake. There has been a specific narrative from those pushing these programs. It's unconscionable that Pay For Success is sitting in the middle of a federal education law. I'm not alone in that thinking. 

Yesterday, Kenneth Saltman published an article called "Wall Street's Latest Public Sector Ripoff: Five Myths About Pay For Success" and it's a doozy. Please take the time to read it. I'll give you a teaser on Saltman's reason for the existence of PFS programs:

"Banks love Pay for Success because they can profit massively from it and invest money with high returns at a time of a glut of capital and historically low interest rates. Politicians (especially rightist democrats) love Pay for Success because they can claim to be expanding public services without raising taxes or issuing bonds and will only have the public pay for “what works.” Elite universities and corporate philanthropies love Pay for Success because they support “innovation” and share an ethos that only the prime beneficiaries of the current economy, the rich, can save the poor."

In the context of preschool and how PFS has been used to theoretically lower the rate of special education classification of children entering kindergarten, I could not agree more (and I said as much, months ago) with this: 

"Who is authorized to develop the metrics, what is their expertise, what are their interests, and how do they assess the rules they set in place?; To whom are those legislating the accountability measurements accountable? The scientism of metrics obscures these kinds of questions. Accountability should be a part of educational projects but not through restricted metrics that conceal the broader politics informing the project. Rather, accountability should be in a form in which knowledge is comprehended in relation to how subjectivity is formed through broader social forces and in ways in which learning can form the basis for collective action to expand egalitarian and just social relations."

If your state is entertaining using Social Impact Bonds/Pay For Success to pay for preschool, please, I beg you, have those conversations with your legislators. Know exactly who is determining the criteria for success and how the money will be paid back and to whom. 

Julie Goes to Washington with Jamy, Marla, and Melissa

Last Monday, the US Department of Education held the first of two public testimony hearings on the Every Student Succeeds Act (ESSA). This hearing was held in Washington DC. The next will be in California. Short notice, with release just before the holidays, felt like timing was meant for parents and teachers to miss it. I was not off to a warm and fuzzy feeling about it. 

I didn't see the agenda for the day until after I checked in at USDOE. The speaking order and the approximate times for each of the three sessions were listed. The list of speakers was, predictably, the who's who of education reform -- just off the top of my head, several hundred million dollars or so in Gates funded associations. Disheartening to say the least. From what I can gather, only one other "just a parent" spoke that day and three actual teachers, two from New York (Jamy Brice-Hyde and Marla Kilfoyle) and one from New Jersey (Melissa Tomlinson). 

                                       

                                       

It really was difficult to decide what aspect of ESSA to discuss. From a special ed point a view, ESSA makes NCLB look lenient. The 1% cap on alternate assessments for students with disabilities is particularly cruel. It's also the fuel needed to continue to encourage opting out of these stupid tests. 

I decided, though, to talk about Social Impact Bonds. Sorry if you're getting bored with this topic, but I don't think it can be argued against enough. An experiment, which requires a negative outcome (NOT classifying students) to be considered a success, has no business sitting in the middle of a federal education law. 

Here is my testimony: 

11 January 2016

Testimony on the Every Student Succeeds Act (ESSA) to US Department of Education  

My name is Julie Borst and I’m resident of Bergen County, New Jersey. I am a mother to a 17-year-old student with a disability. I am a parent advocate and an organizer for Save Our Schools New Jersey, Opt Out NJ, and for BATs in Special Education. My comments today are my own. 

I have to admit, it was difficult deciding which section of ESSA to address today. While many are cheering the change from No Child Left Behind (NCLB), I’m feeling much more cautious. As a family, we have not had good experiences under NCLB. It was clearly in serious need of revision, and I don’t believe that ESSA really aleviates the myriad problems with NCLB, particularly for students with disabilities. 

Among the worst, the onerous standardized testing continues. More students with disabilities will be required to take irrelevant, developmentally inappropriate tests. Local districts will continue to waste precious dollars on infrastructure to support these tests, and for what? That’s a conversation that could go on for weeks. Let’s just say, that from where I sit, as a parent and advocate, the tests are a waste of time and money. Well trained, dedicated professional educators are what’s needed. Not more tests. 

