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 occurs after August 31 following the full school year for which 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 or to whom exceptions under 34 CFR §300.301(d) applied.
  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 collects data for this indicator via the Student Information Repository System (SIRS) and verifies these data by displaying them in a VR11 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 2010
(2010-11 school year)
100 percent 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 2010:

In FFY 2010, 70.3 percent of children referred from Part C had their eligibility for Part B determined or IEP implemented by their third birthday or in compliance with timelines established in State law.

NYS’ Method Used to Collect Data

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.  School districts report 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 2009 FFY 2010
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.) 2,641 2,470
b.  Number of those referred determined to be NOT eligible and whose eligibility was determined prior to third birthday 146 141
c.  Number of those found eligible who have an IEP developed and implemented by their third birthdays 385 436
d.  Number for whom parent refusals to provide consent caused delays in evaluation or initial services 522 451
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.]
22 4
f.   Number of children whose parents chose to continue their child in Early Intervention Program 1,246 1,156
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) 108 98
Number in a but not in b, c, d, e, f or g. 212 184
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
64.5% 70.3%

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

In FFY 2010, there were 184 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 2010 Unknown Total Percent
Of
Total
1-10 11-20 21-30 Over 30
An approved evaluator was not available to provide an evaluation. 2 0 1 22   25 13.6%
Additional evaluations were requested outside of the required timeline. 0 0 0 4   4 2.2%
There were evaluator delays in completing the evaluation. 4 5 0 55   64 34.8%
Delays in scheduling the CPSE meetings 3 3 2 54   62 33.7%
The recommended Part B services were not available when child turned three years of age. 2 1 1 20   24 13.0%
Inaccurate or incomplete data        5 5 2.7%
Total 11 9 4 155 5 184 100%
Percent of Total 6.0% 4.9% 2.2% 84.2% 2.7%

Discussion of Improvement Activities Completed and Explanation of Progress or Slippage that occurred for FFY 2010:

Explanation of Progress or Slippage:

In 2010-11, NYS’ compliance rate significantly improved from 64.5 percent in FFY 2009-10 to 70.3 percent.  This improvement is also noteworthy in that 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 of compliance improved by 5.3 percentage points contributing to the State’s improved performance.

  • 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).
  • In 2011, State law was amended to address corporate practice law limitations for private approved evaluation programs.  This will begin to address the State’s prior inability to approve any new preschool evaluators to address availability of approved evaluators.
  • There was a significant decrease in the percent of delays caused by delays in scheduling the CPSE meetings (from 51.4 percent in FFY 2009 to 33.7 percent in FFY 2010), primarily in NYC (see below for actions the State took to address this issue).
  • There was also a decrease in the percent of delays resulting from a lack of approved evaluators available to provide timely evaluations, decreasing from 14.2 percent in FFY 2009 to 13.6 percent in FFY 2010.

Correction of FFY 2009 Findings of Noncompliance (if State reported less than 100 percent compliance)
Level of compliance (actual target data) State reported for FFY 2009 for this indicator:  64.5%

  1. Number of findings of noncompliance the State made during FFY 2009 (the period from July 1, 2009 through June 30, 2010)  
20
  1. Number of FFY 2009 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)  
20
  1. Number of FFY 2009 findings not verified as corrected within one year [(1) minus (2)]
0
Correction of FFY 2009 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance):
  1. Number of FFY 2009 findings not timely corrected (same as the number from (3) above) 
0
  1. Number of FFY 2009 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)
0
  1. Number of FFY 2009 findings not yet verified as corrected [(4) minus (5)]
 0

Actions Taken if Noncompliance Found Is Not Corrected:
Not applicable.

Verification of Correction (either timely or subsequent):
To verify correction of noncompliance, the State required the district to conduct a review of each identified student who did not receive their preschool special education services by his/her third birthday or within the timeline required by State regulations; and document that the student has since had his or her IEP developed and implemented or if not, there is a reason that is in compliance with State requirements.   Each district is required to complete a student-specific chart found at the end of the VR 12 report for each identified student, if any, maintain this documentation, and make it available upon request by the New York State Education Department (NYSED).  Each district is also required to conduct a review over a three consecutive month period to determine if all children who transition from Part C program to preschool special education have had their eligibility for preschool special education determined and, if found eligible, had their IEPs developed and implemented by their third birthdays (except when the parent has agreed to keep their child in the EI program in accordance with State regulations).  The district completes a student-specific chart found at the end of the VR 12 report and maintains this documentation, which must be made available for review upon request by NYSED.  This was required to assure that the district has addressed the reasons why children transitioning from EI to preschool special education were not receiving timely special education services.

See http://www.p12.nysed.gov/sedcar/forms/vr/1011/html/verif12.htm.

For NYC, the State verified that all preschool children had since had their IEPs implemented.  NYC reports annually on a representative sample of preschool students for this indicator.  If data is less than 100 percent for this indicator, a new finding of noncompliance is found for the year in which the data is reported.

