Dec. 19, 2016 (81 Fr 92376)
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Dec. 19, 2016 (81 Fr 92376)
92376 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Part 300
[Docket ID ED–2015–OSERS–0132]
RIN 1820–AB73
Assistance to States for the Education
of Children With Disabilities;
Preschool Grants for Children With
Disabilities
AGENCY : Office of Special Education and
Rehabilitative Services, Department of
Education.
ACTION : Final regulations.
SUMMARY : The Secretary amends the
regulations under Part B of the
Individuals with Disabilities Education
Act (IDEA) governing the Assistance to
States for the Education of Children
with Disabilities program and the
Preschool Grants for Children with
Disabilities program. With the goal of
promoting equity under IDEA, the
regulations will establish a standard
methodology States must use to
determine whether significant
disproportionality based on race and
ethnicity is occurring in the State and in
its local educational agencies (LEAs);
clarify that States must address
significant disproportionality in the
incidence, duration, and type of
disciplinary actions, including
suspensions and expulsions, using the
same statutory remedies required to
address significant disproportionality in
the identification and placement of
children with disabilities; clarify
requirements for the review and
revision of policies, practices, and
procedures when significant
disproportionality is found; and require
that LEAs identify and address the
factors contributing to significant
disproportionality as part of
comprehensive coordinated early
intervening services (comprehensive
CEIS) and allow these services for
children from age 3 through grade 12,
with and without disabilities.
DATES :
Effective Date: These regulations are
effective January 18, 2017. Compliance Date: Recipients of
Federal financial assistance to which
these regulations apply must comply
with these final regulations by July 1,
2018, except that States are not required
to include children ages three through
five in the calculations under
§ 300.647(b)(3)(i) and (ii) until July 1,
2020.
FOR FURTHER INFORMATION CONTACT :
Mary Louise Dirrigl, U.S. Department of
Education, 400 Maryland Avenue SW.,
Room 5156, Potomac Center Plaza, Washington, DC 20202–2600.
Telephone: (202) 245–7324.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll free, at 1–800–877–
8339.
SUPPLEMENTARY INFORMATION :
Executive Summary Purpose of This Regulatory Action:
The purpose of these final regulations is
to promote equity in IDEA. Specifically,
the final regulations will help to ensure
that States meaningfully identify LEAs
with significant disproportionality and
that States assist LEAs in ensuring that
children with disabilities are properly
identified for services, receive necessary
services in the least restrictive
environment, and are not
disproportionately removed from their
educational placements by disciplinary
removals. These final regulations also
address the well-documented and
detrimental over-identification of
certain students for special education
services, with particular concern that
over-identification results in children
being placed in more restrictive
environments and not taught to
challenging academic standards. While these regulations only establish
a system for identifying significant
disproportionality based on
overrepresentation, the regulations
acknowledge that overrepresentation
may be caused by under-identification
of one or more racial or ethnic groups
and the regulations allow funds
reserved for comprehensive CEIS to be
used to address these issues if they are
identified as a factor contributing to the
significant disproportionality. LEAs are
legally obligated to identify students
with disabilities and provide the
resources and supports they need to
have equal access to education. Thus
we, encourage States to ensure that the
State’s and LEAs’ child find policies,
practices, and procedures are working
effectively to identify all children with
disabilities, regardless of race or
ethnicity. IDEA requires States and local
educational agencies (LEAs) to take
steps to determine the existence of and
address significant disproportionality in
special education. The statute and
regulations for IDEA, Part B, include
important provisions for how States and
LEAs must address significant
disproportionality, including an
examination of significant
disproportionality and remedies
where findings of significant
disproportionality occur. Under IDEA section 618(d) (20 U.S.C.
1418(d)) and § 300.646, States are required to collect and examine data to
determine whether significant
disproportionality based on race or
ethnicity is occurring in the State and
the LEAs of the State with respect to the
identification of children as children
with disabilities, including
identification as children with
particular impairments; the placement
of children in particular educational
settings; and the incidence, duration,
and type of disciplinary actions,
including suspensions and expulsions.
States must make this determination
annually.
When a State educational agency
(SEA) identifies LEAs with significant
disproportionality in one or more of
these areas based on the collection and
examination of their data, States must:
(1) Provide for the review (and if
appropriate) revision of the LEA’s
policies, procedures, and practices for
compliance with IDEA; (2) require the
LEA to reserve the maximum amount
(15 percent) of its Part B funds to be
used for comprehensive coordinated
early intervening services
(comprehensive CEIS) to serve children
in the LEA, particularly, but not
exclusively, children in those groups
that were significantly over-identified;
and (3) require the LEA to publicly
report on the revision of its policies,
procedures, and practices. Under the
statute and regulations, each State has
considerable discretion in how it
defines significant disproportionality.
To address and reduce significant
disproportionality, the final regulations
establish a standard methodology that
each State must use in its annual
determination under IDEA section
618(d) (20 U.S.C. 1418(d)) of whether
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State.
Further, the final regulations clarify
ambiguities in the existing regulations
concerning significant
disproportionality in the disciplining of
children with disabilities. Specifically,
these regulations adopt the
Department’s long-standing
interpretation that the required
remedies in IDEA section 618(d)(2)
apply when there is significant
disproportionality in identification,
placement, or any type of disciplinary
removal from placement. In addition,
funds reserved for comprehensive CEIS
now must be used to identify and
address the factors contributing to
significant disproportionality and may
be used to serve children from age 3
through grade 12, with and without
disabilities.
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92377 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Summary of Major Provisions of This
Regulatory Action
Significant provisions of these final
regulations include: • §§ 300.646(b) and 300.647(a) and (b)
provide the standard methodology that
States must use to determine whether
there is significant disproportionality
based on race or ethnicity in the State
and its LEAs; • As part of the standard
methodology, § 300.647(b)(1) requires
States to set reasonable risk ratio
thresholds, reasonable minimum
n-sizes, reasonable minimum cell sizes,
and if a State uses the flexibility
described in § 300.647(d)(2), standards
for measuring reasonable progress, all
with input from stakeholders (including
their State Advisory Panels), subject to
the Department’s oversight; • § 300.647(b)(1)(iv) sets a rebuttable
presumption that a minimum cell size
of no greater than 10 and a minimum
n-size of no greater than 30 are
reasonable. • § 300.647(d) provides flexibilities
that States, at their discretion, may
consider when determining whether
significant disproportionality exists.
States may choose to identify an LEA as
having significant disproportionality
after an LEA exceeds a risk ratio
threshold for up to three prior
consecutive years. States may also
choose not to identify an LEA with
significant disproportionality if the LEA
is making reasonable progress, as
defined by the State, in lowering risk
ratios in each of the two consecutive
prior years, even if the risk ratios exceed
the State’s risk ratio thresholds; • § 300.646(c) clarifies that the
remedies in IDEA section 618(d)(2) are
triggered if a State makes a
determination of significant
disproportionality with respect to
disciplinary removals from placement; • § 300.646(c)(1) and (2) clarify that
the review of policies, practices, and
procedures must occur in every year in
which an LEA is identified with
significant disproportionality and that
LEA reporting of any revisions to
policies, practices, and procedures must
be in compliance with the
confidentiality provisions of the Family
Educational Rights and Privacy Act
(FERPA), (20 U.S.C. 1232), its
implementing regulations in 34 CFR
part 99, and IDEA section 618(b)(1); and • § 300.646(d) describes which
populations of children may receive
comprehensive CEIS when an LEA has
been identified with significant
disproportionality. Comprehensive CEIS
may be provided to children from age 3
through grade 12, regardless of whether they are children with disabilities, and,
as part of implementing comprehensive
CEIS, an LEA must identify and address
the factors contributing to the
significant disproportionality.
Costs and Benefits: Due to the
considerable discretion allowed States
(e.g. flexibility to determine their own
reasonable risk ratio thresholds,
reasonable minimum n-sizes and cell
size, and the extent to which LEAs have
made reasonable progress under
§ 300.647(d)(2) in lowering their risk
ratios or alternate risk ratios, we cannot
evaluate the costs of implementing the
final regulations with absolute
precision. However, we estimate the
total cost of these regulations over ten
years would be between $50.1 and $91.4
million, plus transfers between $298.4
and $552.9 million. These estimates
assume discount rates of three to seven
percent.
There are several benefits of the
regulations that include: Increased
transparency regarding each State’s
definition of significant
disproportionality; an increased role for
State Advisory Panels in determining
States’ risk ratio thresholds, minimum
n-sizes, and minimum cell sizes; and
State review and, if appropriate,
revision of the policies, procedures, and
practices used in the identification,
placement, or discipline of children
with disabilities, to ensure that the
policies, procedures, and practices
comply with the requirements of IDEA;
and, ultimately, better identification,
placement, and discipline of children
with disabilities.
Additionally, the Department believes
that expanding the eligibility of children
ages three through five to receive
comprehensive CEIS would give LEAs
new flexibility to use additional funds
received under Part B of IDEA to
provide appropriate services and
supports at earlier ages to children who
might otherwise later be identified as
having a disability, which could reduce
the need for more extensive special
education and related services for such
children in the future. The Department
believes this regulatory action to
standardize the methodology States use
to identify significant disproportionality
will provide clarity to the public,
increase comparability of data across
States, and improve upon current
policy, which has resulted in State
definitions which vary widely and may
prevent States from identifying the
magnitude of racial and ethnic
overrepresentation in special education.
We provide further detail regarding
costs and benefits in the Regulatory
Impact Analysis section. General
On March 2, 2016, the Secretary
published a notice of proposed
rulemaking (NPRM) in the Federal
Register (81 FR 10967) to amend the
regulations in 34 CFR part 300
governing the Assistance to States for
the Education of Children with
Disabilities program and the Preschool
Grants for Children with Disabilities
program. Specifically, in the NPRM, we
proposed changes to the regulation
regarding significant disproportionality
based on race and ethnicity in the
identification, placement, and
discipline of children with disabilities. In the preamble of the NPRM, we
discussed on pages 10980 and 10981 the
major changes proposed in that
document. These included the
following: • Adding §§ 300.646(b) and
300.647(a) and (b) to provide the
standard methodology that States must
use to determine whether there is
significant disproportionality based on
race or ethnicity in the State and its
LEAs; • Adding § 300.647(c) to provide the
flexibilities that States, at their
discretion, may consider when
determining whether significant
disproportionality exists. States may
choose to identify an LEA as having
significant disproportionality after an
LEA exceeds a risk ratio threshold for
up to three prior consecutive years. A
State also has the flexibility not to
identify an LEA with significant
disproportionality if the LEA is making
reasonable progress under
§ 300.647(d)(2) in lowering the risk
ratios, even if they exceed the State’s
risk ratio thresholds, where reasonable
progress is defined by the State; • Amending current § 300.646(b)
(proposed § 300.646(c)) to clarify that
the remedies in IDEA section 618(d)(2)
are triggered if a State makes a
determination of significant
disproportionality with respect to
disciplinary removals from placement; • Amending current § 300.646(b)(1)
and (3) (proposed § 300.646(c)(1) and
(2)) to clarify that the review of policies,
practices, and procedures must occur in
every year in which an LEA is identified
with significant disproportionality, and
that LEA reporting of any revisions to
policies, practices, and procedures must
be in compliance with the
confidentiality provisions of the Family
Educational Rights and Privacy Act
(FERPA), (20 U.S.C. 1232), its
implementing regulations in 34 CFR
part 99, and IDEA section 618(b)(1); and • Amending current § 300.646(b)(2)
(proposed § 300.646(d)) to define which
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92378 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
populations of children may receive
comprehensive CEIS when an LEA has
been identified with significant
disproportionality. Comprehensive CEIS
may be provided to children from age 3
through grade 12, regardless of whether
they are children with disabilities, and,
as part of implementing comprehensive
CEIS, an LEA must identify and address
the factors contributing to the
significant disproportionality.
These final regulations contain
several significant changes from the
NPRM, including: • A revised § 300.646(d)(1)(ii) to
include additional factors that may
contribute to significant
disproportionality; • A new § 300.646(d)(1)(iii) to clarify
that in implementing comprehensive
CEIS an LEA must address a policy,
practice, or procedure it identifies as
contributing to significant
disproportionality; • A new § 300.646(e) to clarify that
LEAs that serve only children with
disabilities are not required to reserve
IDEA Part B funds for comprehensive
CEIS; • A new § 300.646(f) to make clear
that these regulations do not authorize
a State or an LEA to develop or
implement policies, practices, or
procedures that result in actions that
violate any IDEA requirements,
including requirements related to child
find and ensuring that a free appropriate
public education is available to all
eligible children with disabilities. • A revised § 300.647(a) to include a
definition of comparison group,
minimum n-size, and minimum cell
size; • A revised § 300.647(b)(1) to require
States to set reasonable risk ratio
thresholds, reasonable minimum cell
sizes, reasonable minimum n-sizes, and,
if a State is using the flexibility in
§ 300.647(d)(2), standards for measuring
reasonable progress, all with input from
stakeholders (including their State
Advisory Panels) and subject to the
Department’s oversight. As revised,
§ 300.647(b)(1) also clarifies that a State
may, but is not required to, set these
standards at different levels for each of
the categories described in paragraphs
(b)(3) and (4); • States may delay the inclusion of
children ages three through five in the
review of significant disproportionality
with respect to the identification of
children as children with disabilities,
and with respect to the identification of
children as children with a particular
impairment, until July 1, 2020; • A revision of § 300.647(b)(4) to no
longer require States to calculate the
risk ratio for children with disabilities ages 6 through 21, inside a regular class
more than 40 percent of the day and less
than 79 percent of the day;
• An amendment to § 300.647(b)(5) to
require States to use the alternate risk
ratio when the number of children in
the comparison group fails to meet
either the State’s reasonable minimum
n-sizes or the State’s reasonable
minimum cell sizes; • A new § 300.647(b)(7) requiring
States to report all risk ratio thresholds,
minimum cell sizes, minimum n-sizes,
standards for measuring reasonable
progress, and the rationales for each, to
the Department at a time and in a
manner determined by the Secretary.
Rationales for minimum cell sizes and
minimum n-sizes must include a
detailed explanation of why the
numbers are reasonable and how they
ensure appropriate analysis for
significant disproportionality. • A new § 300.647(c) to clarify that
States are not required to calculate a risk
ratio or alternate risk ratio if the
particular racial or ethnic group being
analyzed does not meet the minimum
n-size or minimum cell size, or in
calculating the alternate risk ratio under
§ 300.647(b)(5), the comparison group in
the State does not meet the minimum
cell size or minimum n-size; and • A revision to proposed
§ 300.647(c)(2)—now § 300.647(d)(2)—
to allow States the flexibility to not
identify an LEA that exceeds a risk ratio
threshold if it makes reasonable
progress under § 300.647(d)(2) in
lowering the applicable risk ratio or
alternate risk ratio in each of two
consecutive prior years. We fully explain these changes in the
Analysis of Comments and Changes
elsewhere in this preamble.
Effective Date of These Regulations
As noted in the Dates section, these
regulations become part of the Code of
Federal Regulations on January 18,
2017. However, States and LEAs are not
required to comply with these
regulations until July 1, 2018, or to
include children ages three through five
in the review of significant
disproportionality with respect both to
the identification of children as children
with disabilities and to the
identification of children as children
with a particular impairment, until July
1, 2020. The Department recognizes the
practical necessity of allowing States
time to plan for implementing these
final regulations, including to the extent
necessary, time to amend the policies
and procedures necessary to comply.
States will need time to develop the
policies and procedures necessary to implement the standard methodology in
§ 300.647 and the revised remedies in
§ 300.646(c) and (d). In particular, States
must consult with their stakeholders
and State Advisory Panels under
§ 300.647(b)(1) to develop reasonable
risk ratio thresholds, reasonable
minimum n-sizes, reasonable minimum
cell sizes, and if a State uses the
flexibility in § 300.647(d)(2), standards
for measuring reasonable progress.
States must also determine which, if
any, of the available flexibilities they
will adopt. To the extent States need to
amend their policies and procedures to
comply with these regulations, States
will also need time to conduct public
hearings, ensure adequate notice of
those hearings and provide an
opportunity for public comment, as
required by § 300.165.
Accordingly, States must implement
the standard methodology under
§ 300.647 in school year (SY) 2018–19.
In doing so, States must identify LEAs
with significant disproportionality
under § 300.647(d)(1) in SY 2018–2019
using, at most, data from the three most
recent school years for which data are
available. We note that, in the case of
discipline, States may be using data
from four school years prior to the
current year, as data from the immediate
preceding school year may not yet be
available at the time the State is making
its determinations (i.e., final discipline
data from SY 2017–2018 may not yet be
available at the time during SY 2018–
2019 the State is calculating risk ratios). In SY 2018–2019, States must
implement the standard methodology
contained in these regulations by
ensuring that the identification of any
LEAs with significant disproportionality
based on race and ethnicity in the
identification, placement, or
disciplinary removal of children with
disabilities, is based on the standard
methodology in § 300.647, and
implements the revised remedies in
accordance with § 300.646(c) and (d). In
the spring of 2020, therefore, States will
report (via IDEA Part B LEA
Maintenance of Effort (MOE) Reduction
and CEIS data collection, OMB Control
No. 1820–0689) whether each LEA was
required to reserve 15 percent of its
IDEA Part B funds for comprehensive
CEIS in SY 2018–19. States may, at their option, accelerate
this timetable by one full year. In other
words, States may implement the
standard methodology in SY 2017–18
and assess LEAs for significant
disproportionality using data from up to
the most recent three consecutive school
years for which data are available. States that choose to implement the
standard methodology in § 300.647 to
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92379 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
identify LEAs with significant
disproportionality in SY 2017–2018
may also require those LEAs to
implement the revised remedies in
accordance with § 300.646(c) and (d).
Similarly, in SY 2017–18, States may
choose to implement the revised
remedies without implementing the
standard methodology.
