Special Education

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 12:  Percent of children referred by Part C prior to age 3, who are found eligible for Part B, and who have an individualized education program (IEP) developed and implemented by their third birthdays.
(20 U.S.C. 1416(a)(3)(B))

Measurement*:

  1. # of children who have been served in Part C and referred to Part B for eligibility determination. Students whose 3rd birthday is after August 31after the full school year for whom data are reported are excluded from this number.
  2. # of those referred determined to be NOT eligible and whose eligibility was determined prior to their third birthdays.
  3. # of those found eligible who have an IEP developed and implemented by their third birthday.
  4. # of children for whom parent refusal to provide consent caused delays in evaluation or initial services.
  5. # of children who were referred to Part C less than 90 days before their third birthdays.*
  6. # of children whose parents chose to continue their child in Early Intervention Program.**
  7. # of children who moved, # of children who died,  # of children who started receiving services on the recommended program’s beginning date even though it was after the child’s third birthday.**

*Note: In March 2009, the United States Education Department (USED) added category (e) to the Measurement.
**Note: In 2008-09, New York State (NYS) added f and g to the measurement to be consistent with NYS requirements.

Account for children included in a, but not included in b, c, d, e, f or g.  Indicate the range of days beyond the third birthday when eligibility was determined and the IEP developed and the reasons for the delays.

Percent = [(c) divided by (a – b – d – e - f - g)] times 100.

Data Source:

NYS now uses data taken from the State data system.  Beginning with the 2007-08 year, NYS collects data for this indicator via the Student Information Repository System (SIRS) and verifies these data by displaying them in a VR12 report, which was developed in the PD Data System.  SIRS is NYS’ individual student data reporting system.

Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2009
(2009-10 school year)
100% of children referred by Part C prior to age 3, who are found eligible for Part B, will have an IEP developed and implemented by their third birthday or in compliance with timelines established in State law.

Actual Target Data for FFY 2009:

In FFY 2009, 64.5 percent of children referred from Part C had their eligibility for Part B determined or IEP implemented by their 3rd birthdays or in compliance with timelines established in State law.

NYS’ Method Used to Collect Data

NYS collects individual student data through SIRS. School districts report specific dates when special education events occur such as the date of referral, date of written parent consent for an initial evaluation, date of the Committee on Preschool Special Education (CPSE) meeting to determine eligibility and date the IEP is implemented.  Reasons for delays are collected for children whose eligibility determination is not made or whose IEPs are not implemented by their third birthday. Some reasons are considered to be in compliance with State requirements and other reasons are not in compliance.  Each school district’s compliance rate is calculated.

The State verifies that each school district whose compliance rate is less than 100 percent completes any remaining eligibility determinations and implements any remaining IEPs.  The State also requires documentation that the school district complies with the timelines associated with this indicator.

Children referred from Part C who had their eligibility for Part B
determined or IEP implemented by their 3rd birthday
  FFY 2008 FFY 2009
a.  Number of children who have been served in Part C and referred to Part B for Part B eligibility determination (Students whose 3rd birthday is after August 31 after the full school year for whom data are reported are excluded from this number.) 2,849 2,641
b.  Number of those referred determined to be NOT eligible and whose eligibility was determined prior to third birthday 135 146
c.  Number of those found eligible who have an IEP developed and implemented by their third birthdays 306 385
d.  Number for whom parent refusals to provide consent caused delays in evaluation or initial services 1,133 522
e.  Number of children who were referred to Part C less than 90 days before their third birthdays
[This information is not required until the 2011 submission but may be reported in 2010 if the State’s data are available.]
19 22
f.   Number of children whose parents chose to continue their child in Early Intervention Program 1,032 1,246
g.  Number of children who either moved (10), # of children who died (0), # of children who started receiving services on the recommended program’s beginning date, even though it was after the child’s third birthday (98) 121 108
Number in a but not in b, c, d, e, f or g. 103 212
Percent of children referred by Part C prior to age 3 who are found eligible for Part B, and who have an IEP developed and implemented by their third birthdays
Percent = [(c) / (a-b-d-e-f-g)] * 100
75% 64.5%

Account for Children Included in a, but not in b, c, d, e, f or g in the above table:

In FFY 2009, there were 212 students for whom there were delays in implementing the IEP or determining eligibility for Part B services for reasons that are not in compliance with State requirements. The chart below provides reasons for the delays and the extent of delays.

