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 4:  Rates of suspension and expulsion:

  1. Percent of districts that have a significant discrepancy in the rate of suspensions and expulsions of greater than 10 days in a school year for children with individualized education programs (IEPs); and
  2. Percent of districts that have (a) a significant discrepancy, by race or ethnicity, in the rate of suspensions and expulsions of greater than 10 days in a school year for children with IEPs; and (b) policies, procedures or practices that contribute to the significant discrepancy and do not comply with requirements relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards.
    (20 U.S.C. 1416(a)(3)(A); 1412(a)(22))

Measurement 4A:

A.  Percent = [(# of districts that have a significant discrepancy in the rates of suspensions and expulsions for greater than 10 days in a school year of children with IEPs) divided by the (# of districts in the State)] times 100.

New York State’s (NYS) Definition of Significant Discrepancy and Methodology:

In NYS, the rates of suspensions and expulsions of students with disabilities out of  school for more than 10 days in a school year are compared among the school districts in the State. 

For the baseline year 2004-05 through 2006-07, significant discrepancy was defined as a suspension rate of greater than three times the baseline statewide average (i.e., a rate of 4.0 percent or higher).

Beginning in 2007-08 through 2010-11, significant discrepancy is defined as a suspension rate of greater than two times the baseline statewide average, (i.e., a rate of more than 2.7 percent or higher).

The 2004-05 baseline statewide average suspension rate was 1.34 percent. School districts with at least 75 school-age students with disabilities that had a suspension rate of 4.0 percent or higher were identified as having significant discrepancy in their rate among school districts.  A minimum number of 75 students with disabilities was used since small numbers of students with disabilities may distort percentages.

The State uses a minimum of 75 students with disabilities “n” size requirement in its formula to compute significant discrepancy. However, it does not exclude school districts from the denominator when calculating results for this indicator.

Data Source:

NYS collects data on the number of students with disabilities suspended or expelled out of school for more than 10 days in a school year on the PD-8 report – See http://www.p12.nysed.gov/sedcar/forms/pdforms/0910/09word/09pd8.doc.  Data for this report are collected through the PD Data System, which is a web-based application used by school districts to provide aggregate data.  The State verifies the reliability and accuracy of the State’s data through automated edit checks and verification procedures.

Section 618 data are used to analyze for discrepancy in the rates of out-of-school suspensions of students with disabilities for greater than 10 days in a school year among school districts.  Suspension rates were calculated for all school districts.  From 2004-05 through 2007-08, the rates were computed by dividing the number of students with disabilities suspended out of school for more than 10 days, by the December 1 count of school-age students with disabilities and the result expressed as a percent.  From 2008-09 onward, the date for determining the count for school-age students changed from December 1 to the first Wednesday in October.

For Indicator 4A, NYS uses data collected for Table 5 of Information Collection 1820-0621 (Report of Children with Disabilities Unilaterally Removed or Suspended/Expelled for More than 10 Days) and reported to the United States Education Department (USED) annually in the 618 report. These data are also provided to USED in the corresponding EDFacts files.

Actual Target Data for FFY 2009

Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2009
Using 2008-09 school year data
4A.  No more than 2 percent of school districts in the State will suspend students with disabilities for more than 10 days at a rate of 2.7% or higher. (This rate is two times the baseline average.)
  Using 2009-10 school year data 4A.   No more than 2 percent of school districts in the State will suspend students with disabilities for more than 10 days at a rate of 2.7% or higher. (This rate is two times the baseline average.)

Actual Target Data for FFY 2009 for Indicator 4A:

In the 2008-09 school year, 40 school districts (5.9 percent of all school districts) had an out-of-district suspension rate for more than 10 days of 2.7 percent or higher.

In the 2009-10 school year*, 41 school districts (6.0 percent of all school districts) had an out-of-district suspension rate for more than 10 days of 2.7 percent or higher. 

* While the State is required to report in the APR the data results from the 2008-09 school year, it has chosen to also report on the State’s most recent year data for this indicator. The following chart displays three-year data results to demonstrate progress/slippage.