Whether a State begins compliance in
SY 2017–2018 or 2018–2019, it need not
include children ages three through five
in the review of significant
disproportionality, with respect to both
the identification of children as children
with disabilities and to the
identification of children as children
with a particular impairment, until July
1, 2020. Finally, the delayed compliance date
does not mean that States are excused
from making annual determinations of
significant disproportionality in the
intervening years. States must still make
these determinations in accordance with
the current text of § 300.646. Public Comment: In response to our
invitation in the NPRM, 316 parties
submitted comments on the proposed
regulations. We group major issues
according to subject under these
headings:
I. General Comments Introduction
Glossary of Terms
Terminology
The Department Should Await Congressional Action
Under-Identification of Children With Disabilities by Race and Ethnicity
Recommendations Regarding Technical Assistance and Guidance
Causes of Racial and Ethnic Disparity That Originate Outside of School
Causes of Racial and Ethnic Disparities That Originate in School
Proposed Regulations Would Create Racial Quotas
The Purpose of the Proposed Regulations
The Cost and Burden of the Regulations
Evaluating the Impact of the Regulation
Reporting Requirements
Additional State and Local Standards
Noncompliance With IDEA
General Opposition to the Regulation
Comments on the Racial and Ethnic Disparities Report
Timeline and Effective Date of the Regulation
Appropriate Placement of Children With Disabilities
Special Education, Generally
Results-Driven Accountability
II. A Standard Methodology for Determining Significant Disproportionality
(§ 300.647)
General
Risk Ratios (§ 300.646(b); § 300.647(a)(2); § 300.647(a)(3); § 300.647(b))
Categories of Analysis (§ 300.647(b)(3) and (4))
Risk Ratio Thresholds (§ 300.647(a)(7); § 300.647(b)(1) and(2); § 300.647(b)(6) Minimum Cell Sizes and Minimum
N-Sizes (§ 300.647(a)(3) and (4);
§ 300.647(b)(1)(i)(B) and (C);
§ 300.647(b)(3) and (4); § 300.647(c)(1))
Alternate Risk Ratios (§ 300.647(a)(1); § 300.647(b)(5); § 300.647(c)(2))
Flexibilities—Three Consecutive Years of Data, § 300.647(d)(1)
Flexibilities—Reasonable Progress, § 300.647(d)(2)
III. Clarification that Statutory Remedies Apply to Disciplinary Actions
(§ 300.646(a)(3) and (c))
IV. Clarification of the Review and Revision of Policies, Practices, and Procedures
(§ 300.646(c))
Review of Policies, Practices, and Procedures—Requirements
Guidance
Clarifications
V. Expanding the Scope of Comprehensive Coordinated Early Intervening Services
(§ 300.646(d))
Use of Comprehensive CEIS for Specific Populations
Funding Comprehensive CEIS
Implications for IEPs
Implications for LEA Maintenance of Effort (MOE)
General Uses of Comprehensive CEIS Funds
Implications for Voluntary Implementation of CEIS
Miscellany
Analysis of Comments and Changes:
An analysis of the comments and of any
changes in the regulations since
publication of the NPRM follows.
Generally, we do not address: (a) Minor
changes, including technical changes
made to the language published in the
NPRM; or (b) comments that express
concerns of a general nature about the
U.S. Department of Education
(Department) or other matters that are
not germane.
I. General Comments
Introduction
We provide a glossary as an aid to
reading and understanding the technical
discussions surrounding a standard
methodology for determining significant
disproportionality. Some terms in this
glossary are defined in these final
regulations.
Glossary of Terms
Alternate Risk Ratio means a
calculation performed by dividing the
risk of a particular outcome for children
in one racial or ethnic group within an
LEA by the risk of that outcome for
children in all other racial or ethnic
groups in the State. (§ 300.647(a)). Cell Size means the number of
children experiencing of a particular
outcome, to be used as the numerator
when calculating either the risk for a
particular racial or ethnic group or the
risk for children in all other racial or
ethnic groups. Comparison Group consists of the
children in all other racial or ethnic
groups within an LEA or within the
State, when reviewing a particular racial
or ethnic group within an LEA for
significant disproportionality. N-Size means the number of children
enrolled in an LEA with respect to
identification, and the number of
children with disabilities enrolled in an
LEA with respect to placement and
discipline, to be used as the
denominator when calculating either
the risk for a particular racial or ethnic
group or the risk for children in all other
racial or ethnic groups. Population Requirement means the
minimum number of children required
before a racial or ethnic group within an
LEA will be reviewed for significant
disproportionality, such as a minimum
cell size or minimum n-size. Risk means the likelihood of a
particular outcome (identification,
placement, or disciplinary removal) for
a specified racial or ethnic group (or
groups), calculated by dividing the
number of children from a specified
racial or ethnic group (or groups)
experiencing that outcome by the total
number of children from that racial or
ethnic group (or groups) enrolled in the
LEA. (§ 300.647(a)). Risk Ratio means a calculation
performed by dividing the risk of a
particular outcome for children in one
racial or ethnic group within an LEA by
the risk for children in all other racial
and ethnic groups within the LEA.
(§ 300.647(a)). Risk Ratio Threshold means a
threshold, determined by the State, over
which disproportionality based on race
or ethnicity is significant under
§ 300.646(a) and (b). (§ 300.647(a)). Weighted Risk Ratio means a variation
on the risk ratio in which the risk to
each racial and ethnic group within the
comparison group is multiplied by a
weight that reflects that group’s
proportionate representation within the
State.
Terminology
Comment: None.
Discussion: In the NPRM, the
Department noted that many States have
minimum cell size requirements to
restrict their assessment of significant
disproportionality to include only those
LEAs that have sufficient numbers of
children to generate stable calculations.
The Department further noted that,
while different States use different
definitions of ‘‘minimum cell size,’’ the
most common definition placed a
requirement on the number of children
with disabilities in the racial or ethnic
subgroup being analyzed. This common
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92380 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
1We distinguish ‘‘overrepresentation’’ and
‘‘underrepresentation,’’ which describe disparities
in the relative proportion of a racial or ethnic
subgroup in special education and their relative
proportion in the population, from ‘‘over-
identification’’ and ‘‘under-identification,’’ which
describe the appropriateness of a child’s
identification as a child with a disability.
definition describes the population used
in the denominator when calculating
the risk of placement or disciplinary
removal for a racial or ethnic group.
Based on this information, the
Department used the term ‘‘minimum
cell size’’ in its description of proposed
§ 300.647(b)(3) and (4), in which we
intended to allow States not to apply the
standard methodology when analyzing
for significant disproportionality with
respect to identification when a racial or
ethnic group in an LEA had fewer than
10 children (or, when analyzing for
placement or discipline, when a racial
or ethnic group in an LEA had fewer
than 10 children with disabilities). Put
another way, it was the Department’s
intent to allow States not to apply the
standard methodology when, in
calculating the risk of identification,
placement, or discipline for a racial or
ethnic group, the denominator of the
risk calculation included fewer than 10
children.
In response to the NPRM, many
commenters raised concerns about the
effects of particularly small groups of
children on the calculation of risk for
particular racial or ethnic groups and
the benefits and drawbacks of setting a
minimum number of children for either
the numerator or denominator in the
risk calculation. Upon review of these
comments, the Department determined
that using a single term (i.e., ‘‘minimum
cell size’’) to refer to both of these
requirements would be potentially
confusing. Therefore, in this NFR, the
Department uses the term ‘‘n-size’’ to
refer to the denominator of a risk
calculation and ‘‘cell size’’ to refer to the
numerator of the risk calculation. We
note that this use of terms is different
than what was used in the NPRM, but
we believe this differentiation will
provide the greatest clarity in our
discussion of the requirements of the
final rule.
Consistent with this approach, we
have interpreted comments regarding
the proposed § 300.647(b)(3) and (4),
and comments regarding risk
denominators, to be referring to n-size,
and refer to those comments using that
terminology. Further, we have
interpreted comments regarding risk
numerators to be referring to cell size,
and refer to those comments using that
terminology.
Change: We have revised proposed
§ 300.647 to include definitions for the
terms ‘‘minimum cell size’’ and
‘‘minimum n-size’’ and have utilized
those terms through the regulation to
increase specificity and clarity. The Department Should Await
Congressional Action
Comments: Some commenters argued
that the Department should withdraw
the proposed rule and first allow
Congress to address significant
disproportionality in the next
reauthorization of IDEA. Discussion: The Department has an
obligation to implement and enforce the
requirements of IDEA as they exist
today. While we will work with
Congress to reauthorize IDEA, including
any potential changes to section 618(d),
we must continue to ensure that States
and LEAs are appropriately
implementing the current requirements
to ensure that every child has access to
a free appropriate public education in
the least restrictive environment. As we
have stated in the NPRM, following the
Government Accountability Office
(GAO) report, the Department
conducted its own review of State
approaches, as well as a review of the
extent to which States identified
significant disproportionality.
Additionally, we examined research
related to significant disproportionality
and analyzed data collected under
section 618 of IDEA. The Department’s analysis found
several nationwide examples of
disparity across racial and ethnic
groups. For example in 2012: American
Indian and Alaska Native students were
60 percent more likely to be identified
for an intellectual disability, while
Black children were more than twice as
likely as other groups to be so
identified. Similarly, American Indian
or Alaska Native students were 90
percent more likely, Black students
were 50 percent more likely, and
Hispanic students were 40 percent more
likely to be identified as a student with
a learning disability. In addition, Black
children were more than twice as likely
to be identified with an emotional
disturbance. These national-level data
are troubling, given the number of States
that have not identified any LEAs with
significant disproportionality. As published in the NPRM, in SY
2012–13, only 28 States and the District
of Columbia identified any LEA with
significant disproportionality, and of the
491 LEAs identified, 75 percent were
located in only seven States. Of the
States that identified LEAs with
significant disproportionality, only the
District of Columbia and four States
identified significant disproportionality
in all three categories of analysis—
identification, placement, and in
discipline. In short, these data suggest
that there are likely LEAs that are not,
but should be, identified with significant disproportionality, and thus
that many children in these districts are
not receiving proper services.
The Department’s decision now to
require States to follow a standard
methodology is intended to promote
consistency between States and to help
ensure compliance with IDEA section
618(d). We are adopting the standard
methodology to ensure proper
implementation of the statute and so
that LEAs with significant disparities,
based on race and ethnicity, in
identification, placement and discipline
are appropriately identified; that
significant disproportionality is
appropriately addressed; and that
children with and without disabilities
receive the services they need. Changes: None.
Under-Identification of Children With
Disabilities by Race and Ethnicity Comments: Several commenters
responded to Directed Question #11 and
expressed various concerns about
under-identification. Other commenters
did the same independently of the
question. Several commenters expressed
support for the Department’s efforts to
remediate the problems of
overrepresentation and over-
identification of children with
disabilities based on race and ethnicity.
1
However, other commenters, some
citing research, asserted that the under-
identification of children of color for
special education and related services is
a greater and more serious problem than
their overrepresentation in special
education, and that, by not addressing
the proper problem, the proposed
regulations would allow harm to
children of color to continue. One
commenter stated that lawyers around
the country have noted a systemic
neglect of children of color with
disabilities in education systems, and
another stated that many families have
reported delays in the identification of
disabilities and, in some cases, the
misidentification of disabilities. Still
other commenters shared personal
experiences of under-identification.
Two commenters stated that the
proposed regulations should be
withdrawn and revised to address this
more pressing problem, and one
suggested that the Department withdraw
the regulation in favor of other efforts to
promote the proper implementation of
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child find procedures and the early and
appropriate identification of children
with disabilities.
Discussion: The Department agrees
that when under-identification of
children of color occurs it is
problematic. These children, like all
children with disabilities, are entitled to
a free appropriate public education.
States should ensure that their child
find procedures are robust enough to
appropriately identify all children with
disabilities in a timely manner. The Department’s long-standing
interpretation of IDEA section 618(d)
(20 U.S.C. 1418(d)), has been that it
requires States to address
overrepresentation, not under-
identification or underrepresentation,
consistent with the intent of Congress
when it authorized that provision. (See,
Office of Special Education Programs
(OSEP) Memorandum 08–09 (July 28,
2008)). The basis for congressional action was
largely due to a concern that students of
color were being identified too often for
special education services, and placed
too frequently in segregated settings, in
ways that were detrimental to their
education. There is also an increased
understanding that appropriate
identification and delivery of special
education services would ensure that
students with disabilities have access to,
and an opportunity to fully participate
in, the general education curriculum. We understand that
overrepresentation of one racial or
ethnic group that rises to the level of
significant disproportionality may occur
for a variety of reasons, including over-
identification of that racial or ethnic
group, under-identification of another
racial or ethnic group or groups, or
appropriate identification with higher
prevalence of a disability in a particular
racial or ethnic group. For example, consider an LEA in
which the risk ratio for African
American students with an emotional
disturbance exceeds the State
determined risk ratio threshold and is
identified as having significant
disproportionality. The
overrepresentation of African American
students could be due to: (1) The LEA
inappropriately identifying African
American students as having an
emotional disturbance and needing
special education and related services
even though they do not (over-
identification); (2) the LEA failing to
appropriately identify students in other
racial or ethnic groups as having an
emotional disturbance and needing
special education and related even
though they do (under-identification); or
(3) the LEA appropriately identifying all students in the LEA who have an
emotional disturbance but underlying
variations in the prevalence of those
disabilities across racial and ethnic
groups results in an overrepresentation
of African American students.
We encourage States and LEAs to
consider multiple sources of data when
attempting to determine the factors
contributing to significant
disproportionality, including school
level data, academic achievement data,
relevant environmental data that may be
correlated with the prevalence of a
disability, or other data relevant to the
educational needs and circumstances of
the specific group of students identified. Changes: We have added a new
§ 300.646(d)(1)(iii), requiring an LEA, in
implementing comprehensive CEIS, to
address any policy, practice, or
procedure it identifies as contributing to
significant disproportionality, including
any policy, practice or procedure that
results in a failure to identify, or the
inappropriate identification of, a racial
or ethnic group (or groups). Comments: Several commenters
requested that the Department address
both over-identification and under-
identification based on race and
ethnicity in special education. These
commenters recommended that the
Department require States to report
racial and ethnic disparities in the
identification of children with
disabilities, and children with particular
impairments, due to under-
identification. These commenters also
requested that the Department require
States to provide technical assistance to
LEAs with under-identification, by race
or ethnicity, but not require those LEAs
to implement the statutory remedies
under IDEA section 618(d). Similarly, one commenter asked the
Department to amend proposed
§ 300.646(c)(1) to clarify that, in cases of
significant disproportionality in the
over-identification or the under-
identification of children as children
with disabilities, an LEA must undergo
a review and, if necessary, revision of its
policies, practices, and procedures. One commenter suggested that
addressing both over-identification and
under-identification was particularly
important in the context of autism and
emotional disturbance identification.
The commenter further observed that
these are both areas where recent
research has suggested that girls in
particular are under-identified. A few commenters, however, opposed
any expansion of the proposed
regulations to address under-
identification due to concerns that this
will weaken their ability to address
overrepresentation. One of these commenters stated that, when the
Department previously required States
to address under-identification by race
and ethnicity as part of the State
Performance Plan/Annual Performance
Report (SPP/APR), the result was
confusion among States.
Discussion: As we stated earlier,
while this regulation only establishes a
system for identifying significant
disproportionality based on
overrepresentation, nothing in these
regulations prevents States from
working with their LEAs to ensure
appropriate identification of children
with disabilities and address any
potential under-identification that may
exist. In cases where LEAs find that a
factor contributing to the
overrepresentation of one racial or
ethnic group is the under-identification
of a different racial or ethnic group, the
LEA may use funds reserved for
comprehensive CEIS to address that
under-identification. In particular, we
remind States that, consistent with
IDEA child find requirements, each
State must have policies and procedures
to ensure that all children residing in
the State who are in need of special
education and related services are
identified, located, and evaluated,
regardless of race or ethnicity. We also note that nothing in these
regulations establishes or authorizes the
use of racial or ethnic quotas limiting a
child’s access to special education and
related services, nor do they restrict the
ability of Individualized Education
Program (IEP) Teams or others to
appropriately identify and place
children with disabilities. In fact, an
LEA’s use of quotas to artificially reduce
the number of children who are
identified as having a disability, in an
effort to avoid a finding of significant
disproportionality, would almost
certainly conflict with their obligations
to comply with other Federal statutes,
including civil rights laws governing
equal access to education. States have
an obligation under IDEA both to
identify significant disproportionality,
based on race and ethnicity, in the
identification of children with
disabilities and to ensure that LEAs
implement child find procedures
appropriately and make a free
appropriate public education available
to all eligible children with disabilities.
(20 U.S.C. 1412(a)(1), (3) and (11); 34
CFR 300.101, 300.111, and 300.149). To
clarify that these regulations must be
implemented in a manner that is
consistent with all other requirements of
this part, we have added § 300.646(f) to
make clear that these regulations do not
authorize a State or an LEA to develop
or implement policies, practices, or
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procedures that result in actions that
violate any IDEA requirements,
including requirements related to child
find and ensuring that a free appropriate
public education is available to all
eligible children with disabilities.
Changes: As described above, we have
added a new § 300.646(f). Comment: One commenter
recommended that the Department
address the under-identification of
children with disabilities by supporting
States and LEAs in collecting child-level
data on developmental screenings and
referrals for services to better
understand where child find efforts are
effective. Discussion: We appreciate the
commenter’s proposal to expand
awareness and understanding of child
find implementation, and of the
potential under-identification of
children with disabilities, through better
data collection. The Department is
committed to ensuring that all children
with disabilities are appropriately
identified, evaluated, and provided with
special education services. However, we
believe that any requirement to collect
data regarding developmental
screenings and referrals would be
beyond the scope of IDEA section
618(d), which directs States to collect
and examine data for the purpose of
identifying significant
disproportionality by race and ethnicity.
We believe it is more appropriate to
consider the merits of the commenter’s
proposal separately from regulation. Changes: None.