Reasons for Delays Number of Children by Number of Days of Delay in Developing an IEP by Third Birthday or Determining Eligibility for Preschool Special Education in FFY 2009 Unknown Total Percent
Of
Total
1-10 11-20 21-30 Over 30
An approved evaluator was not available to provide an evaluation. 2 2 5 21   30 14.2%
Additional evaluations were requested outside of the required timeline. 0 0 0 2   2 0.9%
There were evaluator delays in completing the evaluation. 2 4 5 54   65 30.7%
Delays in scheduling the CPSE meetings 4 3 4 98   109 51.4%
The recommended Part B services were not available when child turned three years of age. 0 0 0 1   1 0.5%
Inaccurate or incomplete data        5 5 2.4%
Total 8 9 14 176 5 212 100%
Percent of Total 3.8% 4.2% 6.6% 83.0% 2.4%

Discussion of Improvement Activities Completed and Explanation of Progress or Slippage that occurred for FFY 2009:

Explanation of Progress or Slippage:

In 2009-10, NYS’ compliance rate decreased from 75 percent in FFY 2008-09 to 64.5 percent.  NYS’ data are collected from a different sample of school districts that are all representative of the State each year.  The only school district included in each year’s sample is New York City (NYC).  NYC’s rate declined to 53.2 percent compared to 57.4 percent in 2008-09, contributing to the State’s lower performance.

A review of the length of delays indicates: 3.8 percent of all delays in completing initial evaluations were for 1-10 days; 4.2 percent for 11-20 days; 6.6 percent for 21-30 days; and 83 percent for more than 30 days. The number of days of delay has not been determined for 5 children by the time this report was prepared.

A review of the reasons for the delays indicates: 14.2 percent of delays were because an approved evaluator was not available to provide an evaluation; 0.9 percent because additional evaluations were requested outside of the required timeline; 30.7 percent of delays were evaluator delays in completing the evaluation; 51.4 percent were related to timeliness of scheduling CPSE or Committee on Special Education (CSE) meetings to determine eligibility; and 0.5 percent were because the recommended Part B services were not available when child turned three years of age. Due to inaccurate or incomplete data, reasons for delays could not be determined for five, or 2.4 percent, of children by the time this report was prepared.

  • There has been significant improvement in the percentages of delays caused by evaluator delays in completing the evaluations (from 22 percent in FFY 2008 to 14.2 percent in FFY 2009), an issue which the State has been directly addressing statewide through its oversight of approved evaluators.  One major root cause of this reason for delays relates to personnel shortages, particularly in NYC and the other Big Four cities.  The State and NYC are implementing court settlement actions under the Jose P. court case relating to availability of professionals in personnel shortage areas (e.g., speech and language and bilingual evaluators).  An additional root cause factor for these delays is the State’s inability at this time to approve any new evaluators to address availability of approved evaluators, in part due to corporate professional practice limitations for private approved evaluation programs (which the State is attempting to address through legislation).
  • There was a significant increase in delays in scheduling the CPSE meetings (from 15 percent in FFY 2008 to 51.4 percent in FFY 2009), primarily in NYC (see below for actions the State is taking to address this issue).   
  • There was a significant decrease in the percent of delays resulting in lack of approved evaluators available to provide a timely evaluation (48 percent in FFY 2008 to 14 percent). 

Correction of FFY 2008 Findings of Noncompliance (if State reported less than 100 percent compliance)

In FFY 2008, NYS issued notifications of noncompliance for this indicator to 17 school districts.  School districts that submitted data representing the 2008-09 school year were issued noncompliance notifications in the 2009-10 school year, so the State will report on their correction of noncompliance in the next APR, due February 1, 2012. The chart below provides information on the timely correction of noncompliance among these 17 school districts.  Each school district represents one finding.

  1. Number of findings of noncompliance the State made during FFY 2008 (the period from July 1, 2008 through June 30, 2009)  
17
  1. Number of FFY 2008 findings the State verified as timely corrected (corrected within one year from the date of notification to the local educational agency (LEA) of the finding)  
10
  1. Number of FFY 2008 findings not verified as corrected within one year [(1) minus (2)]
7
Correction of FFY 2008 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):
  1. Number of FFY 2008 findings not timely corrected (same as the number from (3) above) 
7
  1. Number of FFY 2008 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)
6
  1. Number of FFY 2008 findings not yet verified as corrected [(4) minus (5)]
 1

Actions Taken if Noncompliance Found Is Not Corrected:
For FFY 2008 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.

