Equity in IDEA ___________________ NOTICE OF PROPOSED RULEMAKING Michael Yudin Assistant Secretary for Special Education and Rehabilitative Services Ruth Ryder Acting Director for Special Education Programs 1

AGENDA Part I – Background o OSERS’ Analysis of Section 618 Data o Data on Racial and Ethnic Disparities o GAO Report — February 2013 Part II – The Current Regulation on Significant Disproportionality Part III – Proposed Rule o Standard Approach o Review (and Revision) of Policies, Practices, Procedures o Discipline o Comprehensive, Coordinated Early Intervening Services Part IV – How to Comment o Directed Questions o Regulations.gov 2

Part I — Data on Racial and Ethnic Disparities From ED’s estimates, using Section 618 Data: 786 local education agencies (LEAs) identified black students with emotional disturbance at least 3 times as often as all other students, for 3 consecutive years (2012–2014). 523 LEAs identified American Indian students as students with a disability at least 67% more often than all other students, for 3 consecutive years (2012–2014). 876 LEAs gave black students with disabilities short term, out-of- school suspensions at least 2 times as often as all other students with disabilities, for 3 consecutive years (2012–2014). 3

Part I — OSERS’ Analysis of Section 618 Data 4 Roughly 2–3% of LEAs identified each year as having significant disproportionality (fewer than 500) school year:  75% of identified LEAS were in 7 States  22 States identified no LEAs with significant disproportionality  Of States that identified LEAs, 11 only identified in one category of analysis (i.e., either identification, placement, or discipline)  Only 4 States and DC identified LEAs in all three categories of analysis

Part I — Data on Racial and Ethnic Disparities The Civil Rights Data Collection (March 2014, based on collection) Disproportionately high suspension/expulsion rates for students of color:  Black students are suspended and expelled at a rate three times greater than white students.  On average, 5% of white students are suspended, compared to 16% of black students.  American Indian and Native-Alaskan students are also disproportionately suspended and expelled, representing less than 1% of the student population but 2% of out-of-school suspensions and 3% of expulsions. 5

Suspension rates, by race, sex, and disability status combined:  With the exception of Latino and Asian-American students, more than one out of four boys of color with disabilities (served by IDEA)—and nearly one in five girls of color with disabilities—receives an out-of-school suspension. Suspension of students with disabilities:  Students with disabilities are more than twice as likely to receive an out-of-school suspension (13%) than students without disabilities (6%). 6

Part I — February 2013 — GAO Report Findings: 2% of LEAs in were identified with significant disproportionality “the discretion that states have in defining significant disproportionality has resulted in a wide range of definitions that provides no assurance that the problem is being appropriately identified across the nation.” 7

Part II – Current Regulation on Significant Disproportionality Each State is able to define what constitutes significant disproportionality for their LEAs and for their State based on a numerical analysis. 8

Part II – Current Regulation on Significant Disproportionality The State must: ●Make an annual determination of significant disproportionality with respect to identification, placement and discipline. ●Provide for the review of the policies, practices, and procedures of LEAs that were identified as having significant disproportionality based on the numerical analysis to ensure they comply with IDEA requirements. ●Require the LEA to reserve 15% of Part B IDEA flow through funds to provide comprehensive coordinated early intervening services (CEIS) to serve children who have not been identified as children with disabilities in the LEA, particularly, but not exclusively, children in those groups that were significantly overidentified. 9

Part III – The Proposed Rule: Standard Approach Proposed Rule: States would be required to:  Use Risk Ratios method  Set a reasonable risk ratio threshold, developed based on advice from stakeholders (including State Advisory Panels)*  Set a minimum cell size no greater than 10 *Subject to Departmental monitoring and enforcement for reasonableness. 10

Part III – Standard Approach Flexibilities Proposed Rule: States would have the flexibility to: Use up to 3 years of data to identify an LEA Not identify LEAs if they are demonstrating reasonable progress, as determined by the State 11

Part III – Review and Revision Proposed Rule: States are required to provide for the review and, if appropriate, revision of policies, practices, and procedures on an annual basis Identified LEAs must address the factors contributing to the significant disproportionality 12

Part III — Discipline Proposed Rule: Would clarify that following a finding of significant disproportionality in disciplinary removals States and LEAs are required to:  Implement the statutory remedies – comprehensive coordinated early intervening services (comprehensive CEIS), and  Review, and if appropriate, revise policies, practices and procedures and publicly report on any revisions. 13

Part III — Comprehensive CEIS Proposed Rule: Would allow LEAs identified with significant disproportionality to use comprehensive CEIS to serve students, ages 3 through grade 12, with and without disabilities.* Would require LEAs to identify and address the factors contributing to the significant disproportionality. *Would continue to prohibit LEAs from using comprehensive CEIS exclusively for students with disabilities. 14

Part IV – How to Comment (Directed Questions) Directed Questions  These are specific areas about which the Department is requesting feedback.  They are areas for which the Department seeks additional information regarding the proposed rule and hopes to learn more from the public.  The directed questions are listed in the Federal Register Notice of Proposed Regulation Making from page to page

Part IV – How to Comment To review the NPRM, go to the: March 2, 2016 Federal Register, Vol 81, No 41, page Federal eRulemaking Portal:  allows you to submit your comments electronically.  For help go to the Help section and choose “How to use Regulations.gov” Please submit your comments as soon as possible.  The final date to submit comments is May 16,