Comments: Several commenters
requested that the proposed regulations
be withdrawn until there is more
research available regarding under-
identification and over-identification in
special education, including better
information as to whether over-
identification or under-identification is
the more pressing problem. Similarly,
one commenter stated that the
regulations were based on a flawed
understanding of research on racial and
ethnic disparities in special education. One other commenter asserted that
the research that the Department is
using to justify its current regulations to
address significant disproportionality
has been repeatedly identified as having
serious methodological limitations,
including a lack of statistical controls
for known confounds. Discussion: The Department agrees
that there is a continued need for
research to support Federal, State, and
local efforts to address racial and ethnic
disparities in special education, though
we do not agree that the research we
relied upon is flawed. We also agree that
additional research is necessary to continue to examine both over- and
under-representation in special
education, and the Department plans to
direct additional resources to research
these issues. However, we do not agree
that these regulations should be delayed
until further research is conducted
because there is sufficient evidence of
significant disproportionalities going
uninvestigated or unaddressed.
We also agree that some research
suggests that there are children with
disabilities who are not, but should be,
receiving special education services
under IDEA. However, there is a
corresponding body of research that
children of certain races or ethnicities
are disproportionately identified with
disabilities, educated in more restrictive
placements, and disciplined at greater
rates than their peers. We do not believe
that over- and under-representation in
special education based on race or
ethnicity are mutually exclusive. In fact,
it is possible, if not probable, that both
over- and under-representation are
occurring, which is why the
Department’s effort to standardize the
way in which States examine LEAs for
significant disproportionality is
necessary. The Department believes that
§ 300.646(b), which requires States to
apply a standard methodology to
identify significant disproportionality
due to overrepresentation, will help to
build greater knowledge about existing
State practice and the extent of these
disparities and encourage additional
research to investigate their causes and
potential solutions for them. That said,
States are required to ensure that they
are appropriately implementing these
new regulations in conjunction with
appropriate child find procedures.
These regulations should not be used to
exclude children with disabilities from
receiving services under IDEA. Changes: None.
Recommendations Regarding Technical
Assistance and Guidance Comment: A number of commenters
called upon the Department to provide
to States and LEAs technical assistance
and guidance for implementing the
proposed regulations. Some commenters
asserted that the Department should
provide technical assistance to States in
order to ensure that LEAs appropriately
identify children of color, rather than
under-identifying them, to avoid a
designation of significant
disproportionality. In the absence of
sufficient supports for LEAs, the
commenters stated, LEAs may
implement shortcuts so that they appear
to be reducing disparities. These
shortcuts could include under-reporting of disciplinary removals, under-
identifying children of color as children
with disabilities, or referring fewer
children from overrepresented racial or
ethnic groups for special education
services. Similarly, another commenter
stated that the Department could ensure
that LEAs do not under-identify
children with disabilities by supporting
States’ efforts to utilize appropriate cell
sizes, risk ratio thresholds, and
significance testing.
Other commenters recommended that
the Department provide suggestions to
States about evidence-based practices
that may reduce disproportionality and
that the Department tailor technical
assistance to the needs of the agencies
served. One commenter suggested that the
Department provide specific
information on evaluation and
identification of children who may need
special education, the use of schoolwide
approaches such as positive behavioral
interventions and supports, developing
multi-tiered systems of support to
provide intensive services before
referral to special education, and the use
of multi-disciplinary teams of
specialized instructional support
personnel to support children with and
without disabilities. Another
commenter also requested that the
Department provide research-based root
cause analysis tools, targeted to each of
the areas of significant
disproportionality, as well as assistance
with cultural responsive evaluation,
appropriate academic and behavioral
interventions prior to referral for special
education services, and the monitoring
of highly mobile children within a
multi-tiered system of support. One commenter recommended that
the Department provide guidance that
indicates how LEAs can compare the
number of children identified, placed,
or disciplined to the number of children
who should have been identified,
placed, or disciplined and how best to
use risk ratio methods with small
populations. One commenter requested that the
Department provide guidance on,
monitor, and enforce IDEA provisions
governing evaluation procedures and
encourage States to implement school-
age hearing screening programs as part
of their implementation of child find. One commenter recommended that
the Department provide more technical
assistance and guidance on the
importance of health care providers in
helping identify all children with
disabilities. Other commenters suggested that the
Department enhance State capacity to
train and counsel parents about IDEA,
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disability, and the implications when a
child is found eligible for special
education and related services.
Discussion: We agree that supporting
States and LEAs in implementing these
regulations is important. The
Department provides technical
assistance through numerous
investments funded under part D of
IDEA, and it provides easy access to
information from its research to practice
efforts at www.osepideasthatwork.org. In
general, the Department funds technical
assistance centers to work with States
and LEAs to provide a variety of
products and services to support
children with disabilities, teachers,
special education service providers,
policy makers, and parents of children
with disabilities with the
implementation of IDEA requirements,
including those provisions and
activities required to address significant
disproportionality based on race or
ethnicity. We agree with commenters
that there are many distinct but
overlapping provisions under IDEA that
will need to be addressed to help States
and their stakeholders comply with the
requirements of these regulations. The
Department will continue to provide
technical assistance to help States and
stakeholders address significant
disproportionality based on race or
ethnicity. In addition, the Department
plans to identify new Federal resources
to support States’ work to implement
these regulations through the Technical
Assistance and Dissemination network
and Department staff. When these
resources are available, the Department
will work to ensure that States are aware
of Federal technical assistance resources
that can be used to support their
implementation of these regulations. Changes: None.
Comment: One commenter requested
that the Department issue guidance to
States on monitoring and analyzing LEA
placement data with regard to disability
category, gender, ethnicity, and
socioeconomic status to help create
transparency in decision-making that
results in LEA-level disparities. Discussion: We appreciate the
suggestion and will take it into
consideration as we develop guidance
and technical assistance for these
regulations after they are published.
Changes: None.
Causes of Racial and Ethnic Disparity
That Originate Outside of School Comments: Several commenters
stated that the proposed regulations are
based on a flawed assumption, that the
percentage of children of color with
disabilities who receive special
education and related services should reflect the percentage of children of
color in the general population. Other
commenters asserted that one should
expect certain subgroups of children to
be identified with disabilities (or
particular impairments) at higher rates
than others due to the effects of poverty,
concentrated poverty, poor education,
lack of adequate health care parental
incarceration, limited language
proficiency, drug abuse, environmental
toxins, the lack of specialized
instructional support or parent training,
and other factors that (according to the
commenters) increase the risk of
disabilities and the need for special
education services. Others asserted that
achieving proportionality among all
races and ethnicities in special
education is not an appropriate goal,
and that the statistical assumption of
equal rates of identification across all
groups is erroneous.
Discussion: The Department
recognizes that there will be variations
in the proportion of individuals across
racial and ethnic groups who are
identified as children with disabilities.
The purpose of these regulations is not
to artificially force the identification
rate to be equal across all subgroups or
to fit any preconceived proportion. The
regulation does, however, seek to
promote more accurate identification of
LEAs in which disproportionality
between racial and ethnic groups has
become significant and, therefore,
possibly indicative of an underlying
problem in the identification,
placement, or disciplinary removal of
children with disabilities. While various risk factors associated
with poverty may be associated with
greater risk of disability among children,
those factors are by no means
determinative of whether a child should
be identified as a child with a disability
under IDEA. Ideally, children exposed
to these risk factors are screened for
developmental delays, and other
academic and behavioral challenges, so
that their needs may be addressed early
and appropriately. Further, IDEA
requires that the individual needs of
children with disabilities—as opposed
to their exposure to risk—be central to
determining the need for special
education and related services. Changes: None.
Comment: Many commenters stated
that risk factors—such as poverty,
concentrated poverty, poor education,
and lack of access to health care—
contribute to the incidence of disability
and may confound attempts to
effectively examine racial and ethnic
disparity in special education.
Similarly, one commenter suggested
that recent increases in K–12 enrollment, the number of English
Learners, and the prevalence of poverty
may account for increases in the number
of children of color in special education.
In this same context, a few other
commenters warned that a simple
comparison of percentages of
populations must not be taken as
evidence of bias, misidentification, or
racial discrimination by school officials.
Rather, these commenters argued that
approaches such as the risk ratio are
oversimplifications that may lead to the
withdrawal or denial of special
education services to children who need
them. Similarly, another commenter
stated that there are situations where a
risk ratio alone will not provide enough
information to determine whether an
LEA has or does not have significant
disproportionality. Discussion: The Department
understands that there are many
complex factors that may influence the
need for special education services,
placement decisions, and disciplinary
removals, and that schools alone cannot
address all of these factors, particularly
those associated with poverty. The
Department also understands that risk
ratios do not identify the causes of
significant disproportionality. However, risk ratios do identify those
LEAs where there are large racial and
ethnic disparities and, where these are
considered significant, States and LEAs
must review the policies, procedures,
and practices related to identification,
placement, or discipline and, through
the implementation of comprehensive
coordinated early intervening services,
identify and address the causes of these
disparities, as appropriate. Even in
situations where differential exposure to
risk factors contributes to racial
disparities in special education, we
believe that schools may help to
mitigate the effects of these risk factors
by screening children early and by
providing early and appropriate
interventions and supports. Donovan
and Cross, 2002. This is a major purpose
of comprehensive CEIS, and one reason,
as we discuss in the section Expanding
the Scope of Comprehensive
Coordinated Early Intervening Services,
that the Department has expanded the
scope of comprehensive CEIS to include
children ages three through five. Changes: None.
Comments: Many commenters
expressed concern that the Department’s
overall approach to addressing
significant disproportionality, as well as
the standard methodology in
§ 300.647(b), fails to address the
underlying causes of racial and ethnic
disparities. A large number of
commenters noted that there are many
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societal and systemic factors that lead to
disproportionality. These commenters
argued that final regulations should be
postponed until these other societal and
systemic factors, such as access to
mental health care and access to quality
early-childhood education, are
addressed. Another commenter argued
that the issue of significant
disproportionality is beyond the
responsibility of educators and beyond
the scope of their role, and efforts to
identify and address it must take into
account factors such as poverty,
urbanicity, medical care accessibility,
and the presence of schools specifically
for children with disabilities.
One commenter requested that—once
these broad societal and educational
problems are addressed—States only
report on special education indicators
(which we understand the commenter to
mean data showing racial and ethnic
disparities, similar to what was
proposed under § 300.646(b)(3) and (4))
until systems are in place to hold
general education accountable as well.
Similarly, other commenters asserted
that as special education programs
typically have little influence over
general education programs, it will be
difficult to improve services using a
mandate on special education. Discussion: The Department
recognizes that racial and ethnic
disparities in the identification,
placement, and discipline of children
with disabilities can have a wide range
of causes, including systemic issues
well beyond the typical purview of most
LEAs. Again, however, this does not
mean that LEAs, schools, and educators
are wholly incapable of addressing, or
mitigating, any of the causes of
significant disproportionality. In fact,
the Department believes that effective
elementary and secondary education,
with appropriate supports for children
with and without disabilities is essential
to addressing the very issues the
commenters raise. Delaying the
examination of data to make
determinations of significant
disproportionality (and the review and
revision of problematic policies,
practices, and procedures) until these
broader issues are resolved would
overlook both the statutory requirement
that States annually collect and examine
data and strategies currently available to
address these inequities. The commenters’ concerns about
holding general education accountable
suggest a false dichotomy between
special and general education. That is,
LEAs are responsible for providing a
high quality education to every child,
both in general education and special
education. When children are inappropriately identified, placed, or
disciplined on the basis of race or
ethnicity, all parties are, and should be,
held accountable. In fact, this
realization of the benefits of a holistic
approach to addressing the causes of
significant disproportionality led to the
Department’s expansion of
comprehensive CEIS to serve both
children with and without disabilities.
Changes: None.
Comment: One commenter suggested
that the Department develop funding
priorities to examine the connections
between race, culture, socio-economic
status, and disability. Many commenters
noted that additional Federal funds
should be made available to address
disproportionality in special education
and general education programs.
Discussion: Although we view this as
beyond the scope of these regulations,
we appreciate the suggestion. The
Department will take this
recommendation under consideration as
we develop funding priorities for fiscal
years 2017 and 2018.
Changes: None.
Causes of Racial and Ethnic Disparities
That Originate in School Comments: Several commenters
asserted that disproportionality in
special education occurs due to children
not receiving the necessary
interventions early in their academic
career. Disproportionality, according to
the commenters, must be addressed in
the regular educational environment
and earlier in the school process, with
administrators responsible for title I
programs as partners, and cannot be
addressed once children have been
referred for evaluation for special
education.
Discussion: The Department believes
that these regulations address the
commenters’ concerns. Under
§ 300.646(d)(3), LEAs identified with
significant disproportionality may use
funds reserved for comprehensive CEIS
to support the needs of both children
with and without disabilities. Section
300.646(d) requires the State to identify
and address the factors contributing to
the significant disproportionality which
may include a wide range of factors,
some of which were mentioned by
commenters. Moreover, under
§ 300.646(d) the LEA may not limit
comprehensive coordinated early
intervening services to children with
disabilities. To the extent, then, that an
LEA identifies the lack of early
interventions in the general education
program as a factor contributing to the
significant disproportionality, it may
use funds reserved for comprehensive CEIS to provide access to early
interventions.
As to partnering with administrators
of title I programs, we understand the
commenters to suggest that title I funds
should be used in conjunction with
CEIS funds when providing early
intervening services. Title I funds may
be used this way, provided that all of
the requirements attached to the funds
are met. Further, CEIS funds may be
used to carry out services aligned with
activities funded by and carried out
under ESEA, if IDEA funds are used to
supplement, and not supplant, funds
made available under the ESEA for
those activities. Changes: None.
Comments: One commenter noted
that, while research suggests that there
is disproportionate representation of
children of color in special education,
in restrictive special education settings,
and in exclusionary disciplinary
actions, the commenter does not believe
this is the result of discriminatory
practices. The commenter suggested that
the Department should, therefore,
concentrate its efforts on guidance, for
example, on the appropriate
identification of students with
disabilities from diverse backgrounds.
Similarly, another commenter suggested
that instead of focusing on significant
disproportionality, the Department
should reevaluate the causes of
ineffective practices in special
education and focus directly upon
appropriate services for students with
disabilities in special education.
Another commenter made this point
more generally and suggested that the
proposed regulations attempt to solve a
problem that may not exist. Discussion: IDEA section 618(d)(1) (20
U.S.C. 1418(d)(1)) requires States to
provide for the collection and
examination of data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and LEAs of the State. IDEA
section 618(d)(2) (20 U.S.C. 1418(d)(2))
specifies that the review of—and if
appropriate, revision of—policies,
practices, and procedures is a
consequence of, rather than a part of, a
determination of significant
disproportionality. Therefore, the
Department does not have the authority
to relieve States of their responsibility to
determine whether significant
disproportionality is occurring in an
LEA, or require the review of polices,
practices, and procedures, even in the
absence of evidence showing
discriminatory practices. Moreover,
once identified with significant
disproportionality, the LEA’s review of
policies, procedures, and practices and
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92385 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
implementation of comprehensive CEIS
under § 300.646(d) could reasonably
encompass determinations of whether
proper identification practices are in
place or determinations of the
effectiveness of specific services.
Congress intended for States and
LEAs to address significant
disproportionality, by race and
ethnicity, in special education. We
noted in the NPRM various data points
from our IDEA section 618 data, and
using the standard methodology,
indicating that children from certain
racial or ethnic groups are
overrepresented in special education,
particularly in the categories of
emotional disturbance, specific learning
disabilities, and intellectual disabilities.
81 FR 10967. Further, we noted that
some children are overrepresented, by
race and ethnicity, with respect to their
placement in restrictive settings and
with respect to their exposure to
disciplinary removals from placement.
Therefore, we believe that the
Department has both a congressional
mandate and factual support for
proceeding with this rule. Changes: None.
Comment: One commenter asserted
that the proposed regulations did not
address the underlying issues that result
in racial and ethnic disparities in the
identification of children with
disabilities, among them the failure to
strictly follow procedures for child find,
referral for evaluation, the evaluation
itself, and subsequent identification of
children as children with disabilities. Discussion: We disagree and believe
that these regulations are designed to
directly address any underlying factors
and IDEA noncompliance that result in
or contribute to significant
disproportionality. Under § 300.646(c), States must
provide for a review, and, if necessary,
revision of policies, practices, and
procedures to ensure compliance with
IDEA’s requirements if an LEA is
identified as having significant
disproportionality. Under § 300.646(d)(1)(ii), an LEA
identified as having significant
disproportionality must reserve 15
percent of its IDEA part B funds for
comprehensive CEIS, to identify and
address the factors contributing to the
significant disproportionality. If the
underlying cause of significant
disproportionality is found to be rooted
in inappropriate practices, such as a
failure to appropriately implement
evaluation procedures, this provision
would help to identify that issue and
require that the problematic practices be
changed. In addition, addressing the
factors contributing to the significant disproportionality could include
training school personnel on the
appropriate implementation of
evaluation procedures.
Changes: None.
Proposed Regulations Would Create
Racial Quotas Comment: Many commenters asserted
that proposed §§ 300.646(b) and 300.647
would put into place racial quotas that
would interfere with the appropriate
identification of children with
disabilities based purely on the
children’s needs. Commenters raised
concerns that the regulations might
generally discourage appropriate
identification of children of color, and,
in so doing, harm children of color and
children from low-income backgrounds.
One commenter argued that the
regulations will exacerbate inequality
for children of color with disabilities
and lead to a surge in class action
lawsuits by families arbitrarily denied
services based on their children’s race
or ethnicity. Other commenters stated
that, if the determination of significant
disproportionality is based strictly on
numerical data, then the remedy for
significant disproportionality, for some
LEAs, will be denying access to special
education services to children of color.
