By Nicole Garcia, MS.Ed., Educational Advocate

In New York, this week, students in grades 3-8 will take their English Language Arts and Math. As the testing season begins, the routine of school changes. The introduction of the Common Core State Standards (CCSS) has created even angst and frustration.   Governor Cuomo’s new accountability measures for teachers have created even more pressure for teachers and principals. Many parents believe that there exists too much emphasis on state testing. To help you navigate issues surrounding state testing for your child, we have provided some background.

The No Child Left Behind Act

In January 2002, President George W. Bush signed into law the No Child Left Behind Act of 2001 (NCLB), which represented a re-authorization of the Elementary and Secondary Education Act of 1965 (“ESEA”). NCLB required all states to develop assessments tests in basic skills to receive federal funds. School districts must administer assessments to all students (on selected grade levels) or risk losing federal funding. NCLB expanded the federal role in public education and increased accountability for teachers and schools. Students must be tested in science at least one grade in elementary, middle and high school. Depending on which state, testing occurs from February through April. NCLB is overdue for re-authorization (since 2007) and Secretary Duncan has proposed a blueprint, but Congress has not reauthorized the law yet.

New York Adopted Common Core State Standards as NCLB Assessments

Every state, including New York, has put in place testing and standards in core subjects to comply with NCLB requirements.  For ELA and math, New York, like most other states, adopted the CCSS in 2010 and first implemented the CCSS exams—as the NCLB assessments– in the Spring of 2013.   The CCSS aspire to create a “common core of standards that are internationally benchmarked, aligned with work and post-secondary education expectations, and inclusive of the higher order skills that students need…”   Essentially, the tests are aligned to prepare students for the skills measured by the ACT and SAT and prepare them for a globally competitive marketplace. Yet, in New York, students had to take the CCSS with little preparation and most teachers did not receive training, the first year that the tests were given. Only 33% of students in New York State achieved proficiency.

Supporters of the CCCS assessments believe the test provides a measure of accountability for what goes on in the classroom, as well as greater rigor. The more rigorous standards help students meet basic proficiency levels and to achieve skills to become “college and career ready.” Supporters also believe teachers will perform to ensure that children will be prepared and score well on the state test.

But many parents and educators have been highly critical of the exams.   They have observed that scores do not convey additional portions of the curriculum and do not include measurement of progress in enrichment programs. Critics contend that the tests do not measure whether a student is learning critical thinking skills or how engaged students are in the learning process.  Teachers have little time for other subjects. Recent accountability measures for teachers have exacerbated this pressure. Also, many parents are concerned that teachers “teach to the test” and must necessarily eliminate enriching opportunities and creative lessons from the curriculum.  More information about the CCSS can be found on the New York State Education Department website.

Most School Accountability Measures Have Been Waived in New York

In the past, schools and school districts that did not show students making adequate yearly progress (“AYP”) toward achieving proficiency could be subject to federal sanctions (e.g., offering school choice, loss of federal funds, possible complete restructuring of the school, or closing the school). In 2012, President Obama waived most of these sanctions for approximately 32 states, including New York. Yet each state still holds schools accountable for results. Test scores provide an indication of how students are performing and are reported by State Department of Education to compare groups of students from year to year.

New York State Alternative Assessment

Children with the most severe cognitive disabilities, as set forth in their Individualized Education Programs (IEPS), may take alternate assessments. In New York, students with alternate assessments on their IEP take the New York State Alternate Assessment (NYSAA). Students with severe cognitive disabilities may demonstrate their performance toward achieving the New York State P-12 CCSS in English language arts and mathematics on the NYSAA.

The Committee on Special Education (CSE) for each student will determine eligibility for participation in the NYSAA. Only a very small percentage of students should take alternative assessments. More information about NYSAA is available on the state education website at: http://www.p12.nysed.gov/assessment/nysaa/.

What Can Parents Do?

1. Know when and what testing will be offered. Don’t ignore the obvious step of understanding when and what testing your child will be taking. Testing begins this week in New York in Grades 3-8. School calendars should indicate when the tests are administered. In grades 3-8, each child will take the English Language Arts (ELA) and Mathematics assessments. Children will also take Science and Social Studies assessments, in fourth and fifth grades and may again take it in eighth grade. Speak with your teacher in the beginning of the year to find out.

2. Reassure your child to prevent stress.   Parents should keep their children calm and prevent any stress and anxiety.   The CCCS assessments should not be a primary or major factor in any promotion decisions, so parents should reassure their children.

3. In the fall, ask for an information session on the test and the results from the prior year. Because New York State does not release the results of assessments to school districts and parents until the following school year, many parents may forget to follow up. When you receive the assessment results, ask the school principal to hold an information session about the test and the results. Parents may misunderstand the purpose of these assessments and how to read the results. An educator would be able to clarify in “parent terms” what the results mean. Once parents are given clarity about the assessments, they may have a better understanding of their child’s strengths and areas of need.

4. Become educated on the assessments and support available. Parents should reach out to their child’s teacher to find out if he or she will be offering extra support for testing. This may include more homework or staying after school. The parent can correspond by email and sending a letter to school, or leaving a message for the teacher with the office. Parents can find out if their child is entitled to Academic Intervention Services (AIS). AIS is designed to help students achieve the learning standards in ELA and mathematics and supplements the general curriculum. AIS can be given throughout the day or after school. New York State has provided Guidance  on cut scores to school districts on when they must offer AIS services, since most students in New York State are not yet proficient on the CCCS. Parents should also become educated on the goals of the assessments and support the skills measured by the CCSS. Guidance for parents and families on the CCCS is available.

5. Consider whether your child should opt out of testing. Today, more parents are considering this option.  School districts discourage opting out, as schools must show a certain level of participation on the exams or could risk state funding and educators are concerned about the lack of assessment data.   Parents should work with their local PTA/PTSA to find out information on removing their child from state testing. Review carefully the pros and cons of opting out. Many advocacy groups have set forth information on opting out.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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Posted in New York Special Needs, Special Education Advocacy | Comments Off on Understand the Emphasis on State-Standardized Testing and What Parents Can Do
Tags: CCSS, Comon Core State Standards, education, IEPS, No Child Left Behind, NYSAA, nysed

By Marion Walsh, Esq.

The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.

NYSED Requests Compliance Agreement

On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.

NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.

USDOE Sought Comment on Two Questions

At the public hearing, the USDOE panel asked the public to comment on two questions:

1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)

2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?

NYSED Must Come into Compliance within One Year

NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”

The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:

• a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
• a directive that dismissals do not require decisions and;
• a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.

If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight

If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:

• Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
• Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
  
• Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
• Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
  
• Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
• Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.

In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.

There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to:  OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202.  The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.

Posted in Special Education Advocacy | Comments Off on USDOE Hears Testimony on SRO Delays and Proposed Compliance Agreement
Tags: "SRO", FAPE, IHO, nysed, usdoe