NYS evaluated suspension data from 574 school districts with a minimum enrollment of 75 students with disabilities (enrollment as of October 1, 2008).  This means that 108 school districts were excluded in the calculation for this indicator because of the State’s minimum size criteria. (rev. 4/11)

Indicator 4A. Local Educational Agencies (LEAs) with Significant Discrepancies in Rates for Suspension and Expulsion of Students with Disabilities
Year Total Number of LEAs Number of LEAs that have Significant Discrepancies Percent
FFY 2007 (2007-08) 683 64 9.4%
FFY 2008 (2008-09) 682 40 5.9%
FFY 2009 (2009-10) 682 41 6.0%

Review of Policies, Procedures and Practices (FFY 2008)

For each school district identified by their data as having a significant discrepancy in the rate of suspensions and expulsions of greater than 10 days in a school year of students with disabilities, the State ensures that a review is conducted of the district’s policies, procedures and practices relating to the development and implementation of IEPs, the uses of positive behavioral interventions and supports, and procedural safeguards among students with disabilities subject to discipline.  The State provides for the review of policies, procedures and practices each year a school district’s data shows a significant discrepancy in its suspension rates for students with disabilities as follows:

  • The first year a district’s data indicates a significant discrepancy, the State requires the district to complete a State-developed self-review monitoring protocol, which requires the review of specific policies, practices and procedures related to discipline of students with disabilities, including requirements relating to the development and implementation of IEPs, use of positive behavioral interventions and supports and procedural safeguards. The monitoring protocol for this review is available at http://www.p12.nysed.gov/specialed/spp/indicators/4.htm.  A report of the results of this review is submitted by the district to the State.  At the time of submission, school districts that identify issues of noncompliance are immediately notified that they must correct all issues of noncompliance as soon as possible, but not later than 12 months.  The results from this review are reported to the State for follow-up and corrective actions if compliance issues are identified.  Seventeen (17) of the 40 school districts identified in FFY 2008 had their review of policies, procedures and practices conducted in this manner.
  • For subsequent years in which a school district’s data indicates significant discrepancies, the State conducts the monitoring review of the district’s policies, procedures and practices as identified above.  Twenty-three (23) of the 40 school districts identified in FFY 2008 had their review of policies, procedures and practices conducted in this manner.

The State determined that 30 of the 40 school districts had policies, procedures and practices that were not in compliance and each of these districts were timely notified that the correction of noncompliance must be made as soon as possible, but not later than one year of notification.  

Review of Policies, Procedures and Practices (FFY 2009)

Using the same procedures as identified above, the State will complete its reviews of policies, procedures and practices of each of the 41 school districts identified in FFY 2009 as having significant discrepancies in their suspension rates and notify them that any findings of noncompliance.  The State will report on the number of districts with findings of noncompliance based on FFY 2009 data in the February 2012 APR.

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

Explanation of Progress or Slippage

In 2007-08, NYS revised its definition of “significant discrepancy” in suspension rate from a rate that is 4.0 percent or higher to a rate that is 2.7 percent or higher.  This resulted in identifying more school districts, i.e., 64 districts based on 2007-08 school year data compared to 16 school districts based on 2006-07 school year data.

Based on 2008-09 school year data, NYS identified 40 school districts with significant discrepancy. This data demonstrates significant improvement over the 2007-08 data results.

The 2009-10 school year represents the third year of implementing the State’s more rigorous definition of significant discrepancy of 2.7 percent or higher.  The percentage of school districts whose data indicated significant discrepancies in high rates of suspensions of students with disabilities for greater than 10 days increased slightly, from 5.9 percent (40 districts) to 6.0 percent (41 districts). 

While the State has not met its target for this indicator, an analysis of the number of school districts with a suspension rate of 4.0 percent or higher decreased significantly from 16 districts in 2006-07 to 10 school districts in 2009-10, demonstrating significant progress toward meeting the State’s target.  Also, 22 school districts improved their long-term suspension rates from the previous year to be below the State’s target, which also indicates progress in previously identified school districts.