One commenter suggested that to bias
LEAs against serving eligible children
with special education services is worse
than providing these services to
children who are only marginally
eligible. Discussion: The Department
recognizes the possibility that, in cases
where States select particularly low risk
ratio thresholds, LEAs may have an
incentive to avoid identifying children
from particular racial or ethnic groups
in order to avoid a determination of
significant disproportionality. For this
reason, § 300.647(b)(1) provides States
the flexibility to set their own
reasonable risk ratio thresholds, with
input from stakeholders and State
Advisory Panels. As part of the process
of setting risk ratio thresholds, States
must work with stakeholders to identify
particular risk ratio thresholds that help
States and LEAs to address large racial
and ethnic disparities without
undermining the appropriate
implementation of child find
procedures. Further, nothing in these regulations
establishes or authorizes the use of
racial or ethnic quotas limiting a child’s
access to special education and related
services, nor do they restrict the ability
of IEP Teams to appropriately identify
and place children with disabilities. In
fact, an LEA’s use of racial or ethnic
quotas to artificially reduce the number of children who are identified as having
a disability, or inappropriately
segregating children in LEAs that serve
only children with disabilities, in an
effort to avoid a finding of significant
disproportionality, would almost
certainly conflict with the LEA’s
obligations to comply with other
Federal statutes, including civil rights
laws governing equal access to
education. States have an obligation
under IDEA both to identify significant
disproportionality, based on race and
ethnicity, in the identification of
children with disabilities and to ensure
that LEAs implement child find
procedures appropriately. (20 U.S.C.
1412(a)(3); 34 CFR 300.111). We agree
that the establishment of any such
quotas would almost certainly result in
legal liability under Federal civil rights
laws, including title VI of the Civil
Rights Act of 1964 and the Constitution.
We generally believe that the
appropriate and timely identification of
children with disabilities and the
prevention of significant
disproportionality on the basis of race
and ethnicity are goals that work in
concert with one another. In fact, a
finding of significant disproportionality
could be a signal that an LEA’s child
find procedures are not working
appropriately. One of the goals of
§ 300.646(b) and (c) is to help LEAs
identified with significant
disproportionality to review and if
appropriate, revise policies, practices,
and procedures—including child find
procedures—to ensure compliance with
IDEA.
At the same time, we are interested in
the impact that these regulations may
have on the appropriate identification of
children with disabilities. As a result,
the Department intends to conduct an
evaluation of the implementation of this
regulation to assess its impact, if any, on
how LEAs identify children with
disabilities. This evaluation will include
an examination of the extent to which
school and LEA personnel incorrectly
interpret the risk ratio thresholds and
implement racial quotas in an attempt to
avoid findings of significant
disproportionality by States, contrary to
IDEA.
Changes: As described above, we have
added a new § 300.646(f) to make clear
that these regulations do not authorize
a State or an LEA to develop or
implement policies, practices, or
procedures that result in actions that
violate any IDEA requirements,
including requirements related to child
find and ensuring that a free appropriate
public education is available to all
eligible children with disabilities.
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92386 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
The Purpose of the Proposed
Regulations
Comments: One commenter expressed
concern that the Department’s
discussion of the ability to grant waivers
to States and the content of the NPRM’s
directed questions indicate that the
Department understands that the
proposed regulations do not provide a
solution to disproportionality. Discussion: The NPRM did not
include any discussion regarding
waivers of IDEA section 618(d). 81 FR
10967. As the commenter points out,
IDEA does not include a provision that
would allow either the Department, or
States, to waive the statutory remedies—
including the review and revision of
policies, practices, and procedures and
reservation of funds for comprehensive
CEIS—for LEAs identified with
significant disproportionality. The Department disagrees that the
directed questions in the NPRM were an
indication that the standard
methodology and the flexibilities
included in the NPRM will not
appropriately identify LEAs with
significant disproportionality. Rather,
these questions were a means to gather
informed input from the public about,
among other things, how a standard
methodology (and the accompanying
flexibilities) should be structured to
ensure proper implementation of the
requirements of IDEA section 618(d).
We appreciate the many informed and
thoughtful responses that we received in
public comment and have made several
changes to the final regulations based on
input from the public to improve
comparability and transparency while
providing States and LEAs sufficient
flexibility to appropriately identify and
address significant disproportionality. Changes: None.
Comments: A commenter generally
expressed confidence in their LEAs’
ability to properly determine eligibility
and placement for children with
disabilities and to follow board policy
with regard to the discipline of all
children with disabilities. The
Department interpreted this comment to
suggest that these regulations are not
necessary. Discussion: The Department agrees
with commenters that, in many LEAs,
school personnel and LEA officials
appropriately implement IDEA’s
requirements. However, we interpret
IDEA section 618(d) to require States to
examine data and make determination
whether LEAs have significant
disproportionality, based on race and
ethnicity, irrespective of whether the
practices, procedures, and policies of
the LEA are appropriate and comply with IDEA. Given the remedies that
States and LEAs must implement
following a determination of significant
disproportionality, we believe the
statute anticipates that the significant
disproportionality within the LEA may
be addressed by reviewing, and if
appropriate, modifying policies,
practices, and procedures not in
compliance with IDEA, by providing
children and staff with additional
supports through the implementation of
comprehensive CEIS, or by doing both.
IDEA section 618(d)(2)(A) and (B), 20
U.S.C. 1418(d)(2)(A) and (B).
Changes: None.
Comment: A few commenters
requested assurance that the purpose of
the proposed regulations was more
substantive than a means of identifying
a larger number of LEAs with significant
disproportionality.
Discussion: While it is possible that
more LEAs may be identified with
significant disproportionality as a result
of these regulations, this outcome is a
consequence of, rather than the purpose
of, these regulations. The purpose of
these regulations is to increase
comparability and transparency in the
examination of data and identification
of LEAs with significant
disproportionality across States to
ensure that States are more uniform in
implementing IDEA section 618(d). As
the GAO noted in its 2013 report, the
flexibility States were given to define
significant disproportionality, in the
absence of this regulation, provided ‘‘no
assurance that the problem [was] being
appropriately identified across the
nation.’’ The Department believes that
these revised regulations will improve
implementation of IDEA section 618(d),
build greater knowledge about the
extent of these disparities, and provide
additional opportunities for
stakeholders to understand and shape
how LEAs are identified with significant
disproportionality.
Ultimately, the purpose of the
regulations is to help ensure that LEAs
are appropriately identified with
significant disproportionality, however
many LEAs that may be, so that the
children with disabilities in those LEAs
receive the services that are appropriate
to each of them. Even under a possible
scenario where the first years of
implementing these regulations
increases the number of LEAs with
significant disproportionality, using
comprehensive CEIS to properly address
the contributing factors should also
reduce the number of LEAs with
significant disproportionality in
subsequent years.
Changes: None. Comment:
A number of commenters
noted that ensuring proper
implementation of IDEA section 618(d)
would reinforce existing legal
protections under the Civil Rights Act of
1964, the Americans with Disabilities
Act, title IX of the Education
Amendments Act of 1972, and Section
504 of the Rehabilitation Act.
Discussion: The Department generally
agrees with the commenters that the
proper implementation of IDEA section
618(d) may serve to reinforce and
advance civil rights for all children.
Changes: None.
Comments: None.
Discussion: The Department believes
it would be helpful to States and LEAs
to clearly state that nothing in this rule
supersedes or replaces other applicable
constitutional, statutory, or regulatory
requirements including those related to
ensuring proper implementation of
IDEA requirements for child find, free
appropriate public education (FAPE), or
placement in the least restrictive
environment (LRE). Similarly, this rule
does not abrogate, conflict with, or
identify a specific violation of, any
Federal civil rights protection from
discrimination, including
discrimination based on race, color,
national origin, sex, or disability.
Further, in establishing the
methodology required under this rule
(specifically the use of risk ratios and
risk ratio thresholds to determine
significant disproportionality), the
Department does not intend that this
methodology be presumed to apply or
otherwise occupy the field in other legal
contexts where examination of
numerical data for racial and ethnic
disparities may be relevant, such as
enforcement of Federal civil rights laws.
Changes: We have added a new
§ 300.646(f) to make clear that these
regulations do not authorize a State or
an LEA to develop or implement
policies, practices, or procedures that
result in actions that violate any IDEA
requirements, including requirements
related to child find and ensuring that
a free appropriate public education is
available to all eligible children with
disabilities.
The Cost and Burden of the Regulations
Comment: One commenter
anticipated that the implementation of
the regulations would be more costly
and time intensive than the estimates in
the NPRM due to the costs associated
with changes to data analysis protocols,
documentation and technical assistance
to data personnel to assure accurate
implementation, and communication
with schools and communities.
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Discussion: The Department
appreciates the commenter’s concern
and agrees that the initial time estimates
to implement the regulation were too
conservative. We agree that accurate and
high-quality data are necessary to
ensure appropriate implementation of
the regulation. Changes: We have increased the time
estimates for modified data collection
protocols, technical assistance activities,
and communication required for
implementation and increased the cost
estimates for these regulations. In
addition, the Department increased the
estimated costs associated with
consulting with State Advisory Panels
to account for the additional time that
will now be required for States to
identify reasonable minimum n-sizes,
reasonable minimum cell sizes, and
standards for reasonable progress. Comment: A few commenters
expressed concerns about the amount of
staff time that will be needed to
implement the regulations. These
commenters argued that some States
simply do not have the staff the
Department suggests are needed, and
that there are no additional funds being
made available to States for the increase
in workload, including workload
required to collect and analyze data.
One of these commenters therefore
recommended that the regulations be
withdrawn until adequate funding is
provided to support the additional State
personnel needed to implement the
regulations. Another commenter
recommended that the Department work
with those States or entities with
limited staff support to help them
implement the requirements of the
proposed regulations. The commenter
further argued that, in the past, States
and entities could rely on the Regional
Resource Centers (RRCs) to assist them
in meeting their responsibilities under
IDEA. With the elimination of the RRCs,
the commenter suggested that some of
the currently funded data technical
assistance centers be tasked with
making staff members available to
support the States and other entities to
undertake this work. One commenter
asserted that if the State’s offices
responsible for special education
oversight are required to monitor action
plans to address significant
disproportionality, then these new
responsibilities will dilute the State’s
other monitoring responsibilities. Discussion: While we recognize that
States vary widely both in their staffing
and financial resources, all States that
receive funds under Part B of IDEA must
meet the requirements of that Act,
including those outlined in IDEA
section 618(d), regardless of the funding provided under the Act. Therefore, the
Department disagrees with commenters
who requested that the Department
delay the implementation of the
regulations until adequate funding is
provided to support additional State
personnel for both this and other
requirements of the Act.
However, the Department recognizes
that there is burden associated with
implementing these final regulations,
and States will need varying levels of
support to appropriately implement
these regulations. Therefore, the
Department plans to identify Federal
resources to support States’ work
through the Technical Assistance and
Dissemination network and Department
staff. When these resources are
available, the Department will work to
ensure that States are aware of Federal
technical assistance resources that can
be used to support their implementation
of these new regulations. Changes: None.
Comments: Some commenters
requested that the Department clarify
whether the examples contained in the
report in the NPRM, Racial and Ethnic
Disparities in Special Education, were
intended to be illustrative or were
intended to be duplicated by States or
LEAs in setting risk ratios. Other
commenters stated that the regulations
would cost large amounts of money,
both up front and over time, based on
the Department’s report published with
the NPRM, Racial and Ethnic Disparities
in Special Education. One commenter
stated that the actual cost of the
regulation would be $12 billion, as,
according to the commenter, the
Department estimated that 8,148 LEAs
could be found with significant
disproportionality. The commenter
stated that, as the Department
recommended no increase in the
Federal budget for special education,
the overall result of the regulation
would be a reduction in Federal funding
for special education. Another
commenter stated that the methodology
used in the Department’s report would
mean a five-fold increase in the number
of LEAs identified in one State, which
exceeds the State’s capacity to address
through a review of policies, practices,
and procedures and through technical
assistance. Several commenters offered other
projections of the number of LEAs that
would be identified with significant
disproportionality due to these
regulations. In general, commenters
provided projections based on either the
Department’s report—Racial and Ethnic
Disparities in Special Education—or a
projected number of false-positive
identifications of LEAs due to small numbers. According to many of these
commenters, over 80 percent of LEAs in
one State would be identified with
significant disproportionality and
would have to transfer tens of millions
of dollars away from supporting
children with disabilities. We
understand this concern to reference the
mandatory reservation of funds for
comprehensive CEIS by LEAs that are
identified with significant
disproportionality. Similarly, another
commenter stated that Department
projects that 23 States will require 50–
80 percent of all LEAs to set aside 15
percent of their Federal share for
comprehensive CEIS, a redirection of
some $550 million away from direct
services for special education.
Discussion: The Department’s purpose
in creating the Racial and Ethnic
Disparities in Special Education report
was to provide the public the number
and percentage of LEAs that would be
identified with significant
disproportionality if the Department’s
example risk ratio thresholds were
adopted by all 50 States and the District
of Columbia. We did not intend the
tables to be indicative of the actual
numbers of LEAs that would be
identified with significant
disproportionality under the proposed
regulations, although we can
understand how the commenters read
the report this way. The tables do not
represent an estimated number of LEAs
that would be identified under the final
regulations, and the risk ratio thresholds
included in those tables do not
represent the risk ratios thresholds that
States must adopt or the standard that
the Department will use to determine
whether or not specific risk ratio
thresholds are reasonable. Under final
§ 300.647, States retain the flexibility to
set reasonable risk ratio thresholds in
excess of those identified in the table
without necessarily being subject to
enforcement actions. Further, as
described in greater detail elsewhere,
these final regulations provide States
with additional flexibilities that were
not included in the proposed
regulations to set reasonable minimum
n-sizes and minimum cell sizes, both of
which we expect would reduce the
number of LEAs included in the
analyses and the number of so-called
‘‘false positives’’ (e.g., LEAs identified
due to small changes in the student
population that result in large changes
in the risk ratio that do not represent
any systemic problems giving rise to
significant disproportionality). As such,
we do not believe that the tables in the
Department’s report reflect the actual
number of LEAs that will be identified
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as having significant disproportionality
under these final regulations.
The Department therefore does not
agree with the cost estimates produced
by commenters who used the report as
a basis for estimating costs or the
number of LEAs that will be identified
with significant disproportionality. Changes: None.
Comment: A few commenters
challenged the Department’s estimate in
the Regulatory Impact Analysis of the
NPRM of how many LEAs would be
identified with significant
disproportionality, stating that the
regulation would significantly increase
the number of LEAs identified with
significant disproportionality. One
commenter noted that the Department
provided little explanation for its
estimates that 400 to 1,200 LEAs could
be affected by the regulations. Discussion: As stated in the NPRM,
the Department does not know with a
high degree of certainty how many LEAs
would be newly identified in future
years, particularly given the wide
flexibilities provided to States in the
final regulations. To address this
uncertainty, the Department used SY
2012–13 IDEA section 618 data, in
which States identified 449 out of
approximately 16,000 LEAs as having
significant disproportionality. Using
that year’s data as a baseline, the
Department’s estimates were based on
the overall number of LEAs identified
with significant disproportionality
roughly doubling under the proposed
regulations. However, to fully examine
the sensitivity of our analysis to this
estimate, we also included estimates for
the number of identified LEAs tripling
and quadrupling over the baseline. As
discussed in the NPRM, we believe it
would be highly unlikely that such an
increase would be realized. Changes: None.
Comment: One commenter expressed
that, if only 400 LEAs would be
impacted, there is little need for the
regulation. Discussion: We disagree with the
commenter’s assertion that the
likelihood that a small number of LEAs
will be affected should determine the
appropriateness of regulatory action.
Under IDEA, each and every child with
a disability is entitled to a free
appropriate public education in the
least restrictive environment. If the
regulations can help to identify and
address racial disparities in special
education—which may result from
inappropriate identification, placement,
and discipline of children with
disabilities—regulatory action is fully
warranted. Changes: None. Evaluating the Impact of the Regulation
Comment: One commenter requested
that the Department withdraw the
proposed regulations due to concerns
that they do not include sufficient detail
to allow the public to provide informed
comments. In particular, the commenter
expressed concern that the proposed
regulations do not include any national
standard, criteria, benchmarks, or goals
upon which to gauge State compliance
with them. The Department interprets
these comments to refer to the impact of
the proposed standard methodology. Discussion: In its 2013 audit, the GAO
noted that the wide variability in States’
approaches to identifying significant
disproportionality made it difficult to
determine the extent of significant
disproportionality across the Nation, or
the extent to which it is being
addressed. The Department agrees with
the GAO’s assessment, and believes
States’ current implementation of IDEA
section 618(d)—with only 28 States and
the District of Columbia identifying any
significant disproportionality—would
not provide an appropriate baseline
from which to establish benchmarks or
goals for the reduction of significant
disproportionality. The Department’s goal in issuing
these regulations, as discussed in the
NPRM, is to ensure the appropriate
review of data and examination for
significant disproportionality, and to
help States and LEAs address and
reduce significant disproportionality. To
accomplish this goal, as well as
facilitate a better understanding of the
extent of significant disproportionality
across the Nation, the Department did
not propose to decide for States the
point at which specific racial or ethnic
overrepresentation becomes significant
disproportionality; rather, the
Department proposed to require States
to follow a standard methodology, with
flexibility to account for State
differences, consistent with the GAO’s
2013 recommendation. Further, a key
area of flexibility, under
§ 300.647(b)(1)(i), allows States to set
reasonable risk ratio thresholds, with
input from stakeholders and State
Advisory Panels, under
§ 300.647(b)(1)(i), subject to the
Department’s review and enforcement
for reasonableness. As the risk ratio
threshold is the point at which an LEA
is determined to have significant
disproportionality, this aspect of the
standard methodology has a strong
impact on the total cost. Accordingly,
the Department’s proposal to allow
States to select reasonable risk ratio
thresholds means that, to a great extent,
the final impact of these regulations will be determined by the States themselves.
This relationship between the flexibility
afforded to States, and the Department’s
estimates of the costs of the regulation,
were explained in the NPRM. The
Department continues to believe that
allowing States the flexibility to set
reasonable risk ratio thresholds is
necessary to account for differences
between States, despite the fact that
Department-established risk ratio
thresholds would allow for a more
precise assessment of the costs of the
regulation.