The one school district with continuing noncompliance is NYC.  While individual students have since had their IEPs implemented, NYC reports compliance annually for this indicator based on a representative sample of students.  Where the annual report does not demonstrate compliance, the State continues to cite this district for each year it cannot demonstrate that 100 percent of its students had their IEPs implemented by their third birthdays.  This noncompliance finding is the same as is reported for FFY 2008. State monitoring staff conduct monthly meetings to follow up on the district’s actions to achieve compliance.

The State and NYC are implementing a Court Order Settlement Agreement for the timely evaluation and placement of preschool children.  (D.D. et. al.  v New York City Board of Education).

A major root cause of noncompliance for this indicator relates to personnel shortage areas, particularly in NYC.  The State and NYC are implementing court settlement actions under the Jose P. court case relating to timely evaluations and placements of students and personnel shortages.

The State provided electronic notification at three-month intervals to school districts as a reminder of the noncompliance that needs to be corrected and the next steps that would be taken should timely correction not occur.  If a school district did not correct its noncompliance within 30 days of its nine-month notice, then the State required it to develop a corrective action plan that included:

  • The reasons for the school district’s failure to provide each eligible preschool child transitioning from early intervention (EI) services with special education services by the child’s third birthday, which may include whether the:
  1. school district received the notification from the EI program of children transitioning from early intervention;
  2. Chairperson of the CPSE or his/her designee participated in the transition planning meeting conducted by the EI program in compliance with 8 NYCRR §200.16(f);
  3. eligible child received his/her evaluation within the required timelines, which should include consideration of which of the approved evaluators did not complete the preschool child's individual evaluation within the required time period and the reasons for such delays; and
  4. CPSE meeting to determine the child’s eligibility for preschool special education was conducted in a timely manner before the child’s third birthday.

The State notified the district of technical assistance resources available to assist with the school district’s responsibility to correct the noncompliance for this indicator, including:

Verification of Correction of Noncompliance Found in FFY 2008 (either timely or subsequent):
For those findings for which the State has reported correction, describe the process the State used to verify that the LEA:  1) is correctly implementing the specific regulatory requirements: and (2) has developed and implemented the IEP, although late, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memorandum 09-02.

The State requires school districts with less than a 100 percent compliance rate to submit a statement of assurance of correction of the identified noncompliance.  The school superintendent must submit an assurance that the information reported to the State is accurate.  Prior to the school district’s submission that it has corrected the noncompliance, it is required to conduct a review to ensure that each identified student who did not receive their preschool special education services by their 3rd birthday or within the timeline required by State regulations, and for whom data was not already available in SIRS, has since had his or her IEP developed and implemented or if not, there is a reason that is in compliance with State requirements. 

Based on a regional sampling methodology, select school districts that have submitted a statement of assurance of corrected noncompliance are selected on an ongoing basis by the New York State Education Department (NYSED) Office of Special Education for an on-site review to verify the accuracy of the report.  If it is identified that the school district continues to have areas of noncompliance, NYSED issues and closely monitors a Compliance Assurance Plan (CAP) to address any instances of individual noncompliance as well as to resolve any underlying systemic reason(s) for the noncompliance.

During the FFY 2008, the State verified the timely correction of identified noncompliance, including individual student noncompliance as appropriate, in 10 of the 17 school districts using the above referenced review and assurance process.  In addition, the State verified the correction of noncompliance in six (6) of the seven (7) remaining districts with noncompliance beyond 12 months through the use of on-site reviews conducted by State monitoring staff from Office of Special Education.

The other school district with continuing noncompliance is NYC.  While individual students have since had their IEPs implemented, NYC demonstrates compliance annually for this indicator based on a representative sample of students.  Where the annual report does not demonstrate compliance, the State continues to cite the district for each year it cannot demonstrate that 100 percent of its students had their IEPs implemented by their third birthdays.  This noncompliance finding is the same as is reported for FFY 2009.