However, the reason I’ve come here today is to talk about Social Impact Bonds, otherwise known as Pay For Success (PFS)¹, ESSA page 797, line 17. The current landscape in special education is a dire one. In states like New Jersey, it has become increasingly difficult for parents to get appropriate identification, classification, and services for their children. OSEP and OCR have become yet another roadblock to appropriate services.
I believe the root of that difficulty is money. IDEA is poorly funded, as it has been since its inception. Money now is spent on everything related to high stakes testing – prep, massive curricula changes, computers, infrastructure, and teacher professional development geared to use of that technology instead of honing the skills of their profession.

In New Jersey, there is a more formalized process, Response to Intervention (RtI), on the horizon. A program that will make it even less likely for a student with a disability to get timely identification, classification, and services. There appears to be little, actual focus on identifying learning disabled students as early as possible and doing something about it. 

Preschool, “high quality” preschool, has become the new mantra in that vein. Studies show that high quality preschool can reduce the percentage of the students who go on to kindergarten and are then classified for special education. Those percentages are anywhere from a reduction of 10% to 50% of students who would have otherwise needed special education services. The impact is clearly a positive one. 

It does makes sense to support high quality preschool. What doesn't make sense is for private investors or Wall St. to fund those preschool programs with the aim of making money off students NOT being classified. 

Pay For Success is use of private money invested into public programs, in this case public preschool. The program, first tested in Utah and now in Chicago, was funded by Goldman Sachs. The program in Utah was claimed to have a 99% “success” rate. 109 of the 110 students identified as “at risk” or possibly needing special education, out of a group of 600 preschoolers, did NOT require special education. Goldman Sachs received money back for every one of those 109 students and will continue to do so for every year those 109 students are NOT classified for special education, through 6^th grade. 

To be perfectly frank, this raises a lot of questions. What was the starting criteria for those students? What diagnostic tests did they use? Medical history? Demographics? How many students would have likely had to have special education if they didn't have the "high quality" preschool experience? How many would they expect to classify even with the experience? What is "high quality" preschool? What does "high quality" preschool cost? How much does Utah spend on preschool? What is the threshold that has to be met for Goldman Sachs to earn its money back? Who would have covered the costs is the program “failed”? 

In Utah’s case, only one test, PVVT, was used. It’s not normally used, especially by itself, to identify students for learning disabilities. English language learners typically do not do well on this test because it is vocabulary based. It doesn’t necessarily mean they have a disability. From the outset, the criteria presumed all 110 “at risk”-identified children were going into special education without the high quality preschool. That is not a valid presumption.
There is also the issue of cost. High quality preschool costs are general 3-4 times what Goldman Sachs invested per student. It’s still not clear how the “high quality” label was actually executed, as some of the students were apparently placed in daycare.  

Utah set the rubric, but they also would have had no preschool at all without the program. Why were they allowed to set the bar so low and so obviously skewed to have this as a win for Goldman Sachs? Perhaps more importantly, what is Utah doing to ensure those “success” students were, in fact, properly NOT identified for special education? 

I understand that on the surface Pay For Success sounds wonderful. Public money, that is already so lacking, will not have to be used to fund preschool programs. However, “success” based on a negative outcome of our most vulnerable students demonstrates the loss of our moral compass. 

Pay For Success has no business being in a federal education law. There are too many unanswered questions. Too many ways for this program to go very wrong for our most vulnerable students – especially in the current environment. There is no magic pill to cure learning disabilities, but there are many well-documented, teacher-driven practices to address identification, classification, and delivery of services. We should be concentrating on those, not on making Goldman Sachs richer at our children’s expense. 

¹ p. 797
17 40) PAY FOR SUCCESS INITIATIVE.—The

18 term ‘pay for success initiative’ means a perform-

19 ance-based grant, contract, or cooperative agreement

20 awarded by a public entity in which a commitment

21 is made to pay for improved outcomes that result in

22 social benefit and direct cost savings or cost avoid-

23 ance to the public sector. Such an initiative shall in-

24 clude—

p.7981 ‘‘(A) a feasibility study on the initiative de-

2 scribing how the proposed intervention is based

3 on evidence of effectiveness;

4 ‘‘(B) a rigorous, third-party evaluation

5 that uses experimental or quasi-experimental

6 design or other research methodologies that

7 allow for the strongest possible causal infer-

8 ences to determine whether the initiative has

9 met its proposed outcomes;

10 ‘‘(C) an annual, publicly available report

11 on the progress of the initiative; and

12 ‘‘(D) a requirement that payments are

13 made to the recipient of a grant, contract, or

14 cooperative agreement only when agreed upon

15 outcomes are achieved, except that the entity

16 may make payments to the third party con-

17 ducting the evaluation described in subpara-

18 graph (B).’’;

Marla's Testimony:

Testimony of Marla Kilfoyle

Thank you for allowing me to offer my recommendations and advice on Title 1 of ESSA

My name is Marla Kilfoyle.  I have been a public school teacher for 29 years.  I have taught in Rural, Urban, and Suburban school districts.  I have a Masters in Education and am National Board Certified.  My proudest role, however, is  that I am a mother of a child with disabilities enrolled in public school in New York. 