Changes: None.
Comment: Several commenters
responded to Directed Question #13 in
the NPRM, which requested suggestions
for the metrics the Department should
establish to assess the regulations once
they are final. We received a variety of
responses. One commenter suggested that the
regulations be measured by whether
they reduce or eliminate the number of
States and LEAs with significant
disproportionality. A different
commenter, by contrast, suggested that
measures focus on children, not LEAs
and suggested that the Department give
consideration to the number of children
attending LEAs identified with
significant disproportionality and the
proportion of all children that
represents. Another made a similar
suggestion, that the Department should
compare proportions of children with
disabilities identified, placed, and
disciplined over three years—within an
LEA and across LEAs with comparable
demographics—to determine, first,
whether there is a decrease in
significant disproportionality over the
years within LEAs and, second, if trends
in significant disproportionality are
similar across LEAs with comparable
demographics. Still another suggested
that the Department monitor metrics
that focus on the placement of children
with particular impairments—
specifically, children with autism,
emotional disturbance, or intellectual
disability—outside of the regular
classroom. The commenter argued that
a child’s disability should not be the
determining factor for where the child
spends the school day. Last, a few
commenters recommended that the
Department assess the regulation’s
impact on the appropriate
identification, placement, and
discipline of children with disabilities;
increases in placement in the regular
classroom for children of color with
disabilities; increases in access to the
general curriculum for children of color
with disabilities; and movement of
children of color from restrictive
settings to placement in the regular
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classroom 80 percent or more of the
school day.
A few commenters suggested that the
Department use monitoring metrics that
include State baseline and progress data
but insisted that these data not be used
in any ranking or accountability ratings.
Another commenter suggested that the
Department monitor baseline and
progress data that integrate IDEA
results-driven accountability measures
with measures from Federal elementary
and secondary, as well as career and
technical, education programs. Another
commenter recommended that metrics
used to assess the regulation include
academic, social, and emotional
outcomes. Finally, a few other commenters
interpreted the question broadly,
perhaps more broadly than intended.
One commenter suggested that the
Department develop self-assessments for
States, similar to what the Department
previously provided for dispute
resolution and correctional education.
Another commenter suggested the
Department measure impact by
monitoring and enforcing the
requirement in proposed
§ 300.647(b)(1)(i), which requires States
to use advice from stakeholders. Discussion: The Department
appreciates the comments we received
addressing what metrics should be
established to assess these regulations
once they become final, and will take
them all into consideration. Further, as
States take the steps necessary to
implement the regulations, we will be in
a better position to determine what
evaluation metrics, monitoring, and
technical assistance, will be most
meaningful and appropriate. Changes: None.
Reporting Requirements Comment: A few commenters
generally opposed any attempt by the
Department to require States to take on
additional reporting burden. Discussion: We recognize the
commenters’ concern about reporting
burden. Under IDEA section 618(d) (20
U.S.C. 1418(d)), States are required to
collect and examine data to determine
whether significant disproportionality
based on race and ethnicity is occurring
in the State and the LEAs of the State.
Prior to these regulations, the
Department clarified in guidance the
specific data that States must collect
and review with respect to the
identification of children as children
with disabilities, including the
identification of children with
particular impairments, placement and
disciplinary removals. OSEP
Memorandum 08–09 (July 28, 2008). The Department made a concerted
effort, both in our prior guidance and in
these final regulations, to ensure that
States were only required to collect and
examine data that they, and their LEAs,
are otherwise obligated to collect and
report to the Department and the public
under IDEA section 618(a) (20 U.S.C.
1418(a)). We have added a new
§ 300.647(b)(7) requiring States to report
all risk ratio thresholds, minimum cell
sizes, minimum n-sizes, standards for
measuring reasonable progress and the
rationales for each to the Department.
Prior to the development of a new data
collection to be submitted to the
Department at a time and in a manner
determined by the Secretary, the
EMAPS User Guide: State Supplemental
Survey—IDEA
will be revised to clarify
what specific information States should
include within their definition of
significant disproportionality. The
updated survey instructions will be
released in February of 2017. The
Department is sensitive to the reporting
burdens upon States, but believes that
the additional reporting requirements
created by this regulation will be
minimal as States are required to select
risk ratio thresholds, minimum cell
sizes, and minimum n-sizes, and States
will have sufficient time to prepare
before that information is required. We
also believe that this information will
help the Department analyze the impact
of this regulation. As noted in the
regulation, this information will be
collected in a time and manner
determined by the Secretary and will
not be collected until an information
collection request has been completed. Changes: We have added a new
§ 300.647(b)(7) requiring States to report
all risk ratio thresholds, minimum cell
sizes, minimum n-sizes, standards for
measuring reasonable progress, and the
rationales for each to the Department at
a time and in a manner determined by
the Secretary. We are currently revising
the EMAPS User Guide: State
Supplemental Survey—IDEA to clarify
what specific information States should
include within their definition of
significant disproportionality. These
include requests of States to include
information on risk ratio thresholds and
minimum cell and n-sizes. The revised
survey instructions will publish in
February 2017. States will then submit
SY 15–16 data. Comments: Commenters requested
that States each be required to submit a
long-term plan to the Department for
addressing significant
disproportionality that includes how
they will implement the new
regulations and provide support to
LEAs. Discussion:
The Department
recognizes the value of States having
long-term plans to reduce significant
disproportionality. Indeed, we believe
such an approach, including the setting
of appropriate risk ratio thresholds,
minimum n-sizes, and minimum cell
sizes, can serve to help States identify
the most pressing issues facing their
students and provide adequate support
to LEAs as they work to reduce
significant disproportionalities. In addition, we note that to the extent
that implementation of these
regulations, including establishing
reasonable risk ratio thresholds, cell
sizes, n-sizes and a measure for
reasonable progress, would require
changes to a State’s policies and
procedures, under § 300.165, States
must conduct public hearings, ensure
adequate notice of those hearings, and
provide an opportunity for public
comment. We would expect that States,
in consulting with stakeholders,
including their State Advisory Panels,
would engage in planning to ensure the
best results for their students. However,
we believe that requiring States to report
these plans to the Department would
place an unnecessary burden upon
them. As such, we decline to require
this reporting. Changes: None.
Comments: A few commenters
suggested that the Department add a
requirement for States to publicly report
risk ratios, including LEA-level risk
ratios, regarding placement, noting that
they are rarely reported and that LEAs
are rarely aware of their own
performance. One commenter requested
that the Department require States to
publish LEA-wide data on suspensions
of children of color with disabilities. Discussion: Under IDEA section
618(a)(3) (20 U.S.C. 1418(a)(3)), the
Department has broad authority to
require States to collect, and report to
the Department and the public, data and
information related to Part B of IDEA. In
general, the Department does not
exercise this authority by including
specific reporting requirements in
regulations. Rather, the Department
issues an information collection request,
which is subject to public comment, to
specify the data States must collect and
report. Under the Department’s current
information collection (OMB Control
No. 1875–0240), States are required to
submit counts of children with
disabilities, by race, who are (1)
identified with a particular impairment,
(2) placed in particular educational
settings, and (3) subjected to
disciplinary removals. We agree with
the commenters’ suggestion that all of
the risk ratios and alternate risk ratios
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the States calculate for their LEAs
should be made public. This increased
transparency allows States, LEAs, and
stakeholders alike to monitor significant
disproportionality and reinforces the
review and revision of risk ratio
thresholds, cell sizes, and n-sizes as an
iterative public process within each
State. The Department therefore
anticipates that all risk ratios and
alternative risk ratios will be made
public but has not yet determined the
precise time and manner for this to
occur. We anticipate doing so through
an information collection request,
through the Department’s own
publication of these data, or some
combination of the two.
Changes: None.
Comments: A few commenters
suggested that the Department add a
requirement for States to publicly report
risk ratios calculated to determine
disproportionate representation, under
IDEA section 612(a)(24). Discussion: These regulations pertain
only to IDEA section 618(d) (20 U.S.C.
1418(d)), which outlines the obligation
of each State to collect and examine
data to determine if significant
disproportionality, based on race or
ethnicity, is occurring in the State and
LEAs of the State with respect to the
identification, placement, or discipline
of children with disabilities. A different
provision of IDEA—section 612(a)(24)
(20 U.S.C. 1412(a)(24)—requires States,
consistent with the purposes of IDEA
and IDEA section 618(d), to develop
policies and procedures designed to
prevent the inappropriate over-
identification or disproportionate
representation by race and ethnicity of
children as children with disabilities,
including children with disabilities
with a particular impairment. Under
Indicators 9 and 10 of the Part B State
Performance Plan/Annual Performance
Report (SPP/APR), consistent with
section 616(a)(3)(C) (20 U.S.C.
1416(a)(3)(C)), States are required to
report the percent of districts with
disproportionate representation of racial
and ethnic groups in special education
and in specific disability categories that
is the result of inappropriate
identification. It would be outside the
scope of these regulations to prescribe
how States collect, calculate, or report
data regarding the identification of LEAs
with disproportionate representation
due to inappropriate identification. Changes: None.
Comments: One commenter requested
that the Department require States to
report data on all children who are deaf
and hard of hearing, regardless of
whether another disability is considered
the child’s primary disability, in its IDEA section 618 data collection. The
commenter stated that up to 55 percent
of deaf and hard of hearing children are
reported to have an additional
disability. The commenter believed that,
if they are counted in the category of
their additional disability, but not in the
category of hearing impairment, data on
the number of deaf and hard of hearing
children is incomplete or inaccurate.
Discussion: The Department
appreciates the commenter’s concern
that if children who are deaf or hard of
hearing are not counted in the categories
of deafness or hearing impairment, but
are counted in the another category that
is considered the child’s ‘‘primary
disability,’’ the State’s section 618 data
on the number of deaf and hard of
hearing children is incomplete or
inaccurate. The commenter’s suggestion
that the Department change the section
618 data collection for children who are
deaf or hard of hearing is outside the
scope of this regulation. We also note
that children who are deaf or hard of
hearing are not included as a category
of analysis under § 300.647(b)(3).
Therefore, States are not required to
determine if significant
disproportionality is occurring with
respect to the identification of children
who are deaf or hard of hearing. Changes: None.
Comments: A few commenters
requested that the Department require
States to annually report additional
discipline data—suspensions of one day
or more disaggregated by impairment,
race and ethnicity, gender, and English
language proficiency—to the public.
These commenters suggested that this
data would help address the problem
that children identified with deafness,
blindness, or traumatic brain injury are
often disciplined due to improper
school discipline policies or inadequate
staff training. One commenter stated that, under
IDEA section 618(a)(1), while States are
already required to do this reporting, as
of 2013, only 16 States had reported any
discipline data for children with
disabilities, and only 1 State provided
the disaggregated data as required by
Statute. The commenter requested that
the Department reinforce for the States
that compliance with the public
reporting requirements of IDEA will be
reviewed by the Secretary and could
influence the Department’s
determination of whether risk ratio
thresholds are reasonable. Discussion: The Department declines
to require States to annually report
additional discipline data under IDEA
section 618(a) through these regulations.
Further, in the exercise of our
responsibilities to ensure compliance with IDEA, the Department annually
reviews each State’s SPP/APR, in which
each State reports to the Secretary on
the performance of the State and makes
an annual determination of the State’s
performance under section 616(d) of
IDEA (20 U.S.C. 1416(d)). The
Department considers the timeliness
and accuracy of data reported by the
State under section 618 of IDEA, when
making annual determinations for each
State under IDEA section 616(d) (20
U.S.C. 1416(d)). The Department would
typically address noncompliance with
section 618(a) reporting requirements
through this process and, as such, we
decline to address them as part of this
regulation.
Further, States’ compliance with the
requirement to report to the Department
under IDEA section 618(a) is a separate
issue from the State’s compliance with
the requirement to establish reasonable
risk ratio thresholds under § 300.647 of
the final regulation, which implements
IDEA section 618(d). For this reason, we
decline the commenters’ request to
consider States’ reporting under section
618(a) in the Department’s review of the
reasonableness of States’ risk ratio
thresholds. Changes: None.
Comments: One commenter requested
that the Department eliminate SPP/APR
Indicators 4 (rates of suspension and
expulsion), 9 (disproportionate
representation in special education
resulting from inappropriate
identification), and 10 (disproportionate
representation in specific disability
categories resulting from inappropriate
identification). The commenter asserted
that the standard methodology will
require States to duplicate analyses of
the same data, albeit with varying
definitions, and to report it twice. Discussion: We are sensitive to
concerns about duplicative reporting
requirements and seek to reduce them
wherever possible. However, multiple
distinct provisions of IDEA require
States to analyze similar data sets to
identify LEAs where racial or ethnic
disparities exist. These provisions
include IDEA sections 612(a)(24) and
616(a)(3)(C) (20 U.S.C. 1412(a)(24) and
1416(a)(3)(C)), under which States must
identify LEAs with disproportionate
representation that is the result of
inappropriate identification; IDEA
section 612(a)(22) (20 U.S.C.
1412(a)(22)), under which States must
identify LEAs that have a significant
discrepancy in the rate of long-term
suspensions and expulsions; and IDEA
section 618(d), which is the focus of
these regulations. While the Department
acknowledges that these provisions may
require States to use similar data (i.e.,
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identification and discipline data
disaggregated by race and ethnicity), the
data analysis required to identify LEAs
with disproportionate representation, a
significant discrepancy, and significant
disproportionality is different. As States
have an obligation under IDEA to
comply with each of these provisions,
we believe it is appropriate for the
Department to monitor their
implementation separately.
Further, the Department does not
have flexibility to eliminate Indicators 9
and 10 of the SPP/APR—under which
States report their implementation of
IDEA section 612(a)(24)—as States are
explicitly required to submit this
information under IDEA section
616(a)(3)(C) (20 U.S.C. 1416(a)(3)(C)). Changes: None.
Additional State and Local Standards Comments: One commenter requested
that the Department set State and local
standards, as well as national standards,
for identifying and addressing
significant disproportionality. Discussion: To the extent that the
commenter means that the Department
should, in addition to the standard
methodology, require States and LEAs
to adopt additional standards for
identifying significant
disproportionality, we believe this is
unnecessary. The standard methodology
in § 300.647 implements the
requirement in IDEA section 618(d) (20
U.S.C. 1416(d)) that each State annually
collect and examine data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State with
respect to the identification, placement,
and discipline of children with
disabilities. Section 300.647 sets
common parameters for analysis, which
each State must use to determine
whether significant disproportionality is
occurring at the State and local level. As
such, there is no need for the
Department to set any separate State or
local standards. To the extent that the commenter
means that the Department should set
State and local standards for addressing
significant disproportionality once it is
identified in LEAs, we believe that this
is not the best approach given the
potential variability in the needs of
students with and without disabilities
in the various States and LEAs and that
further prescribing the ways that States
and LEAs must respond to significant
disproportionality is unnecessary at this
time and in these regulations. IDEA section 618(d)(2)(B) (20 U.S.C.
1418(d)(2)(B), requires LEAs identified
with significant disproportionality to
reserve 15 percent of their IDEA Part B funds for comprehensive CEIS. The
Department believes that the specifics of
how those funds are to be used to
address the underlying factors is best
left to State and local officials. The
Department notes that IDEA section
613(f) (20 U.S.C. 1413(f)) already sets
out examples of the kinds of activities
that may be funded. Section 300.646(d)
of these regulations does the same and
adds, in § 300.646(d)(1)(ii), that
comprehensive CEIS must be directed to
identifying and addressing the factors
contributing to the significant
disproportionality in the LEA.
Regulations specifically prescribing how
this is to be done cannot possibly
address the myriad circumstances and
needs that local officials will encounter
when determining how best to provide
comprehensive CEIS.
Changes: None.
Noncompliance With IDEA Comments: One commenter requested
that the Department not consider a
finding of significant disproportionality
as a finding of noncompliance with
IDEA which, as explained in OSEP
Memorandum 09–02 (October 17, 2008),
would require correction at the
individual and systems levels within
one year of the finding. IDEA sections
616 and 642 (20 U.S.C. 1416 and 20
U.S.C. 1442). The commenter stated that
a finding of significant
disproportionality is merely an
indication that policies, practices, and
procedures warrant further attention
due to the number of children of a race
or ethnicity that have been identified,
placed, or disciplined, as opposed to an
indication that the LEA has taken
inappropriate action. Further, the
commenter, along with one other,
argued that a State would not be able to
enforce the correction of non-
compliance for individual children
affected by disproportionality with
respect to identification or placement,
as these are IEP Team decisions. Discussion: The Department generally
agrees with the commenters’ description
of a finding of significant
disproportionality. An LEA found to
have significant disproportionality is
not necessarily out of compliance with
IDEA; rather, as the commenter
indicated, the significant
disproportionality is, among other
things, an indication that the policies,
practices, and procedures in the LEA
may warrant further attention. If an LEA is identified with significant
disproportionality, the State must
provide for review and, if appropriate,
revision of policies, practices, and
procedures used in identification or
placement in particular education settings, including disciplinary
removals, to ensure they comply with
the requirements of IDEA.
If the State identifies noncompliance
with a requirement of IDEA through this
review, then under § 300.600(e), the
State must ensure that the
noncompliance is corrected as soon as
possible, and in no case later than one
year after the State’s identification of the
noncompliance. When verifying the
correction of identified noncompliance,
the State must ensure that the LEA has
corrected each individual case of
noncompliance, unless the child is no
longer within the jurisdiction of the
LEA and the State determines that the
LEA is correctly implementing the
specific regulatory requirement(s) based
on a review of updated data such as data
subsequently collected through on-site
monitoring or a State data system, as
explained in OSEP Memorandum 09–
02, dated October 17, 2008. Changes: None.
General Opposition to the Regulation Commenters: A number of
commenters expressed general
opposition to the proposed regulations,
which they understood to cut special
education funding. A few commenters
expressed general opposition to the
Department’s proposed regulations as a
whole, without further clarification. Discussion: Final §§ 300.646 and
300.647 do not change the level of
funding under IDEA provided to States
or their LEAs. To the extent that these
commenters are referring to the required
reservation of funds to provide
comprehensive CEIS, we note that IDEA
section 618(d)(2)(B) (20 U.S.C.
