Special Education

Annual Performance Report for 2008-09 - February 2010 - Indicator 9

Overview of the Annual Performance Report Development:

See Overview of the Development of the Annual Performance Report (APR) in the Introduction section, page 1.

Monitoring Priority: FAPE in the LRE

Indicator 9:

Percent of districts with disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification.
(20 U.S.C. 1416(a)(3)(C))

Measurement:

Percent = [(# of districts with disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification) divided by the (# of districts in the State)] times 100.

New York State’s (NYS) Measurement:

NYS will compare the percent of total enrollment of each race/ethnic group in special education with the percent of total enrollment of all other race/ethnic groups in special education combined.  For notifications of school districts since the 2005-06 school year, the State will use the following definition of “disproportionate representation” and in subsequent years may revise the definition by lowering the relative risk ratio, weighted relative risk ratio as well as the minimum numbers of students. (Clarified in February 2008 that the State’s definition of significant disproportion is the same as the definition of disproportion.)

NYS uses the relative risk and weighted relative risk ratios, with minimum “n” sizes to identify school districts whose data indicate disproportionate representation of racial and ethnic groups in special education. See the definition of “Disproportionate Representation and Methodology” described below.  All school districts whose data are disproportionate are required to use a State developed self-review monitoring protocol to identify the regulations with which they are not in compliance.  The results from the self-review monitoring protocol are reported to the State and are used as the basis to determine the number the districts in which disproportionate representation is the result of inappropriate identification.  Districts that are identified based on their data for two consecutive years receive an on-site focused review to determine if their policies, practices and procedures are in compliance with State requirements.  (Added this paragraph in February 2010 to clarify the two-step method used for identification of districts.)

Data Source:

NYS uses data collected and reported to the United States Education Department (USED) in the annual 618 report on Table 1 of Information Collection 1820-0043 (Report of Children with Disabilities Receiving Special Education Under Part B of the Individuals with Disabilities Education Act, As Amended) and the State’s analysis to determine if the disproportionate representation of racial and ethnic groups in special education and related services was the result of inappropriate identification.  These data are also provided to USED in the corresponding EDFacts files.

Definition of Disproportionate Representation and Methodology

NYS uses the relative risk and weighted relative risk ratios, with minimum “n” sizes to identify school districts whose data indicate disproportionate representation of racial and ethnic groups in special education.

Disproportionate Over-representation in Special Education:

  • At least 75 students with disabilities enrolled on the first Wednesday in October;
  • A minimum of 30 students (disabled and nondisabled) of particular race/ethnicity enrolled on the first Wednesday in October;
  • At least 75 students (disabled and nondisabled) of all other race/ethnicities enrolled on first Wednesday in October;
  • At least 10 students with disabilities of particular race/ethnicity enrolled in district on the first Wednesday in October; and
  • Either:
    • Both the relative risk ratio and weighted relative risk ratio for any race/ethnic group is 2.5 or higher; or
    • All students with disabilities in special education are of only one race/ethnic group regardless of the size of the relative risk ratio and weighted relative risk ratio.

Disproportionate Under-representation in Special Education: (category added February 2009)

The district must meet the following criteria for three consecutive years:

  • At least 75 students with disabilities enrolled on the first Wednesday in October;
  • Both the relative risk ratio and weighted relative risk ratio is less than or equal to 0.25;
  • ([District enrollment of race] times [Risk of Other Races]) divided by 2.5 is greater than or equal to 10;
  • Minimum district enrollment of other races is 75; and
  • A district’s risk of race is less than 50% of the Statewide risk of race.
Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2008
(2008-09 school year)
The percent of districts with disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification will be 0.

Actual Target Data for FFY 2008

Districts with Disproportionate Representation in FFY 2008 of Racial and Ethnic Groups that was the Result of Inappropriate Identification

NYS completed two notifications during the 2008-09 school year in order to catch up and use current year data to measure compliance on this indicator. In the next APR, the State will report on disproportionate notifications based on FFY 2009 data and policies practices and procedures reviewed prior to the next APR due date. The results of the two notifications conducted during FFY 2008 are provided below.

Year Total Number of Districts/td> Number of Districts with Disproportionate Representation
(Step One)
Number of Districts with Disproportionate Representation of Racial and Ethnic Groups that was the Result of Inappropriate Identification (Step Two) Percent of Districts
FFY 2008 (2007-08 data) 682 13 7 1.0%
FFY 2008 (2008-09 data) 683 17* 8 1.2%

*One additional school district is undergoing a focused review but compliance determination has not been finalized at the time this report was prepared.