Here are my recommendations and advice:#1 We need to fund Title 1 with more money.  We have seen, over the last decade, more and more of our children living in poverty.  I applaud that the bill increases funding for key formula grant programs. The increases overall of funding by 2 percent each year in 2018-2020 is hopeful. Increases in Title I ($1.2 billion over the 4 years of the authorization), a more than a 20 percent increase. We applaud the increase in authorizations for Title III (English Language learners), Title VI, American Indian and Alaska Native programs and Impact Aid are excellent. Increases in the Mckinney Vento leave us hopeful that our homeless children will be serviced and supported but we will need more.

#2 I have concerns that “personalized learning “ will be a vehicle for students to be placed in front of a computer screen all day or have them moved out of their public school to a school that is not housed in their community.  This school could be an online learning center or a charter school; both which have been proven not to be beneficial over a strong public neighborhood school.    Why should children have to move out of their community school to be educated?  We need to support strong sustainable public schools in the communities that our children live.

#3 I  am vehemently opposed to testing children each year in grades 3-8 and once in high school.  We are the only nation that demands this of our children.  Grade span testing by random sampling will allow more time for learning.  We have done this successfully using NAEP.  Testing has depleted much needed funds for our children in need.  The only people that testing every year benefits are the testing companies.

#4 I also do not agree that our ENL/ELL populations should be subject to multiple statewide interim assessments during the academic year.  This, once again, results in more testing and less learning for our non-English speakers.  What we are seeing for our ELL students is less time with their ELL teachers in instruction to teach them to speak/acquire the language.  The drive to get them ready for a test at the end of the year that they are not yet ready to take, due to lack of language, is abusive and inappropriate.  Although pushing them into classes with their English speaking peers is excellent, there must also be a balance of making sure that we are giving them the instruction that they need to acquire the English language.  This has been taken away from them in many districts across the nation.

#5 I am opposed to computer adaptive assessments listed in the Act.  I feel that testing and technology companies put together inferior products, sell them to districts to make money and now districts are left with inferior assessments and no money.  I am also opposed to the idea of  ‘innovative assessment system', as outlined in Part B Title 1, that could be used as assessments in school districts.  As educators, we have seen technology companies and testing companies pillage the coffers of public education with products that are inferior and do not enhance teaching and learning.  This is not what America wants for its children.  We do not want our classrooms to become places in which children sit in front of a computer for several hours a day and the teacher becomes just a facilitator.  We see a need for technology and to make sure that our students are using it to enhance learning but it should not replace the human interactions that they need in the classrooms to become productive global citizens.  

 #6  Finally from Part A of Title 1 I feel that allowing alternative routes to certification will only guarantee that our neediest children will get the least trained, for example, Teach for America.  We should require every teacher, in every classroom to be fully licensed and accredited from a strong college education program. 

In closing I would like to take a few moments to also address the letter that the USDOE sent on Dec. 22^nd  to the Chief School Officers in states that had high test refusal rates.  The letter, which threatened to withhold Title 1 money for states with high test refusal rates, was absolutely deplorable.  As Mr. King knows from his tenure in NYS, standing between a parent and the decisions that they choose to make for their children is not a good idea.   To create conditions where a local school district must pressure parents into making decisions they do not want for their child is not good for the positive relationships that school districts need to create in order to work cooperatively with parents. 

Thank you again for your time and consideration. 

The End of Special Education Part II

In the add insult to injury category, on 16th November, USED sent a "Dear Colleague" letter to clarify that all IEPs must be aligned to state academic content standards (Common Core for most of us) for the grade level of the student. Let that sink in for just a sec. Realize that this letter is for "guidance" and is not actually a change to IDEA, which, for probably a very short while, is the law of the land. 