NYS completed its review of policies, practices and procedures relating to the development and implementation of IEPs, the uses of positive behavioral interventions and supports, and procedural safeguards for students with disabilities subject to discipline in the 40 school districts identified based on 2008-09 data.  For districts identified based on 2009-10 data, the State will initiate these reviews in the spring and report results of these reviews in the next APR.

Correction of FFY 2008 Findings of Noncompliance

Beginning with last year’s (APR 2010) submission, NYS began reporting on the correction of noncompliance according to the school year in which the finding of noncompliance was issued.  This method of reporting is consistent with guidance and format provided by USED.  In earlier years, under this indicator, the State only reported on the number of school districts with noncompliance according to the data year (used for identification) and the notification year (the year in which districts were notified to complete a self-review of their practices, policies and procedures).  Please note that the number of districts reported in the tables below as having corrected findings within one year or after one year shows that some school districts corrected some of their findings within one year and other findings after one year. For this reason, some of the same school districts are reported in one or more of lines 1-6 depending on how many of the findings they corrected within one year or after one year.

  1. Number of findings of noncompliance the State made during FFY 2008 (the period from July 1, 2008 through June 30, 2009)
161 findings
(16 school districts)
  1. Number of FFY 2008 findings the State verified as timely corrected (corrected within one year from the date of notification to the LEA of the finding)
122 findings
(12 school districts)
  1. Number of FFY 2008 findings not verified as corrected within one year [(1) minus (2)]
39 findings
(4 school districts)
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 (line 3) above)
39 findings
(4 school districts)
  1. Number of FFY 2008 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”) 
32 findings
(3 school districts)
  1. Number of FFY 2008 findings not yet verified as corrected [(4) minus (5)]
7 findings
(1 school district)

Actions Taken if Noncompliance from FFY 2008 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.

There is one large city school district that has not yet corrected all of its noncompliance identified in FFY 2008.  Between February and April of 2011, the State was able to verify correction of seven of this district’s 14 issues of noncompliance.  The State’s monitoring staff have conducted regular follow-up activities to assess the district’s progress in completing the corrective actions specified in the Compliance Assurance Plan previously issued by the State.  The State also required the district to obtain technical assistance and has directed specialists from the Regional Special Education Technical Assistance Support Centers (RSE-TASC), including behavior specialists, to address root causes of noncompliance and assist the district in the development of systems of Positive Behavioral Interventions and Supports (PBIS).  As a result, the district’s rate of suspensions of greater than 10 days in a school year, however, has significantly improved. (rev. 4/11)

Verification of Correction of Findings (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 is correctly implementing the specific regulatory requirements.

The State verified correction of noncompliance for Indicator 4 as follows:

  • For noncompliance identified based on self-reviews, when the school district reported correction of noncompliance to the State, the State required an assurance from the school superintendent that each instance of noncompliance was corrected and that the information reported is accurate. 
  • For noncompliance identified based on on-site monitoring, the State’s monitoring staff followed up with each district to assure that the Compliance Assurance Plan was fully implemented and verified, through review of revised policies and a sample of student records, that the district is correctly implementing the specific regulatory requirements and that individual instances of noncompliance had been corrected. 

Correction of FFY 2007 Findings of Noncompliance (if applicable):

  1. Number of findings of noncompliance the State made during FFY 2007 (the period from July 1, 2007 through June 30, 2008)
167 findings
(13 school districts)
  1. 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)
107 findings
(8 school districts)
  1. Number of FFY 2007 findings not verified as corrected within one year [(1) minus (2)]
60 findings
(5 school districts)
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) 
60 findings
(5 school districts)
  1. Number of FFY 2007 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”) 
60 findings
(5 school districts)
  1. Number of FFY 2007 findings not yet verified as corrected [(4) minus (5)]
0 findings
(0 school district)

Actions Taken if Noncompliance from FFY 2007 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 findings of noncompliance during the 2006-07 school year have been corrected and the correction verified.

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.