1418(d)(2)(B)) makes the reservation
mandatory upon a finding of significant
disproportionality in an LEA. The
Department does not have the authority
to alter this statutory requirement. As to
the commenters who express general
opposition, we set out throughout this
document our reasons for proceeding
with these regulations. Changes: None.
Comments on the Racial and Ethnic
Disparities Report Changes: None.
Comments: A few commenters
expressed concern that they were
unable to reproduce the example risk
ratio thresholds or verify the
calculations published in the
Department’s report, Racial and Ethnic
Disparities in Special Education. Other
commenters requested that we publish
the business rules associated with the
report. Discussion: We apologize for any
concern or confusion the report may
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have caused. We attempted to include
the necessary details and explanations
with the report, which we believe are
responsive to the request for business
rules. It was, however, not necessary,
nor was it our intent, for States to
reproduce the risk ratio thresholds or
minimum n-size used in the report. The
Department did not intend for States to
adopt the risk ratios or minimum n-size
in the report (referred to as ‘‘cell size’’
in the NPRM and the report), and the
report did not account for the
flexibilities provided in the regulations.
Rather, the purpose of including the
report was to provide the public with a
set of tables showing the number and
percentage of LEAs that would be
identified with significant
disproportionality if the Department’s
example risk ratio thresholds and
minimum n-size were adopted by all 50
States and the District of Columbia.
Changes: None.
Timeline and Effective Date of the
Regulation Comment: A number of commenters
expressed concerns about the timeline
for the implementation of the new
regulations. One commenter stated that,
if the regulations go into effect
immediately, it would be costly to
require States to retroactively
implement the standard methodology,
determine significant
disproportionality, and notify LEAs.
The commenter added that this timeline
would present a challenge for States that
have already made their significant
disproportionality determinations for
the next year. The commenter
concluded by recommending a phase-in
period for the implementation of the
new standard methodology and the
consequences for LEAs.
Similarly, another commenter stated
that the Department should first run a
pilot year in selected States. This, the
commenter said, would allow States to
prepare new personnel to implement
the regulations (as, according to the
commenter, there has been personnel
turnover since the last regulation of
IDEA section 618(d)); provide the
Department with additional time to
prepare comprehensive guidance and
technical assistance; provide the
Department an opportunity to determine
whether these regulations are likely to
address racial and ethnic disparities;
and support more accurate and
complete national data, due to the
availability of stronger guidance.
Finally, other commenters requested
that the Department give States and
LEAs additional time to understand the
new standard methodology and proactively make efforts to address
racial and ethnic disparities.
Discussion: The Department agrees
that additional time is needed to
implement these regulations. With time
for compliance delayed, we believe
there is no need for a phase-in year or
a pilot year in selected States. These regulations become part of the
Code of Federal Regulations on January
18, 2017. However, States and LEAs will
not be required to comply with these
regulations until July 1, 2018, and, in
the case of § 300.647(b)(3)(iii), States
may delay including children ages three
through five in the review of significant
disproportionality with respect both to
the identification of children as children
with disabilities and to the
identification of children as children
with a particular impairment, until July
1, 2020. The Department recognizes the
practical necessity of allowing States
time to plan for implementation of these
final regulations, including time to
amend the policies and procedures
necessary for compliance. States will
need time to develop the policies and
procedures necessary to implement the
standard methodology in § 300.647 and
the revised remedies in § 300.646(c) and
(d). In particular, States must consult
with their stakeholders and State
Advisory Panels under § 300.647(b)(1)
to develop reasonable risk ratio
thresholds, a reasonable minimum n-
size, a reasonable minimum cell size,
and, if a State uses the flexibility
described in § 300.647(d)(2), standards
for determining whether an LEA has
achieved reasonable progress under
§ 300.647(d)(2) in lowering a risk ratio.
States must also determine which, if
any, of the available flexibilities under
§ 300.647(d) they will adopt. To the
extent States need to amend their
policies and procedures to comply with
these regulations, States will also need
time to conduct public hearings, ensure
adequate notice of those hearings, and
provide an opportunity for public
comment, as required by § 300.165. Accordingly, States must implement
the standard methodology under
§ 300.647 in SY 2018–19. In doing so,
States must identify LEAs with
significant disproportionality under
§ 300.647(c)(1) in SY 2018–2019 using,
at most, data from the three most recent
school years for which data are
available. We note that, in the case of
discipline, States may be using data
from four school years prior to the
current year, as data from the immediate
preceding school year may not yet be
available at the time the State is making
its determinations (i.e., final discipline
data from SY 2017–2018 may not yet be available at the time during SY 2018–
2019 the State is calculating risk ratios).
States must ensure that the
identification of LEAs with significant
disproportionality based on race and
ethnicity in the identification,
placement, or disciplinary removal of
children with disabilities in SY 2018–
2019, is based on the standard
methodology in § 300.647, and then
implement the revised remedies in
accordance with § 300.646(c) and (d). In
the spring of 2020, therefore, States will
report (via IDEA Part B Maintenance of
Effort (MOE) Reduction and
Coordinated Early Intervening Services
(CEIS) data collection, OMB Control No.
1820–0689) whether each LEA was
required to reserve 15 percent of their
IDEA Part B funds for comprehensive
CEIS in SY 2018–19. States may, at their option, accelerate
this timetable by one full year. States
may implement the standard
methodology in SY 2017–18 and assess
LEAs for significant disproportionality
using data from up to the most recent
three school years for which data are
available. States that choose to
implement the standard methodology in
§ 300.647 to identify LEAs with
significant disproportionality in SY
2017–2018 may also require those LEAs
to implement the revised remedies in in
accordance with § 300.646(c) and (d). Whether a State begins compliance in
SY 2017–2018 or 2018–2019, it need not
include children ages three through five
in the review of significant
disproportionality with respect both to
the identification of children as children
with disabilities and to the
identification of children as children
with a particular impairment, until July
1, 2020. Finally, the delayed compliance date
does not mean that States are excused
from making annual determinations of
significant disproportionality in the
intervening years. States must still make
these determinations in accordance with
the current text of § 300.646. Changes: None.
Appropriate Placement of Children
With Disabilities Comments: Commenters expressed
concerns that the Department is
encouraging the placement of children
with disabilities in the regular
classroom, irrespective of their needs or
IEP Team decisions. One commenter
expressed concern at the Department’s
perceived suggestion that children
placed in restrictive environments
receive substandard education and do
not receive appropriate services. The
commenter noted that, while the
Department stated its intention not to
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limit services for children with
disabilities who need them, its
suggestion that over-identification
results in restrictive placements and less
challenging academic standards
suggests otherwise. The commenter
noted that private, specialized
education programs that serve children
with disabilities publicly placed by
LEAs are required to meet the same
academic standards as public schools
and that each public agency is required
to ensure that a continuum of
alternative placements and services is
available to children with disabilities.
Discussion: The Department agrees
with commenters that it would be
inappropriate to place all children with
disabilities in the general education
classroom 100 percent of the time
without regard to their individual needs
or IEP Team decisions, including
decisions about supplementary aids and
services that will enable the child to be
involved in, and make progress in, the
general education curriculum. Section
300.115 explicitly requires that each
public agency ensure that a continuum
of alternative placements is available to
meet the needs of children with
disabilities for special education and
related services. Further, § 300.116
requires that each child’s placement
decision must be made in conformity
with the least restrictive environment
(LRE) provisions in §§ 300.114 through
300.118. The LRE provision in IDEA
section 612(a)(5), (20 U.S.C. 1412(a)(5))
and its implementing regulation in
§ 300.114 require, to the maximum
extent appropriate, that children with
disabilities, including children in public
or private institutions or other care
facilities, be educated with children
who are not disabled. Special classes,
separate schooling, or other removal of
children with disabilities from the
regular educational environment should
occur only when the nature or severity
of the disability of a child is such that
education in regular classes with the use
of supplementary aids and services
cannot be achieved satisfactorily.
Unnecessarily removing children with
disabilities from an integrated setting
and concentrating them in separate
schools runs contrary to the integration
goal that lies at the heart of the
Americans with Disabilities Act (ADA).
(See, e.g., 28 CFR 35.130(b)(1)(ii),
(b)(1)(iv), (b)(2); see also, Olmstead v.
L.C., 527 U.S. 581, 597 (1999)
(‘‘Unjustified isolation, we hold, is
properly regarded as discrimination
based on disability’’ under title II of the
ADA).) Additionally, under § 300.116, a
child’s placement must be determined
at least annually, be based on the child’s individualized education program (IEP),
and be as close as possible to the child’s
home. The overriding rule is that
placement decisions must be
determined on an individual, case-by-
case basis, depending on each child’s
unique needs and circumstances and, in
most cases, based on the child’s IEP.
Further, eligibility determinations and
placement decisions must be made at
the local level with parental input and
in accordance with the requirements of
IDEA and its implementing regulations.
These regulations do not override
either the requirement under
§ 300.306(a) that eligibility
determinations must be made by a
group of qualified professionals and the
parent of the child or the requirement
under § 300.116(a)(1) that placement
decisions must be made by a group of
persons, including the parents, and
other persons knowledgeable about the
child, the meaning of the evaluation
data, and placement options. However, to the extent that a State
identifies significant disproportionality
based on race or ethnicity with respect
to identification and placement in an
LEA, we believe it is fully appropriate,
as IDEA section 618(d)(2)(A) (20 U.S.C.
1418(d)(2)(B) requires, for there to be a
review, and, if necessary, revision, of
the policies, practices, and procedures
of the LEA to ensure that eligibility and
placement decisions are consistent with
IDEA’s focus on providing children with
disabilities a free appropriate public
education in the least restrictive
environment based on their individual
needs. Changes: None.
Comments: Many commenters raised
concerns that a standard methodology
would be inconsistent with the
individualized nature of IDEA. Some
were concerned that proposed
§ 300.647(b) would lead LEAs to
establish strict, albeit unofficial, quotas
on the numbers of children with
disabilities who could be identified,
placed in particular settings, or
disciplined in order for the LEA to
avoid being identified with significant
disproportionality. These commenters
stated that this practice, or any uniform
mathematical calculation, would fail to
consider each child’s individual needs.
Other commenters had similar concerns,
noting that identification and placement
decisions are appropriately made by IEP
teams on an individual basis—based on
a full, fair, and complete evaluation,
consistent with IDEA’s requirements—
and argued that it would be
inappropriate for the Department to
promulgate a regulation that could exert
undue pressure on those decisions.
These commenters said that discipline decisions alone should be subject to
analysis for significant
disproportionality, as it was the only
category that was an administrative
decision and not the purview of IEP
teams.
Discussion: Under IDEA section
601(d)(1)(A) (20 U.S.C. 1400(d)(1)(A)),
one of the purposes of IDEA is to ensure
that all children with disabilities have
available to them a free appropriate
public education that emphasizes
special education and related services
designed to meet their unique needs.
The Department disagrees with the
assertion that any uniform methodology
for determining significant
disproportionality in LEAs would be
inconsistent with IDEA’s emphasis on
addressing the unique needs of
individual children. In fact, one of the
main goals of these regulations is to
help ensure, through improved
implementation of section 618(d) of
IDEA, that identification and placement
decisions are, in fact, based on the
unique needs of individual children,
rather than the result of problematic
policies, practices, and procedures that
may differentially and inappropriately
affect children in various racial and
ethnic groups. Once an LEA is identified as having
significant disproportionality, it would
not be appropriate for the LEA to
overturn prior decisions regarding the
identification of children as children
with disabilities or the placement of
children with disabilities in particular
educational environments simply to
prevent future findings of significant
disproportionality. Moreover, it is a violation of IDEA for
LEAs to attempt to avoid determinations
of significant disproportionality by
failing to identify otherwise eligible
children as children with disabilities.
IDEA sections 612(a)(3)(A) and
613(a)(1), 20 U.S.C. 1412(a)(3)(A) and 20
U.S.C. 1413(a)(1). Imposing artificial
numerical targets on the groups
responsible for making eligibility
determinations under § 300.306(a)(1) or
placement decisions under
§ 300.116(a)(1), or restricting their
ability to make eligibility
determinations or placement decisions
based on the unique needs of the child
are also inconsistent with IDEA. IDEA
requires that the individual needs of
children with disabilities, as described
in their IEPs, be central to determining
eligibility for IDEA services and
appropriate placement. Furthermore, IDEA and its
implementing regulations currently
include provisions to safeguard
individualized decision-making. States
must ensure that all LEAs, including
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those determined to have significant
disproportionality with respect to
identification, implement the States’
child find procedures. (20 U.S.C.
1412(a)(3) and (a)(11) and 20 U.S.C.
1416 (a)(1)(C)) (34 CFR 300.111, 300.149
and 300.600). States must also ensure
that LEAs comply with specific
evaluation procedures under IDEA
section 614(b) (20 U.S.C. 1414(b)) to
determine a child’s eligibility for special
education services and ensure that a
child’s placement in a particular
education setting is based on his or her
IEP (§ 300.116(b)) and is in the least
restrictive environment (IDEA section
612(a)(5)) (20 U.S.C. 1412(a)(5)). Under
IDEA section 618(d)(2)(A) (20 U.S.C.
1418(d)(2)(A)), States must provide for
an annual review, and, if appropriate,
revision of policies, practices, and
procedures to ensure that LEAs
identified with significant
disproportionality are in compliance
with IDEA’s requirements. Through this
review process and their monitoring
procedures, States have an opportunity
to ensure that LEAs identified with
significant disproportionality
appropriately implement child find,
evaluation, and placement procedures.
Last, while the Department will
require all States to use a standard
methodology to implement IDEA
section 618(d), we believe that
§ 300.647(b) provides States with
sufficient flexibility to prevent
unintended consequences associated
with the use of a numerical formula to
identify significant disproportionality.
When risk ratio thresholds are set too
low, we believe there is some risk that
LEAs may face pressure to
inappropriately limit or reduce the
identification of children with
disabilities to avoid a determination of
significant disproportionality. For this
reason, we believe it is important for
States to take time to consult with their
stakeholders and State Advisory Panels
to ensure that, when setting risk ratio
thresholds, they balance the need to
identify significant disproportionality in
LEAs with the need to avoid perverse
incentives that would inhibit a child
with a disability from being identified
or placed in the most appropriate setting
based on the determination of the IEP
Team.
Changes: None.
Special Education—Generally Comments: A few commenters
asserted that special education must be
seen as a support for children, not as
bad for children or as a punishment,
and that it was inappropriate for the
Department to suggest that special education services are generally of low
quality.
Discussion: We agree that special
education and related services provided
in conformity with a child’s IEP are
essential for children with disabilities to
receive a free appropriate public
education. We do not agree that we in
any way suggested that special
education services are of low quality or
that they are a punishment of any kind.
To the extent that children in particular
racial or ethnic groups are
disproportionately identified as
children with disabilities, placed in
particular educational environments,
and disciplined, it is possible that the
special education and related services
that those children are receiving are
inappropriate for their specific needs.
This says nothing about the quality of
the services that LEAs provide to
children with disabilities generally.
Changes: None.
Results-Driven Accountability
Comments: Some commenters
expressed concerns that the proposed
regulations divert OSEP away from
results-driven accountability—which
includes consideration of both
compliance and results data in
measuring States’ performance under
IDEA annual determinations process—
and back towards IDEA compliance
alone.
Discussion: We disagree. The
Department’s re-conceptualized IDEA
accountability system—results-driven
accountability—is designed to support
States in improving results for children
with disabilities, while continuing to
assist States in ensuring compliance
with IDEA’s requirements. We believe
that an effective accountability system is
attentive to both goals. High quality
results do not mitigate a State’s
responsibility to comply with the
statute, just as compliance with the
statute does not reduce the imperative
for States to achieve improved results
for children with disabilities. While
significant disproportionality has not
been included as a compliance indicator
in the SPP/APR, States are still
responsible for complying with IDEA
section 618(d) (20 U.S.C. 1418(d)), and
for ensuring that LEAs identified with
significant disproportionality carry out
the statutory remedies. Nothing in the
regulations changes these obligations,
and the Department maintains its
responsibility to monitor and enforce
the implementation of this requirement.
Changes: None. II. A Standard Methodology for
Determining Significant
Disproportionality (§ 300.647)
General
Comments: The Department received
several comments in support of
proposed § 300.647(b), which would
require States to follow a standard
methodology to identify significant
disproportionality in the State and the
LEAs of the State. Many supported
particular features of the proposed
methodology, including the use of a
standard method to compare racial and
ethnic groups and minimum n-size
requirements, and others expressed
support for having a general or common
methodology. One commenter also noted that
proposed § 300.647(b) addressed the
GAO’s recommendation to develop a
standard approach for defining
significant disproportionality. One
commenter described observing racial
and ethnic disparities within LEAs that
went unaddressed by States and that
State definitions of significant
disproportionality were so complex that
they were difficult to comprehend.
Other commenters stated that the
standard methodology in proposed
§ 300.647(b) would provide much
needed clarity and draw attention to
potentially inappropriate policies,
practices, and procedures for the
identification, placement, and
discipline of children with disabilities.
Some of these commenters stated that
common standards are the only way for
the public and the Department to judge
the efforts of the States and to ensure
transparency in this area. Discussion: The Department
appreciates the comments in support of
the creation of a standard methodology
to identify significant disproportionality
in the identification, placement, and
discipline of children with disabilities.
We agree that these regulations will
help to improve comparability of
significant disproportionality
determinations across States, increase
transparency in how States make
determinations of LEAs with significant
disproportionality, improve public
comprehension of a finding of
significant disproportionality (or lack
thereof), and address concerns raised by
the GAO. Changes: None.