At the bottom of page one (the missive is seven pages long), in tiny type, is a clarification, or as I call it, weaseling out of any responsibility for any harm done, directly or indirectly, to a student with a disability because of this asinine, if not illegal, "guidance." Here is a tidbit: "The Department has determined that this document is a “significant guidance document” under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices...The purpose of this guidance is to provide State and local educational agencies (LEAs) with information to assist them in meeting their obligations under the IDEA and its implementing regulations in developing IEPs for children with disabilities. This guidance does not impose any requirements beyond those required under applicable law and regulations. It does not create or confer any rights for or on any person." Right. Thanks for letting parents know (oh wait, they didn't receive this letter) that in one paragraph you ignore IDEA and in the small print excuse yourself from culpability. <insert expletive of your choice>

The letter then goes on to discuss FAPE and how an IEP is the vehicle through which a student has access to FAPE. Ok, I'm good with that, but (seems there's always a "but") the paragraph before provided guidance that is the exact opposite of what an IEP actually is! Please, tell me. How are districts to provide FAPE while following USED's guidance (for which it takes no responsibility)? 

The next several pages are devoted to the interpretation of "general education curriculum" (read: state standards) and how USED thinks students with disabilities will magically be able to meet grade level standards, or at the very least close their own achievement gap year to year. I have no trouble with challenging students with disabilities, nor with attempting to close academic gaps. I do, however, have big issues with only allowing a small number, as yet undefined, to have modified standards and assessments that are appropriate for those individual students. That is the spirit of IDEA. To give access to an education, to the extent possible, to all students. Making it exponentially more difficult, just because (or because you have no idea what the hell you're talking about - which seems to be the case with USED), is cruel. Thank you, Nancy, for that word. That is exactly what it is. 

The example for implementation includes what must be the only idea the USED folks think special education is all about, that is using audio to help students who are reading significantly below grade level. If only it was as simple as subscribing to the reformy Audibles to cure significant reading deficits. Gee, wish I had thought of that. 

Are you seeing a trend here? Put changes up on the Federal Register. Ignore or blow off two years worth of comments and questions about the abject stupidity of the changes and the "supporting research." Then send "guidance" directly to district personnel which, as far as I can see, is directly in opposition to IDEA. 

Are you mad yet? 

Michael Yudin and Melody Musgrove from USED are hoping for feedback. Please give it to them: If you are interested in commenting on this document, please e-mail your comments to iepgoals@ed.gov or write to us at the following address: US Department of Education, 550 12th Street SW, PCP Room 5139, Washington, DC 20202-2600. Mostly they want to hear how well their guidance is working, but hey, probably better to just tell them the truth. 

USED's Latest Nonsense

The statement on testing was embargoed and held until 12pm on a Saturday. What's with that? The US is out picking out pumpkins and Halloween costumes so let's release it then and maybe no one will notice? 

Well, of course, we noticed. We also noticed that major news outlets like the New York Times wrote an entire article without bothering to talk to a single teacher. What's with that? Afraid of what a teacher might tell you about this release? 

I'm not a teacher, but here's what I got out of that release. 

First, and this a biggie. Reducing test time to 2% of the number of hours students are in school per school year. For those of you who grew up without Common Core math, that's roughly 23 hours. TWENTY THREE HOURS. 

Second, "the assessments must be worth taking." Excuse me while I laugh so hard I snort. That's great. Presumably every teacher on the planet would agree. So why has USED forced the adoption of standardized tests? And more to the point, ones that do not do what they claim they do. Why are states, like New Jersey, having committees look at "assessment" with the aim of doing away with tests created by teachers, for the students they are currently teaching, and will be able to immediately use the results to inform their teaching? (hint: no one makes any money on that) How many of your kids no longer have midterms or finals? Mine doesn't. 

Third, and this one cannot be typed with a straight face,  "No standardized test should ever be given solely for educator evaluation." USED offers this up now? When all states that took the NCLB waiver were coerced into creating a teacher evaluation in which standardized test scores are required??? Really?? I'm pretty sure teachers would have a lot to say about that.

Fourth, the babble about students with disabilities and English language learners is the usual trite language about leveling the playing field. If anyone was interested in actually doing that, you wouldn't require these populations to take standardized tests, you would make sure IDEA was fully funded, and you would come down like a ton of bricks on districts that didn't provide appropriate services for their students. 

My take away was not one of a victory in any sense of the word. Yes, I fight like mad to get rid of the crazy testing and, more importantly, the ridiculous high stakes that go with them. Yes, I'm glad that someone in Washington is at least willing to give a nod to the infatuation with testing, but this statement did not make clear which "assessments" they really mean, nor did they back off from the high stakes that go with them.