Correction of Remaining FFY 2008 Findings of Noncompliance (if applicable)

  1. Number of remaining FFY 2008 findings noted in the Office of Special Education Program’s (OSEP) June 2010 FFY 2009 APR response table for this indicator 
1
  1. Number of remaining FFY 2008 findings the State has verified as corrected
1
  1.  Number of remaining FFY 2008 findings the State has not verified as corrected [(1) minus (2)]
0

Verification of Correction of Remaining FFY 2008 findings:

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.

For NYC, the State verified that all preschool children had since had their IEPs implemented.  NYC reports annually on a representative sample of preschool students for this indicator.  If data is less than 100 percent for this indicator, a new finding of noncompliance is found for the year in which the data is reported.

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

  1. Number of remaining FFY 2007 findings noted in OSEP’s June 2010 FFY 2009 APR response table for this indicator 
2
  1. Number of remaining FFY 2007 findings the State has verified as corrected
1
  1. Number of remaining FFY 2007 findings the State has not verified as corrected [(1) minus (2)]
1

For the one district with continuing noncompliance, the State’s Special Education Quality Assurance (SEQA) staff conducted a review to identify the root cause (timely evaluations and scheduling of CPSE meetings to develop the IEPs).  The Associate Commissioner of the Office of Special Education and other Office of Special Education managers met with the district’s Board of Education and the administration (superintendent and cabinet) to discuss the district’s failure to address the noncompliance.  Individuals with Disabilities Education Act (IDEA) funds were redirected to require the district to obtain direct technical assistance to address the issue.  The special consultant hired by the district developed an action plan for the district to resolve the noncompliance and is assisting the district in the implementation of the plan.  On a monthly basis, SEQA meets with district staff and review records to monitor the implementation of the plan and the district’s progress toward correction of noncompliance.

Verification of Correction of Remaining FFY 2007 findings:

The State verified for NYC that the identified individual students have since had their IEPs implemented.  NYC demonstrates compliance annually for this indicator based on a representative sample of students.  For this indicator, if NYC’s annually reported data does not show 100 percent compliance, it is reported as a new finding for the year reported.

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

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)

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 OSEP APR Response Table (if applicable)

Statement from the OSEP Response Table State’s Response
The State must demonstrate, in the FFY 2010 APR, due February 1, 2012, 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 percent compliance for FFY 2009, the State must report on the status of correction of noncompliance reflected in the FFY 2009 data the State reported for this indicator. The State did not report 100 percent compliance with the early childhood transition requirements in is FFY 2010 APR.  However, the State did report progress.

The State must demonstrate, in the FFY 2010 APR, that the remaining one uncorrected noncompliance finding identified in FFY 2008 and the remaining two uncorrected noncompliance findings identified in FFY 2007 were corrected.

The State reported correction of noncompliance of the FFY 2008 findings.

The State reported for FFY 2007, that only one district (one finding of noncompliance) remains. The State reported on its enforcement actions taken with the one district with continuing noncompliance.
When reporting on the correction of noncompliance, the State must report, in its FFY 2010 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 2009 data and each LEA with remaining  noncompliance identified in FFY 2008 and FFY 2007 the State reported for this indicator:  (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 2010 APR, the State must describe the specific actions that were taken to verify the correction.

The State reported on its verification of the correction of noncompliance (see above), which included both individual and systemic corrections.

The State’s failure to correct longstanding noncompliance raises serious questions about the effectiveness of the State’s general supervision system.  The State must take the steps necessary to ensure that it can report, in the FFY 2010 APR, that it has corrected this noncompliance.

The State has reported on the appropriate and progressive enforcement actions it has taken with the one district with continuing noncompliance.  For a State as large as New York, one district’s failure to correct noncompliance does not represent a systemic failure on the part of the State’s general supervision system.

Improvement Activities Completed in 2010-11

  • The Office of Special Education accessed technical assistance from the National Early Childhood Technical Assistance Center (NECTAC) to further inform its activities to improve transition from Part C EI programs to Part B preschool special education programs.
  • Links to federal and State technical assistance resources were also included in the notifications to district personnel for noncompliance findings.  The link for NECTAC (http://www.nectac.org/external link) was among the resources listed.
  • Office of Special Education staff participated in 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.  Monitoring staff 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.  In 2010-11, 46 three-day sessions were provided throughout NYS.
  • The State’s funded Early Childhood Direction Centers and NYS SEQA staff facilitated regional meetings with preschool evaluators and school districts to identify and address the reasons that preschool students were not receiving their evaluations within the required timelines.
  • Staff from the Office of Special Education represent the Commissioner of Education in meetings of the State Early Intervention Coordinating Council (EICC).  The EICC advises the Part C agency (the NYS Department of Health (DOH)) on required early intervention activities, including the transition of children from Part C to Part B.
  • The Part B and Part C agencies continue to review the Memorandum of Understanding that focuses on activities that result in a smooth transition of children from Part C to Part B, including monitoring programs that are approved by both DOH, the Part C agency and NYSED, the Part B agency.

Revisions, with Justification, to Proposed Targets / Improvement Activities / Timelines / Resources for FFY 2010 [If applicable]

See indicator 11.

Last Updated: January 27, 2012