Comments: Many commenters
expressed concern that the standard
methodology is unnecessary, has not
been sufficiently reviewed, or should be
further researched before its adoption is
required to prevent potential harm to
States that already address significant
disproportionality well. Another
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commenter argued that, without
substantive analysis of the intended and
unintended results, it was premature to
implement the standard methodology at
a national level. Further, the commenter
recommended that the standard
methodology be subject to a pilot test to
explore fiscal, data analysis, and
systems change issues after a full review
of public comment. Another commenter
recommended that the Department
postpone issuing these regulations until
it had better knowledge of appropriate
methods for measuring racial
differences. One commenter
acknowledged the complexity involved
in measuring racial and ethnic
disparities but stated that there is no
reason why a measurement strategy
cannot be selected, implemented, and
studied after the regulations are in
place. The Department interpreted this
comment to suggest that is not necessary
to study, or pilot, a particular method of
measuring racial and ethnic disparities
before State use of the method is
required by regulation.
Discussion: The Department
appreciates all of the comments about
§ 300.647(b). However, for the reasons
that follow, we do not believe it is
necessary to remove the requirement
that States use the standard
methodology in § 300.647 to determine
if significant disproportionality based
on race and ethnicity is occurring in the
State and LEAs of the State. Further, we
disagree with commenters’ concerns
that the standard methodology requires
further research before being
implemented or could cause substantial
harm to States that are doing well in
addressing significant
disproportionality. In developing the standard
methodology, the Department drew
heavily from current State practices. As
we noted in the NPRM, most States, as
part of their methodology for comparing
racial and ethnic groups for the purpose
of identifying significant
disproportionality, already use a version
of the risk ratio, a minimum n-size or
cell size, a threshold over which LEAs
are identified with significant
disproportionality, and up to three years
of data when making an annual
determination. States also have flexibility to tailor the
standard methodology to the needs of
their populations. This flexibility
includes the ability to set reasonable
risk ratio thresholds and reasonable
minimum cell sizes and n-sizes (all with
input from stakeholders, including the
State Advisory Panel), the choice to use
up to three years of data before making
a determination of significant
disproportionality, and the option to not identify LEAs that exceed the risk ratio
threshold but are making reasonable
progress under § 300.647(d)(2) in
lowering their risk ratios in each of the
two prior consecutive years. We
provided this flexibility because we
believe it is appropriate for States to
tailor their implementation of these
regulations to their unique
circumstances—and, as they feel
necessary, make adjustments—rather
than delay the implementation of the
regulations. Nothing in the regulations
prohibits States from changing their risk
ratio thresholds, population
requirements, or flexibilities in
accordance with § 300.647 if, after
implementation of the regulations, they
determine that reasonable adjustments
are needed.
The Department appreciates the
suggestion that States pilot the standard
methodology and analyze its effects
prior to adopting the regulations
nationwide; however, we decline to
accept the suggestion. Given that the
standard methodology is largely based
on approaches currently in use among
States, we agree with the commenter
who asserted that additional study of
the standard methodology after the
regulations are in place, rather than
before, is appropriate. Accordingly, we
plan to evaluate the impact of these
regulations, including the implications
of using risk ratios to compare racial
and ethnic groups. We also believe that
the considerable flexibility provided to
States will allow researchers to collect
and study valuable data regarding
different applications of the standard
methodology across States. Changes: None.
Comments: One commenter suggested
that the States’ loss of flexibility to
define significant disproportionality
may create other, more significant forms
of inequity and inappropriate
identification. The commenter did not
further detail the types of inequity that
might arise. Discussion: While § 300.647(b)
requires that all States follow a standard
methodology to identify significant
disproportionality, we believe that these
regulations provide States with
sufficient flexibility to tailor their
implementation to their unique
circumstances. This flexibility includes
the ability to set reasonable risk ratio
thresholds, reasonable minimum cells
sizes and n-sizes (with input from
stakeholders, including the State
Advisory Panel), the choice to use up to
three years of data before making a
determination of significant
disproportionality, and the option to not
identify LEAs that exceed the risk ratio
threshold but are making reasonable progress under § 300.647(d)(2) in
lowering their risk ratios in each of the
two prior consecutive years.
Changes: None.
Comments: Numerous commenters
noted that each State’s
disproportionality processes have been
approved by the Department and
recommended that, in lieu of these
regulations, the Department address any
concerns regarding disproportionality,
or definitions of significant
disproportionality, State by State. Discussion: The Department does not
believe that approach would achieve the
goals of improved transparency and
consistency among States. We believe
that the standard methodology adopted
in these final regulations is a necessary
step to achieve those goals. Changes: None.
Comments: One commenter was
concerned about the Department’s
contention that States’ current
methodologies of identifying significant
disproportionality were inappropriate,
given that the Department’s contention
is based on a data analysis that uses a
methodology different from the States’
methodologies. Discussion: The Department disagrees
that the basis for these regulations is a
single analysis conducted by the
Department. The standard methodology
provides basic guidelines to facilitate
greater consistency among States,
consistent with the GAO’s
recommendations, and to promote
greater transparency in State efforts to
address significant disproportionality.
The recommendations of the GAO,
public comments the Department
received in a response to a 2014 request
for information (79 FR 35154), and the
Department’s review of State definitions
of significant disproportionality all
informed the Department’s decision to
require that all States follow a standard
methodology. Comments: One commenter stated
that, because there is no flexibility once
an LEA is identified with significant
disproportionality, States make
decisions about their methodologies to
ensure LEAs are not inappropriately
identified for arbitrary factors unrelated
to policies, practices, and procedures. Discussion: While it is important for
States to appropriately identify LEAs for
significant disproportionality, we
disagree with the commenter that
identification of significant
disproportionality is arbitrary if it is
based on factors unrelated to an LEA’s
policies, practices, or procedures. IDEA
section 618(d) (20 U.S.C. 1418(d)) is not
intended solely to address significant
disproportionality that results from
inappropriate policies, practices, or
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2In the 2006 IDEA regulation, just prior to the
Department’s discussion regarding a definition of
significant disproportionality, the Department did
note that another commenter’s suggestion was
inconsistent with IDEA. This commenter had
proposed that the Department amend the regulation
to clarify that the determination of significant
disproportionality should be based on a review of
LEA policies and procedures, and not just a
numerical determination. 71 FR 46738.
procedures. Under IDEA section
618(d)(2) (20 U.S.C. 1418(d)(2)), a
review of policies, practices, and
procedures is a consequence of, not a
part of, a determination of significant
disproportionality. Under this
provision, once LEAs are identified with
significant disproportionality, States are
required to ensure the review and, if
appropriate, revision of the LEAs’
policies, practices, and procedures to
ensure they comply with IDEA. Changes: None.
Comments: One commenter argued
that the ability to make comparisons
among States, if that is the Department’s
goal with these regulations, does not
result in meaningful discussion or
problem-solving as each State is unique. Discussion: By requiring that all
States follow a standard methodology, it
is the Department’s intent to foster
greater comparability in the approaches
States use to identify significant
disproportionality. While States will
have flexibility to determine their own
reasonable risk ratio thresholds, to
determine reasonable population
requirements, such as a minimum n-size
or cell size, and to use up to three
consecutive years of data, we believe the
standard methodology provides
comparability that is key to promoting
transparency in the States’
implementation of IDEA section 618(d),
and, in turn, meaningful discussion
with stakeholders and State Advisory
Panels regarding the State’s progress in
addressing significant
disproportionality. These comparisons
among States are currently not possible,
given, for example, the vastly different
methods States currently use to compare
racial and ethnic groups, as was
described in the NPRM. Changes: None.
Comments: One commenter expressed
concern that the Department’s standard
methodology is inconsistent with IDEA.
The commenter stated that, when
reauthorizing IDEA in 2004, Congress
expanded the law’s focus on issues
related to disproportionality by
including consideration of racial
disparities and by adding certain
enforcement provisions out of a ‘‘desire
to see the problems of over-
identification of minority children
strongly addressed.’’ The commenter
noted that Congress did not define the
term ‘‘significant disproportionality’’ or
impose a methodology to determine
whether significant disproportionality
based on race or ethnicity in the State
and its LEAs is occurring. According to
the commenter, each State was left to
choose its own methodology for
determining whether there is significant
disproportionality in the State and its LEAs with respect to identification,
placement, and discipline of racial and
ethnic minority children with
disabilities. The commenter argued that
this intent was reflected in final IDEA
Part B regulations, promulgated by the
Department in August 2006, which
stated that ‘‘[w]ith respect to the
definition of significant
disproportionality, each State has the
discretion to define the term for the
LEAs and for the State in genera1.’’ The
commenter stated that, in 2006, the
question of whether to impose a
methodology for determining significant
disproportionality was rejected by the
Department as inconsistent with the
law. The commenter also argued that an
expansion of the Department’s authority
to determine whether States’ risk ratio
thresholds are reasonable conflicts with
congressional intent, as the law does not
support a national standard for
determining significant
disproportionality. Other commenters
expressed similar concerns, stating that
proposed § 300.647(b) was an example
of Federal overreach—an improper
attempt to control local education.
Discussion: We agree with the
commenter that, at the time of the 2006
regulations, the Department declined to
include a definition of significant
disproportionality in the regulations. At
the time, the Department stated that
there are multiple factors to consider in
making a determination of significant
disproportionality—such as population
size, the size of individual LEAs, and
composition of State population—and
determined that States were in the best
position to evaluate those factors. 71 FR
46738. However, the Department did
not state that a definition of significant
disproportionality would be
inconsistent with the law.
2
The fact that the Department chose
not to regulate on these issues in 2006,
based on information and experience
available at the time, does not preclude
the Department from doing so now
under our authority to issue regulations
under IDEA section 607(a) (20 U.S.C.
1406(a)). Under IDEA section 618(d)(1)
(20 U.S.C. 1418(d)(1)), States must
collect and examine data to determine
each year whether significant
disproportionality based on race and
ethnicity is occurring in the State and
its LEAs with respect to the identification, placement, and
discipline of children with disabilities.
The Department has the authority to
issue regulations to the extent
regulations are necessary to ensure
compliance with the requirements of
Part B of IDEA (IDEA section 607(a) (20
U.S.C. 1406(a)). As we noted in the
NPRM, the Department concurs with
findings by the GAO that the variability
in State definitions of significant
disproportionality has made it difficult
to assess the extent to which States are
appropriately identifying LEAs with
significant disproportionality. Based on
the GAO’s findings, comments received
in response to a June 2014 request for
information on addressing significant
disproportionality under IDEA section
618(d), and the field’s experience with
IDEA section 618(d) over the last 12
years, the Department now believes that
these proposed changes are necessary to
ensure that States meaningfully identify
LEAs with significant disproportionality
and that the statutory remedies are
implemented in a manner that addresses
any significant disproportionality
identified.
We do not believe that
standardization of an analysis required
under a Federal statute, consistent with
the authority provided to us in that
same statute, while providing a great
deal of flexibility to States, constitutes
Federal overreach. Nothing in these
regulations requires the adoption of
particular educational practices at the
local level or seeks to exert control of
local education decision-making. Changes: None.
Comments: One commenter noted
that Directed Questions #5, #9, #10, and
#12 all inquire whether the Department
should place future mandates,
requirements, or restrictions upon the
States relating to creation of risk ratio
thresholds or State flexibility to define
‘‘reasonable progress.’’ The commenter
stated that additional Federal oversight
in the form of mandates, requirements,
or restrictions is unwarranted and
inappropriate. The commenter claimed
the States and their respective State
boards or departments of education are
most knowledgeable about the issues
affecting them. As such, the commenter
argued that those issues are best left to
the discretion of individual States. Discussion: As the Department has
explained in detail, both in the NPRM
and in this document, we believe these
regulations are necessary to ensure
consistent State action in examining
LEAs for significant disproportionality
based on race and ethnicity in the
identification, placement, and
discipline of children with disabilities.
Again, as the GAO found in its 2013
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study, only two percent of more than
15,000 LEAs nationwide were required
in SY 2010–11 to provide
comprehensive CEIS, and the
Department found, in SY 2012–13 that
22 States did not identify any LEAs as
having significant disproportionality.
That said, we agree that flexibility is
necessary for States, and these final
regulations give States the flexibility to
determine reasonable risk ratio
thresholds, reasonable minimum cell
sizes and n-sizes, and standards for
reasonable progress after consultation
with stakeholders and State Advisory
Panels. Section 300.647(d) of the final
regulations provides additional
flexibilities to States. Under § 300.647(d)(1) a State is not
required to identify an LEA with
significant disproportionality until it
has exceeded the risk ratio threshold set
by the State for up to three years. Under
§ 300.647(d)(2), a State is not required to
identify an LEA that has exceeded the
risk ratio threshold with significant
disproportionality until the LEA ceases
to make reasonable progress in lowering
its risk ratio in each of two prior
consecutive years. Changes: None.
Comments: One commenter stated
that it is discriminatory to create a
formula for how many children of color
can be identified as having disabilities.
Another commenter stated that the
Department’s proposal would force
LEAs to serve children based on the
Department’s understanding of how
many children should be served, rather
than on the individual needs of each
child. A number of commenters argued
that individual children need to be
assessed without consideration of their
race, ethnicity, socioeconomic status,
sexual orientation, or gender. Discussion: The Department agrees
with commenters that the determination
of whether a child is eligible for special
education services must not include
consideration of his or her race,
ethnicity, socioeconomic status, sexual
orientation, or gender, or any numerical
formula associated with these
characteristics. LEAs must also follow
specific evaluation procedures under
IDEA section 614(b) (20 U.S.C. 1414(b))
to determine a child’s eligibility for
special education services. However, we disagree that the
standard methodology under
§ 300.647(b) represents a formula
indicating how many children of color,
or children in general, may be identified
as children with disabilities. As we note
elsewhere in this section, we believe
that restricting the ability to make
eligibility determinations by imposing
artificial numerical targets on the groups responsible for making eligibility
determinations under § 300.306(a)(1) is
inconsistent with IDEA. The standard
methodology is not intended to guide
determinations of eligibility for special
education; rather, it is designed to help
States to appropriately determine
whether significant disproportionality,
based on race and ethnicity, is occurring
within an LEA with respect to the
identification, placement, and
discipline of children as children with
disabilities. For LEAs determined to
have significant disproportionality, the
statute requires that the State provide
for a review, and, if necessary, revision
of policies, practices, and procedures to
ensure compliance with IDEA and
require each LEA to implement
comprehensive CEIS to address the
factors contributing to the significant
disproportionality.
Changes: None.
Comments: One commenter stated
that the proposed regulations do little to
address significant disproportionality
and that the only way to address
disparities in identification is to provide
guidance to States and LEAs on the
appropriate identification of children
with disabilities from diverse
backgrounds.
Discussion: While we generally agree
that guidance about the appropriate
identification of children with
disabilities would be helpful to States
and LEAs, we do not believe it is the
only way to address disparities in
identification. By requiring States to use
a standard methodology, it is our intent
to help States to make more appropriate
determinations of significant
disproportionality, and, consistent with
IDEA section 618(d)(2)(A) (20 U.S.C.
1418(d)(2)(A)), help ensure that LEAs
identified with significant
disproportionality undergo a review,
and, if necessary, revision, of policies,
practices, and procedures to ensure
compliance with IDEA. We believe that
guidance regarding the appropriate
identification of children as children
with disabilities will be more valuable
when paired with strategies that require
LEAs determined to have with
significant disproportionality to take
steps to review their policies, practices,
and procedures.
Consistent with the commenters’
suggestion, it is the Department’s intent
to publish guidance to help schools to
prevent racial discrimination in the
identification of children as children
with disabilities, including over-
identification, under-identification, and
delayed identification of disabilities by
race.
Changes: None. Comments:
A large number of
commenters opposed the standard
methodology based on their view that
any standard method for calculating
disproportionality is inherently flawed
because numbers and data cannot reveal
the cause of the disproportionality. Discussion: While we agree with
commenters that data analysis does not
identify or address the causes of
numerical disparities, the identification
of LEAs as having significant
disproportionality nevertheless is a first
step that will require LEAs to identify
and address the causes of the significant
disproportionality. Under
§ 300.646(d)(1)(ii), in implementing
comprehensive CEIS, LEAs identified
with significant disproportionality are
required to identify and address the
factors contributing to the significant
disproportionality. Changes: None.
Comments: Many commenters stated
that any rules to address
disproportionality in special education
must be based on solid theoretical
foundations and research-based, reliable
mechanisms for the identification of
disproportionality that are not skewed
by extraneous factors and not based on
single, arbitrary calculations. Discussion: While we generally agree
that efforts to address racial and ethnic
disparities in special education should
be informed by research, theory, and
reliable data, we also interpret IDEA
section 618(d) to require States to make
a determination of significant
disproportionality based on a numerical
calculation and to take specific steps to
address any significant
disproportionality identified. This has
been our long-standing position and we
believe that it is the best interpretation
based on the language in section 618(d)
that requires States to collect and
examine ‘‘data’’ to determine if
significant disproportionality is
occurring. Congress placed the
significant disproportionality provision
in section 618(d) and under section
618(a), States are required to provide
‘‘data’’ on the number and percentage of
children with disabilities by race and
ethnicity who are: Receiving FAPE;
participating in regular education; in
separate classes, separate schools or
residential facilities; removed to interim
alternative education setting; and
subject to long-term suspensions and
expulsions and other disciplinary
actions. To develop a standard
methodology consistent with the
requirements of IDEA section 618(d),
the Department drew heavily from
current State practices implemented and
adjusted over the course of the 12 years
since the last reauthorization of IDEA.
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As we noted in the NPRM, most States,
as part of their methodology for
comparing racial and ethnic groups for
the purpose of identifying significant
disproportionality, already use a version
of the risk ratio and a threshold over
which LEAs are identified with
significant disproportionality. Further,
States use population requirements—
such as a minimum n-size or cell size—
and up to three years of data when
making an annual determination to
offset the volatility of risk ratios.