Step One - Identification of Disproportionate Representation:

NYS used its October 1, 2007 and October 1, 2008 enrollment of all students and December 1, 2007 and October 1, 2008 child count of students with disabilities for this FFY 2008 APR submission.  Based on the criteria described in the Measurement section above, 30 school districts were identified as having 2007-08 and/or 2008-09 data that was disproportionate based on the criteria described above, and therefore required reviews.

Step Two - Determining if Disproportionate Representation is the Result of Inappropriate Identification

In FFY 2008 NYS determined that of the 30 school districts whose data indicated disproportionate representation and therefore required reviews, fifteen (15) school districts reported disproportionate over-representation in special education that is the result of inappropriate identification.  This number was determined as follows.

Every district that is identified by data for the first time must complete the State-developed Self-Review Monitoring Protocol: Disproportionate Identification of Racial and Ethnic Groups for Special Education and Related Services in accordance with the procedures specified in the review protocol (see http://www.p12.nysed.gov/specialed/spp/selfreviewethnic0910.htm.  Results from this review are reported to the State.  Twelve (12) school districts based on 2007-08 data and ten (10) school districts based on 2008-09 data conducted a self review.  The one remaining district identified based on 2007-08 data and seven (7) districts identified based on their 2008-09 data received focused reviews during FFY 2008-09 and/or FFY 2009-10 and had their policies, procedures and practices reviewed by the State’s special education monitoring staff.

Seven (7) school districts based on 2007-08 data and eight (8) school districts based on 2008-09 data reported noncompliance on one or more of the 19 regulatory citations contained in the monitoring protocol, The State’s compliance rate on this Indicator is based on these school districts as a percentage of all school districts in the State.

Discussion of Improvement Activities Completed and Explanation of Progress or Slippage that occurred for FFY 2008:

Explanation of Progress or Slippage

There was slippage in NYS’ compliance rate from 1.0 percent to 1.2 percent of school districts having some noncompliance on this indicator.  In part, this is due to more school districts receiving a focused or comprehensive review of their policies, practices and procedures based on consecutive years of identification compared to the previous year.

NYS is now on schedule to make notifications based on same year data and require a review of policies, practices and procedures to report results in the following year’s APR. Also, NYS is now current and will be conducting focused reviews or comprehensive reviews annually to determine compliance on this indicator in school districts who are identified for consecutive years.

Correction of Identified Noncompliance

Correction of FFY 2007 Findings of Noncompliance:

The level of compliance (actual target data) that the State reported for FFY 2007 for this indicator was 0.3%.

  1. Number of findings of noncompliance the State made during FFY 2007 (the period from July 1, 2007 through June 30, 2008) = 3 findings (1 district)
  2. Number of FFY 2007 findings the State verified as timely corrected (corrected within one year from the date of notification to the LEA of the finding) = 0 findings (0 districts)
  3. Number of FFY 2007 findings not verified as corrected within one year [(1) minus (2)] = 3 findings (1 district)

Correction of FFY 2007 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):

4. Number of FFY 2007 findings not timely corrected (same as the number from (3) above) = 3 findings (1 district)

5. Number of FFY 2007 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)  = 3 findings (1 district)

6. Number of FFY 2007 findings not yet verified as corrected [(4) minus (5)] = 0 findings (0 district)

Actions Taken if Noncompliance Found in FFY 2007 Is Not Corrected:

For FFY 2007 findings for which the State has not yet verified correction, explain what the State has done to identify the root cause(s) of continuing noncompliance, and what the State is doing about the continued lack of compliance, including, as appropriate, enforcement actions taken against an LEA that continues to show noncompliance. 

All FFY 2007 findings have been corrected.

Verification of Correction of FFY 2007 Noncompliance (either timely or subsequent):

For those findings for which the State has reported correction, report whether the State verified that the LEA:  (1) is correctly implementing the specific regulatory requirements: and (2) has corrected each individual case of noncompliance, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memorandum 09-02.

The State requires that the school district submit its report of correction of noncompliance with an assurance by the School Superintendent of its accuracy.  Each district must also publicly report on revisions to its policies, procedures and practices.  If a school district does not report correction of noncompliance within one year from identification, the State conducts a follow-up monitoring review and issues a Compliance Assurance Plan, specifying the actions the school district is required to take and giving timelines for these actions to be completed.  The Special Education Quality Assurance (SEQA) Regional Associate follows up with each district to assure that the Compliance Assurance Plan is fully implemented and to verify that noncompliance has been corrected. If a school district’s data continues to show disproportionality subsequent to the year that the correction of noncompliance is reported, the State conducts an onsite review of the district’s policies, procedures and practices.