  1. Number of findings of noncompliance the State made during FFY 2006 (the period from July 1, 2006 through June 30, 2007)
184 findings
(19 school districts)
  1. 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)
0 findings
(0 school districts)
  1. Number of FFY 2006 findings not verified as corrected within one year [(1) minus (2)]
184 findings
(19 school districts)
Correction of FFY 2006 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):
  1. Number of FFY 2006 findings not timely corrected (same as the number from (3) above)
184 findings
(19 school districts)

  1. Number of FFY 2006 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”) 
184 findings
(19 school districts)
  1. Number of FFY 2006 findings not yet verified as corrected [(4) minus (5)]
0 findings
(0 school districts)

All findings of noncompliance during the 2006-07 school year have been corrected and the correction verified.

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.

The State began issuing notifications of noncompliance beginning in the FFY 2006, thus there were no findings in FFY 2005.

Additional Information Required by the Office of Special Education Programs (OSEP) APR Response Table for this Indicator:

Statement from the OSEP Response Table State’s Response
The State reported that noncompliance identified in FFY 2007 and FFY 2006 as a result of the review it conducted pursuant to 34 CFR §300.170(b) was partially corrected.  When reporting on the correction of noncompliance, the State must demonstrate, in the FFY 2009 APR, that it has verified that each LEA with remaining noncompliance identified in FFY 2007 and FFY 2006 is correctly implementing the specific regulatory requirements. The State has verified that all issues of noncompliance identified in FFY 2006 and 2007 have been corrected. The State verified correction of noncompliance for Indicator 4 as follows:
  • For noncompliance identified based on self-reviews, when the school district reported correction of noncompliance to the State, the State required an assurance from the school superintendent that each instance of noncompliance was corrected and that the information reported is accurate. 
  • For noncompliance identified based on on-site monitoring, the State’s monitoring staff followed up with each district to assure that the Compliance Assurance Plan was fully implemented and verified, through review of revised policies and a sample of student records, that the district is correctly implementing the specific regulatory requirements and that individual instances of noncompliance had been corrected. 

Improvement Activities Completed in 2009-10

  • Electronic notices were 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 the State should timely correction not occur. 
  • Through a regional planning process, behavior specialists from the State’s RSE-TASC were assigned to provide technical assistance and training on implementation of PBIS and policies, procedures and practices relating to development and implementation of IEPs, the uses of positive behavioral interventions and supports, and procedural safeguards for students with disabilities subject to discipline. 
  • The State developed a three-day training program for chairpersons of Committees on Special Education (CSEs) and Committees on Preschool Special Education (CPSEs), which includes training on IEP development and positive behavioral supports and interventions.  Seventy-nine (79) regional training sessions were conducted throughout the year.
  • The State established a State Technical Assistance Center (TAC) on PBIS in March 2010 to train regional behavioral specialists and other State technical assistance providers to provide training and technical assistance to identified districts in the development of positive behavior principles and practices; provide timely access to research-based information on PBIS statewide through a web-based resource library; and continue development of research-based curriculum on PBIS to be used by State behavioral specialists in their work with school districts.
  • The Office of Special Education accessed technical assistance to further inform its activities to address suspension rates of students with disabilities and to promote positive behavioral supports and interventions in NYS' public and private schools from the National Center for PBIS.  The regional behavior specialists received direct on-site professional development and technical assistance from national PBIS center staff and the State supported attendance of the entire team of regional behavior specialists, NYS PBIS TAC staff and the New York State Education Department PBIS Project Manager at the National PBIS Leadership Forum in October 2010.  
  • The State developed a model IEP form (to be mandated for use by all NYS school districts beginning in the 2011-12 school year).  The form ensures that CSEs document in the IEP the results of its consideration of a student’s need for positive behavioral supports and other strategies.  Guidance and training on use of the form and IEP development were provided and are available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/home.html.
  • The State required all residential schools approved by the State to complete a self-review of its policies, procedures and practices relating to discipline procedures, functional behavioral assessments and intervention plans, use of time out and emergency interventions.  
  • Specialists from the RSE-TASC provided technical assistance and professional development to selected approved private schools.