Correction of Remaining FFY 2007 Findings of Noncompliance (if applicable)
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.

  1. Number of findings of noncompliance the State made during FFY 2007 (the period from July 1, 2007 through June 30, 2008)  
28
  1. Number of FFY 2007 findings the State verified as timely corrected (corrected within one year from the date of notification to the local educational agency (LEA) of the finding)  
6
  1. Number of FFY 2007 findings not verified as corrected within one year [(1) minus (2)]
22
Correction of FFY 2007 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):
  1. Number of FFY 2007 findings not timely corrected (same as the number from (3) above) 
22
  1. Number of FFY 2007 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)
20
  1. Number of FFY 2007 findings not yet verified as corrected [(4) minus (5)]
2*

To address one school district’s finding of continuing noncompliance from the FFY 2007, State monitoring staff conducted an on-site review and issued a CAP.  Additionally, State monitoring staff maintains ongoing contact and the district was required to develop and implement an action plan.  If sufficient progress is not made regarding the resolution of the noncompliance, the State plans to redirect the district’s IDEA funds to address the requirements of this indicator.

*The other school district with continuing noncompliance is NYC.  While individual students have since had their IEPs implemented, NYC demonstrates compliance annually for this indicator based on a representative sample of students.  Where the annual report does not demonstrate compliance, the State continues to cite the district for each year it cannot demonstrate that 100 percent of its students had their IEPs implemented by their third birthdays.  This noncompliance finding is the same as is reported for FFY 2009.  NYSED has directed this district to:

  • develop a tracking system with specific targets throughout the school year for meeting evaluation and placement timelines.  Data will be provided to the responsible administrators at set intervals throughout the school year and they will be held accountable for performance at the cluster, network and school levels;
  • redirect a portion of its IDEA flow-through funds to hire CPSE administrators and clerical staff to reduce individual staff caseloads in order to meet mandated timeframes for evaluation and placement; and
  • track the evaluation timeframes for approved preschool evaluation sites and notify sites of their compliance rates.  NYSED and the district then follow-up with the providers and require corrective action.  Failure to improve performance could result in the removal of the evaluators’ approval status. 

The State and NYC are also implementing a Court Order Settlement Agreement for the timely placement of preschool children.  (D.D. et. al.  v New York City Board of Education).

Another major root cause of noncompliance for this indicator relates to personnel shortage areas, particularly in NYC.  The State and NYC are implementing court settlement actions under the Jose P. court case relating to timely placements of students and personnel shortages.

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.

Not applicable.  NYS issued notifications of noncompliance in FFY 2007 based on data submitted for the FFY 2006 school year.

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

Not applicable.  NYS issued notifications of noncompliance in FFY 2007 based on data submitted for the FFY 2005 school year.

Additional Information Required by the Office of Special Education Programs (OSEP) APR Response Table (if applicable)

Statement from the OSEP Response Table State’s Response
The State must demonstrate, in the FFY 2009 APR, that the State is in compliance with the early childhood transition requirements in 34 CFR §300.124(b).  Because the State reported less than 100% compliance for FFY 2008, the State must report on the status of correction of noncompliance reflected in the data the State reported for this indicator. To date, the State has verified the correction of 16 of 17 findings of noncompliance identified for this indicator from the FFY 2008.  This represents 94.1 percent of all identified findings of noncompliance for this indicator.  Because of the size of NYC, the State is unable to ensure, based on the re-reporting of compliance data from NYC annually for this indicator, that it has corrected the root causes resulting in less than 100 percent compliance.
When reporting on the correction of noncompliance, the State must report, in its FFY 2009 APR, that it has verified that each LEA with noncompliance reflected in the FFY 2008 data the State reported for this indicator, each LEA with noncompliance reflected in the FFY 2007 data the State reported for this indicator in the FFY 2007 APR, and each LEA with the remaining four uncorrected noncompliance findings identified in FFY 2007 (based on FFY 2005 and FFY 2006 data):  (1) is correctly implementing 34 CFR §300.124(b) (i.e., achieved 100% compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has developed and implemented the IEP, although late, for any child for whom implementation of the IEP was not timely, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.  In the FFY 2009 APR, the State must describe the specific actions that were taken to verify the correction. The State verified 16 of 17 or 94.1 percent of FFY 2008 findings and conducted on-site reviews to address any over 12 month noncompliance.  As a result, 6 of 7 or 85.7 percent of school districts with over 12 month findings of noncompliance are now in compliance with the requirements of this indicator.  See above explanation regarding NYC.