Correction of Remaining FFY 2006 Findings of Noncompliance (if applicable):

For FFY 2006 findings for which the State has not yet verified correction, explain what the State has done to identify the root cause(s) of continuing noncompliance, and what the State is doing about the continued lack of compliance, including, as appropriate, enforcement actions taken against an LEA that continues to show noncompliance.

All identified noncompliance from FFY 2006 has been corrected.

  1. Number of findings of noncompliance the State made during FFY 2006 (the period from July 1, 2006 through June 30, 2007) = 29 findings (8 districts)
  2. Number of FFY 2006 findings the State has verified as timely corrected (corrected within one year from the date of notification to the LEA of the finding) = 7 findings (2 districts)
  3. Number of FFY 2006 findings not verified as corrected within one year [(1) minus (2)] = 22 findings (6 districts)

Correction of FFY 2006 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):

4. Number of FFY 2006 findings not timely corrected (same as the number from (3) above) =   22 findings (6 districts)

5. Number of FFY 2006 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”) = 22findings (6 districts)

6. Number of FFY 2006 findings not yet verified as corrected [(4) minus (5)] = 0 findings (0 districts)

Correction of Any Remaining Findings of Noncompliance from FFY 2005 or Earlier (if applicable):

NYS does not have any uncorrected noncompliance related to this indicator from FFY 2005 or earlier years.

Additional Information required by the OSEP APR Response Table for this Indicator (if applicable)

Statement from the OSEP Response Table State’s Response
The State further reported that noncompliance identified in FFY 2007 with the requirements in 34 CFR §§300.173, 300.111, 300.201, and 300.301 through 300.311 was not corrected, and that noncompliance identified in 2006 was partially corrected. The State also reported that the five districts identified in FFY 2007 and the one district identified in FFY 2006 that still have uncorrected noncompliance have time remaining within the one year notification timeline to report correction of their noncompliance. The State must demonstrate, in the FFY 2008 APR, due February 1, 2010, that the uncorrected noncompliance was corrected, by reporting that it has verified that each LEA with remaining noncompliance identified in FFY 2006 and/or 2007: (1) is correctly implementing the specific regulatory requirements; and (2) has corrected each individual case of noncompliance, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02. The State ensured the correction of all noncompliance for this Indicator identified in FFY 2006 and FFY 2007.
If the State is unable to demonstrate compliance in the FFY 2008 APR, the State must review its improvement activities and revise them, if necessary to ensure compliance. The Office of Vocational and Educational Services for Individuals with Disabilities (VESID) extended and expanded resources in its contract for the Technical Assistance Center for Disproportionality to work directly with school districts identified by the State for issues of disproportionality. VESID also established a State technical assistance center on Response to Intervention (RtI) and grants to 14 schools across the State to develop model RtI programs.  Beginning in 2010, to improve timely correction of noncompliance, direct follow up from the State’s special education monitoring staff will be initiated with a school district upon a finding that the district has not corrected its noncompliance within nine months.

Improvement Activities Completed in 2008-09

  • VESID extended and expanded resources in its contract for the Technical Assistance Center for Disproportionality (TAC-D) to work directly with school districts identified by the State for issues of disproportionality.
  • SEQA Regional Associates and technical assistance providers attended regional training sessions provided by TAC-D to build the capacity and expertise in each region to address identified issues of disproportionality.
  • VESID developed and implemented the use of electronic notices, sent to districts at 3-month intervals, as a reminder of the noncompliance that needs to be corrected and the next steps that will be taken by VESID should timely correction not occur.  The State’s monitoring staff also receive copies of these electronic notices and take appropriate follow-up action.
  • VESID also established a State technical assistance center on Response to Intervention (RtI) and grants to 14 schools across the State.  This Center has sponsored sessions specifically on RtI for students with limited English proficiency. 

Revisions, with Justification, to Proposed Targets / Improvement Activities / Timelines / Resources for FFY 2008 [If applicable]:

Beginning in 2010, to improve timely correction of noncompliance, direct follow up from NYS’ special education monitoring staff will be initiated with a school district upon a finding that the district has not corrected its noncompliance within nine months. 

The State expanded the number of bilingual special education technical assistance providers statewide through its Regional Special Education Technical Assistance Support Centers (RSE-TASC) to assist school districts to address issues of disproportionality by race/ethnicity as they relate to cultural and bilingual issues.  Beginning in 2010, these positions should be filled and available to provide regional and district-specific technical assistance.

Last Updated: June 30, 2010