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

NYS changed its monitoring procedures and technological support systems to provide reminder notices and direct follow-up to districts with continuing noncompliance. 

4B: Significant Discrepancies by Race/Ethnicity in High Suspension Rates

The new baseline for Measurement 4B is contained in the State Performance Plan (SPP) being submitted February 1, 2011, a copy of which is appended at the end of this APR.  Future APRs will discuss progress compared with the baseline established in the SPP.

Measurement 4B:

B.   Percent = [(# of districts that have: (a) a significant discrepancy, by race or ethnicity, in the rate of suspensions and expulsions of greater than 10 days in a school year for children with IEPs; and (b) policies, procedures or practices that contribute to the significant discrepancy and do not comply with requirements relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards) divided by the (# of districts in the State)] times 100. 

Definition of significant discrepancy:

NYS compares the number of students suspended of each race/ethnicity category with the number suspended of all other race/ethnicity categories combined and compute relative risk ratios and weighted relative risk ratios to determine if there is significant discrepancy in suspensions.  For notifications of school districts during the 2009-10 school year based on 2008-09 school year data, the State used the following definition of “significant discrepancy” 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 suspensions:

  • At least 75 students with disabilities enrolled on 10/1/08;
  • At least 10 students with disabilities of the particular race/ethnicity were suspended;
  • At least 20 students with disabilities of all other race/ethnicities were enrolled; and
  • Either:
    • Both the relative risk ratio and weighted relative risk ratio for any minority group  was 2.0 or higher; or
    • All students with disabilities suspended were from only one minority group regardless of the size of the relative risk ratio and weighted relative risk ratio.

The minimum numbers of students with disabilities was used since small numbers of students with disabilities may distort percentages.  However, in the State’s calculation, it does not exclude school districts from the denominator calculation as a result of this minimum “n” size.

For each school district identified by its data as having a significant discrepancy in the rate of suspensions and expulsions of greater than 10 days in a school year of students with disabilities, the State ensures that a review is conducted of the district’s policies, procedures and practices relating to the development and implementation of IEPs, the uses of positive behavioral interventions and supports, and procedural safeguards among students with disabilities subject to discipline.  The State provides for the review of policies, procedures and practices each year a school district’s data shows a significant discrepancy in its suspension rates for students with disabilities as follows: 

  • The first year a district’s data indicates a significant discrepancy, the State requires the district to complete a State-developed self-review monitoring protocol, which requires the review of specific policies, practices and procedures related to discipline of students with disabilities, including requirements relating to the development and implementation of IEPs, use of positive behavioral interventions and supports and procedural safeguards.  The monitoring protocol for this review is available at http://www.p12.nysed.gov/specialed/spp/indicators/4.htm.  A report of the results of this review is submitted by the district to the State.  At the time of submission, school districts that identify issues of noncompliance are immediately notified that they must correct all issues of noncompliance as soon as possible, but not later than 12 months.  The results from this review are reported to the State for follow-up and corrective actions if compliance issues are identified.  Districts that are identified with inappropriate policies, procedures and/or practices are identified for purposes of reporting in the APR for indicator 4B.
  • For subsequent years in which a school district’s data indicates significant discrepancies, the State conducts the monitoring review of the district’s policies, procedures and practices in the areas as identified above.

Data Source:

For 4B, NYS will use data collected for Table 5 of Information Collection 1820-0621 (Report of Children with Disabilities Unilaterally Removed or Suspended/Expelled for More than 10 Days) and reported in the annual 618 report to USED.  For 4B, NYS will also include data from reviews of policies, practices and procedures as defined in the above Measurement for this indicator.

Actual Target Data for FFY 2009

Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2009 4B.   Baseline, targets and improvement activities are provided in the FFY 2009 SPP being submitted February 1, 2011.

Data for FFY 2009 represents baseline data and is provided in the SPP.

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

Improvement activities are reported in the SPP Indicator 4B section.

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

Not applicable

Last Updated: April 20, 2011