In the FFY 2007, the State verified 26 of 28 or 92.8 percent of school districts with findings of noncompliance and conducted on-site reviews to address any over 12-month noncompliance.  As a result, 20 of 22 or 90.9 percent of school districts with over 12-month noncompliance are now in compliance with the requirements of this indicator.  An on-site review was conducted and a CAP was issued in the one upstate school district with noncompliance over 12 months.  Additional enforcement actions have also been implemented to address this district’s noncompliance.  See above explanation of NYC noncompliance. 

If the State does not report 100% compliance in the FFY 2009 APR, the State must review its improvement activities and revise them, if necessary.

The State and NYC are implementing a Court Order Settlement Agreement for the timely placement of preschool children.  (D.D. et. al.  v New York City Board of Education).

A major root cause of noncompliance for this indicator relates to personnel shortage areas, particularly in NYC.  The State and NYC are implementing court settlement actions under the Jose P. court case relating to timely placements of students.

Improvement Activities Completed in 2009-10

  • The Office of Special Education accessed technical assistance from NECTAC to further inform its activities to improve transition from Part C EI programs to Part B preschool special education programs.
  • In May 2010, NYSED issued annual determination letters to superintendents of school districts that were identified as having noncompliance for Indicator 12.  The NECTAC checklist, “Local Corrective Action Plans: Collection and Use of Valid and Reliable Data for Determining Factors Contributing to Noncompliance” (2008), was referenced to provide school districts with examples of questions that should be considered when investigating contributing factors for noncompliance and developing improvement strategies.
    • Links to federal and State technical assistance resources were also included in the annual determination letters to assist district personnel to better understand the issues and effective practices pertaining to Indicator 12.  The link for NECTAC (http://www.nectac.org/external link) was among the resources listed.
    • Office of Special Education staff participated in monthly Communities of Practice (CoP), hosted by various federal technical assistance centers, in an effort to keep updated on the latest policy information and new resources that NYSED could use directly or share with stakeholder groups.  Included in the monthly CoP calls were those sponsored by NECTAC relating to Indicator 12.
  • To improve timely correction of noncompliance, the Office of Special Education continued the use of electronic notices, sent to school districts at three-month intervals, as a reminder of the noncompliance that needs to be corrected and the next steps that will be taken by the Office of Special Education should timely correction not occur.  The State’s monitoring staff also receive copies of the electronic notices and take appropriate proactive actions, including direct follow-up upon a finding that noncompliance was not corrected within nine months.
  • The State continued to provide a three-day training program for chairpersons of CSEs and CPSEs, which includes specific training on the timelines and process for evaluations, eligibility and IEP development.
  • The State’s funded ECDC and NYS SEQA staff facilitated regional meetings with preschool evaluators and school district to identify and address the reasons that preschool students were not receiving their evaluations within the required timelines. 
  • References to the federal technical assistance resources were built into the notifications to school districts that demonstrated continuing noncompliance as well as into the correspondence to superintendents letting them know of their FFY 2009 reporting responsibilities.  The federal technical assistance centers recommended to assist with field understanding of issues and effective practices included NECTAC.  Directions for corrective action planning contained in the notifications of continuing noncompliance were modeled on the “Resources for Systems Change and Improvement Planning” section of the SPP/APR calendar, available at http://spp-apr-calendar.rrfcnetwork.org/explorer/view/id/650?1#category1external link. Additionally, a team of policy, program development and monitoring staff that work with early childhood issues and programs participate regularly in the monthly CoP calls sponsored by NECTAC to gain insight into critical issues and benchmark practices nationally.

Revisions, with Justification, to Proposed Targets / Improvement Activities / Timelines / Resources for FFY 2009 [If applicable]

A new RFP was issued in FFY 2009 for a technical assistance center to address significant shortages of certified preschool providers who hold bilingual extensions and therefore are qualified to provide services to preschoolers with disabilities who are limited English proficient. 

Data will be analyzed by regions of the State and used in developing regional strategies for improvement.

Last Updated: February 28, 2011