The standard methodology under
§ 300.647 includes these features, but
also provides States with flexibility to
tailor them to the needs of their
populations. This flexibility includes
the ability to set reasonable risk ratio
thresholds, reasonable minimum cell
sizes and n-sizes (with input from
stakeholders, including the State
Advisory Panel), the choice to use up to
three years of data before making a
determination of significant
disproportionality, and the option to not
identify LEAs that exceed the risk ratio
threshold but are making reasonable
progress, under § 300.647(d)(2), in
lowering their risk ratios in each of the
two prior consecutive years.
Given that the standard methodology
is largely based on approaches currently
in use among States and includes a large
degree of flexibility, it will help States
to make appropriate, and not arbitrary,
determinations of significant
disproportionality.
Changes: None.
Comments: Several other commenters
requested that the analysis for
significant disproportionality include
not only a risk ratio or other
mathematical calculation but also a
review of factors such as inappropriate
identification, discriminatory practices,
State performance indicators,
graduation rates, and academic
performance. One commenter suggested
that the Department use a two-step
approach to ensure that States are
focusing on LEAs where compliance
indicators may have impacted the
performance of children with
disabilities. The Department would first
examine performance indicators and
identify agencies significantly
discrepant from the median. This
information would then be combined
with data from compliance indicators,
including information on
disproportionality, to determine how to
provide States and LEAs with technical
assistance and support. A few
commenters suggested that LEAs first
undergo a review for discriminatory
practices, and, if none exist, no further
action should be taken. Discussion:
Based on the plain
language of IDEA section 618(d) (20
U.S.C. 1418(d)), States are required to
make a determination of whether
significant disproportionality, based on
race and ethnicity, is occurring by
collecting and examining data. We
interpret this language to limit States’
determinations of significant
disproportionality to a review of the
numerical disparities between racial
and ethnic groups with respect to
identification, placement, and
discipline. Given this language, we do
not believe it would be consistent with
IDEA to allow the multi-factor standard
methodology for determining significant
disproportionality that the commenters
suggested. Changes: None.
Comments: Several commenters
argued that, if States must adopt a
standard methodology for determining
significant disproportionality, then
States need greater flexibility to exempt
LEAs from reserving Part B funds for
comprehensive CEIS. Discussion: Once an LEA has been
determined to have significant
disproportionality in identification,
placement or discipline, the LEA is
required under IDEA section
618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)) to
reserve the maximum amount of funds
under section 613(f) to provide
comprehensive CEIS. IDEA does not
include any provision that would allow
the Department or States to waive the
statutory remedies for LEAs identified
with significant disproportionality. Changes: None.
Comments: Some commenters likened
the standard methodology to a one-size
metric that would fail to account for
factors that might influence
measurements of significant
disproportionality. These include,
according to one commenter, the size of
the LEA, its location, and the popularity
of an LEA’s programs. Similarly, one
commenter noted that data may be
misinterpreted in a one-size-fits-all
model, especially where there are
outliers that do not fit the model. Discussion: The Department disagrees
with the assertion that the proposed
standard methodology is a one-size-fits-
all approach to identifying significant
disproportionality. The final regulations
provide States with a great deal of
flexibility within the standard
methodology to identify significant
disproportionality only in those LEAs
with the greatest racial and ethnic
disparities. Section 300.647(b)(1) of the final
regulations requires States to set
reasonable risk ratio thresholds to
determine the threshold above which an LEA may be identified with significant
disproportionality and to determine
reasonable minimum cell sizes and n-
sizes to exclude from their review for
significant disproportionality those
racial and ethnic groups within LEAs
with too few children to calculate stable
risk ratios. These standards must be
based on advice from stakeholders,
including State Advisory Panels.
Section 300.647(d)(1) of the final
regulation allows States flexibility not to
identify an LEA until it has exceeded
the risk ratio threshold for up to three
consecutive years. Lastly,
§ 300.647(d)(2) allows States not to
identify LEAs that exceed the risk ratio
thresholds if LEAs are making
reasonable progress in lowering their
risk ratios in each of the two prior
consecutive years.
Changes: None.
Comments: Many commenters
requested that the standard
methodology be flexible enough to
allow LEAs to appeal any findings of
significant disproportionality that are
outside the control of school personnel.
One commenter requested that the
Department establish a waiver system,
whereby LEAs could exceed risk ratio
thresholds for the identification of
children with disabilities without a
finding of significant disproportionality,
so long as the LEAs provide adequate
justification. Another commenter suggested that
LEAs with specialized programs, when
identified with significant
disproportionality, have the option to
submit an explanation to the State as to
why their numerical disparities are not
indicative of any inappropriate
identification, placement, or discipline
of children. The commenter suggested
that the State then consider this
explanation, along with compliance
data, to determine whether a finding of
significant disproportionality is
appropriate. Two commenters requested that
States have flexibility to consider
mitigating circumstances; the
commenters shared that, as a result of
one LEA’s location near a children’s
hospital, the LEA has an identification
rate for autism much higher than the
State rate. Discussion: The Department
appreciates the request to create a
waiver and appeals system for certain
LEAs with risk ratios above the State-
selected risk ratio threshold. However,
IDEA does not allow for such a system,
and we believe there are sufficient
flexibilities in the final regulations to
address the commenters’ underlying
concerns. Further, the Department
believes that, even if it had the authority
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to allow this system, it would be
inconsistent with the goal of
maximizing consistent enforcement of
the statute and comparability of data
across States, which were issues raised
by the GAO.
Changes: None.
Comments: Several commenters
included a request that States be
allowed to waive the requirements of
IDEA section 618(d) for very small
LEAs.
Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and analyze data to determine whether
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State. There
is no provision in the statute that allows
a State to exempt an LEA from this
analysis solely because of the size of its
overall enrollment.
However, with these regulations, it is
our goal to help ensure that LEAs with
significant disproportionality based on
race and ethnicity in identification,
placement, or discipline are
appropriately identified and that the
significant disproportionality is
appropriately addressed. For certain
racial and ethnic groups within small
LEAs, specifically those groups with
very small populations, the risk ratio
method of measuring significant
disproportionality is susceptible to
volatility—the possibility that small
changes in population will result in
large changes in the risk ratio that do
not represent any systemic problems
giving rise to significant
disproportionality. Therefore, in order
to ensure that LEAs are not
inappropriately identified because their
data would not produce valid results,
§ 300.647(c) of the final regulation
allows States to exclude from their
review any racial and ethnic groups
within LEAs that do not meet the State-
set population requirements. This is
consistent with various IDEA provisions
that require States and LEAs to use valid
and reliable data when meeting IDEA
requirements. (See, IDEA section
614(b)(3)(A)(iii), requiring public
agencies to use assessments that are
valid and reliable; IDEA section
616(b)(2)(B)(i), requiring States to report
valid and reliable data in their State
Performance Plans/Annual Performance
Reports (SPPs/APRs); and IDEA section
616(i)(1), requiring the Secretary to
review the data collection and analysis
capacity of States to ensure that data
and information determined necessary
for implementation of section 616 is
collected, analyzed, and accurately
reported to the Secretary).
Changes: None. Comment:
Several commenters
requested that States be allowed to
waive the standard methodology in
proposed § 300.647(b) in extraordinary
circumstances, including environmental
disasters that may impact children’s
health, such as the recent water
contamination in Flint, Michigan. Other
commenters urged the Department to
allow States discretion to determine the
appropriate set-aside amount if an LEA
is suffering both a fiscal and
environmental crisis, or if there should
even be a set-aside for LEAs that are
recovering from a substantial health or
environmental crisis, as the demand for
basic special education programs and
services for eligible children may be
extremely high. One commenter urged
the Department to consider the needs of
children in these circumstances, rather
than simple measures of disparity, to
determine whether the identification of
significant disproportionality is
appropriate. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and examine data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State. A
specific exemption for LEAs that have
experienced an environmental disaster,
or other extraordinary circumstances, is
not contemplated under IDEA. We think
it would be inappropriate to assume that
all such crises would create, or worsen,
prolonged and significant racial and
ethnic disparities in special education.
Therefore, we do not think it would be
appropriate to exempt LEAs that have
experienced an environmental disaster
or other extraordinary circumstances
from the analysis for significant
disproportionality. If an LEA is identified with significant
disproportionality, IDEA section
618(d)(2) (20 U.S.C. 1418(d)(2)) requires
the State to provide for the review and,
if necessary, revision, of the LEA’s
policies, practices, and procedures to
ensure they comply with IDEA. The
section also requires the LEA to publicly
report on any revisions and reserve 15
percent of its IDEA Part B funds to
provide comprehensive CEIS.
Specifically, IDEA section 618(d)(2)(B)
(20 U.S.C. 1418(d)(2)(B)) requires an
LEA identified with significant
disproportionality to reserve the
maximum amount of funds under IDEA
section 613(f), which is 15 percent of its
IDEA Part B funds, to provide
comprehensive CEIS. Therefore, the
Department does not have the authority
to allow LEAs to adjust the amount that
they are required to reserve for
comprehensive CEIS. Changes: None. Comments:
Some commenters shared
their concerns that LEAs with a high
population turnover due to highly
mobile families or school choice might
be inappropriately identified with
significant disproportionality under the
standard methodology in § 300.647(b).
One commenter suggested that, if a
school’s mobility rate is significantly
higher than the State average, the
standard methodology should not be
applied. One commenter argued that
there is nothing that an LEA can do to
address significant disproportionality
when it is the result of children simply
enrolling or moving into the LEA.
Another commenter requested that the
Department address the issue of
transfers, both interstate and intrastate,
and their potential impact on findings of
significant disproportionality. One
commenter stated that, in one LEA,
families are transient due to military
connections, making it highly likely that
the children transferring into the LEA
were identified with a disability outside
of the LEA. One commenter supported
the exclusion of transfer children from
the LEA counts of children with
disabilities used to determine
significant disproportionality. Last, one
commenter opposed the omission of
highly mobile children from the State’s
review for significant disproportionality
because children transfer in and out of
LEAs, and, in general, this movement
does not result in a significant net gain
in children. Further, the commenter
argued that omitting those children from
the analysis would be burdensome for
States.
Discussion: The Department
recognizes that particular LEAs are more
likely to serve high numbers of highly
mobile children, including children of
military families. In such LEAs, it is
particularly likely that eligibility
determinations were initially made by
LEAs other than the one currently
providing special education and related
services to the student. Highly mobile
children include children experiencing
frequent family moves into new school
districts, such as military-connected
children, migrant children, children in
the foster care system, and children who
are homeless. There is no reason States
cannot determine, in accordance with
§ 300.647, whether significant
disproportionality is occurring in LEAs
with highly mobile children. To the
extent that highly mobile children make
an LEA vulnerable to large swings in the
risk ratio from year to year, the standard
methodology will help to prevent
inappropriate identification due to rapid
changes in enrollment by allowing
States to take into consideration up to
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three years of data prior to making a
determination of significant
disproportionality.
However, under IDEA section
614(a)(1) (20 U.S.C. 1414(a)(1)), all
children who are suspected of having a
disability and who are in need of special
education and related services,
including highly mobile children, must
be evaluated in a timely manner and
without undue delay so that eligible
children can receive a free appropriate
public education (FAPE). (34 CFR
300.101, 300.111, and 300.201.) When a
child transfers to a new school district
in the same school year, whether in the
same State or in a different State, after
the previous school district has begun
but has not completed the evaluation,
both school districts must coordinate to
ensure completion of the evaluation.
This must occur as expeditiously as
possible, consistent with applicable
Federal regulations. Under IDEA section
614(a)(2)(B) (20 U.S.C. 1414(a)(2)(B)), all
LEAs are required to reevaluate each
child with a disability not more
frequently than once a year, and at least
once every three years, unless the
child’s parent and the LEA agree
otherwise. As such, each LEA must
ensure, through proper implementation
of its child find procedures, appropriate
identification and placement of all
children with disabilities for whom it is
responsible for making FAPE available,
regardless of how long that child has
resided in the LEA. For this reason, and because
providing that exception would be
particularly complex and burdensome
to implement, the Department declines
the recommendation to exempt highly
mobile children, or to exempt LEAs
with large numbers of mobile children,
from the State’s analysis for significant
disproportionality. Changes: None.
Comments: A few commenters urged
the Department to allow States, in
implementing § 300.647(b)(3), to count
only those children with disabilities
identified by the LEA. Of these, one
commenter noted that it would not be
fair for LEAs to be held accountable for
children who are not identified by the
LEA’s own school personnel. Another
commenter stated that there are some
LEAs, such as vocational LEAs and
charters schools, that educate children
with disabilities identified by other
LEAs. According to the commenter,
these LEAs are often identified with
disproportionate representation and
would likely be inappropriately
identified with significant
disproportionality under the
Department’s proposed standard
methodology. Similarly, another commenter recommended that States
have flexibility to determine if the
disproportionality based on race or
ethnicity is due not to the actions of the
LEA but to disparities in the enrollment
of children previously identified with
disabilities.
Discussion: Children with disabilities,
like all children, may transfer from
school to school for a variety of reasons,
ranging from a family relocation—
including relocations related to the
military—to homelessness, foster care,
or because they are members of migrant
families, to name a few. The Department
has provided guidance to States
regarding how they should collect and
report IDEA section 618 data, including
child count data. As explained in the
guidance, children who reside in one
LEA but received services in another
LEA should be reported by the LEA that
has responsibility for providing a free
appropriate public education to the
children. OSEP Memorandum 08–09,
Response to Question 18 and FILE C002,
2013. In general, the Department
expects that States will use the same
data annually submitted to the
Department under IDEA section 618 to
make determinations of significant
disproportionality. Further, as we discussed elsewhere in
this section, the Department believes
that the standard methodology contains
sufficient flexibility to prevent the
inappropriate identification of LEAs
with specialized programs as having
significant disproportionality. Changes: None.
Comments: Many commenters
requested that States have the flexibility
to exempt an LEA from examination for
significant disproportionality under
IDEA section 618(d) if the LEA houses
any residential facilities, foster homes
(or high numbers of children in foster
care), or group homes. One commenter
stated that the standard methodology
does not properly account for
residential placements and the locations
of facilities, including incarcerated
children. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and examine data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State.
However, a specific exemption for LEAs
that house residential facilities, foster
homes, or group homes is not
contemplated under IDEA. We also do
not believe that exemption would be
appropriate. There could be significant
racial and ethnic disparities in LEAs
that house residential facilities, foster
homes, or group homes, and nothing
prevents the State from doing a reliable data analysis in those LEAs. For these
reasons, the Department declines to
exempt an LEA from examination for
significant disproportionality under
IDEA section 618(d) if it houses any
residential facilities, foster homes (or
high numbers of children in foster care),
or group homes.
The Department has previously
provided guidance on how children
with disabilities placed in a residential
facility or group home by an educational
or noneducational agency should be
counted for the purpose of calculating
significant disproportionality. All
children with disabilities placed in a
residential facility or group home in the
same State by an educational agency
must be included in the calculation of
significant disproportionality. However,
a State should assign responsibility for
counting children with disabilities
placed in out-of-district placements to
the LEA that is responsible for
providing FAPE for those children,
rather than the LEA in which the child
has been placed. Children with disabilities placed in a
residential facility or group home in a
different State by an educational agency
should be included in a State’s
calculation of significant
disproportionality in the LEA
responsible for providing FAPE for that
child (the placing LEA). Children with disabilities placed in
residential facilities or group homes in
the same State by a noneducational
agency (e.g., court systems; departments
of corrections; departments of children,
youth and families; departments of
social services; etc.) may be excluded
from a State’s calculation of significant
disproportionality if the State has valid
and reliable procedures for determining
which children should be excluded. Children with disabilities placed in a
residential facility or group home in a
different State by a noneducational
agency (e.g., court systems; departments
of corrections; departments of children,
youth and families; departments of
social services; etc.) may be excluded
from the calculation of significant
disproportionality by both the State in
which the child resides and the State
where the residential facility or group
home is located, if the State has valid
and reliable procedures for determining
which children should be excluded.
(See, IDEA section 618(d); Questions
and Answers on Disproportionality,
June 2009, Response to Question B–1.) Changes: None.
Comments: One commenter shared
that, in one State, only LEAs—and not
State-run facilities or group homes
housed within LEAs—are accountable
for significant disproportionality.
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Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and examine data to determine whether
the LEAs within the State have
significant disproportionality. In
general, the term ‘‘local educational
agency’’ means a public board of
education or other public authority
legally constituted within a State for
administrative control or direction of, or
to perform a service function for, public
elementary schools or secondary
schools in a city, county, township,
school district, or other political
subdivision of a State, or for such
combination of school districts or
counties as are recognized in a State as
an administrative agency for its public
elementary schools or secondary
schools. (See, IDEA section 602(19) (20
U.S.C. 1401(19) and 34 CFR 300.28).)
For this reason, we do not expect States
to determine whether State-run facilities
or group homes housed within LEAs
have significant disproportionality,
unless those facilities or group homes
are LEAs under § 300.28. Changes: None.
Comments: A number of commenters
responded to Directed Question #1 in
the NPRM, which requested public
input about the appropriate application
of the standard methodology to LEAs
serving only children with disabilities
and LEAs with special schools and
programs. We received comments with
varying suggestions. Several commenters stated that
special schools and programs should be
excluded from a State’s review of an
LEA for standard methodology, whereas
others stated that these special schools
must be included. Numerous
commenters opposed to including
special schools or programs in the
identification of significant
disproportionality stated that States
should have discretion to include
children in specialized schools in their
review for significant
disproportionality. One commenter
stated that, in one State, only LEAs are
held accountable for significant
disproportionality—not schools serving
only children with disabilities or
offering specialized programs. Another
commenter inquired whether programs
serving children with disabilities from
multiple LEAs should be excluded from
the State’s determination of significant
disproportionality. One commenter noted that, while
LEAs specially constituted as special
education LEAs may have the
appearance of disproportionality, these
LEAs have legitimate reasons for
overrepresentation of certain racial and
ethnic populations. One commenter
stated that the standard methodology cannot be used, as the risk ratio cannot
be calculated, for an LEA that enrolls
only children with disabilities. This
commenter suggested that States
monitor disproportionality in those
LEAs through performance reports.
Discussion: The Department disagrees
with the commenters that requested that
LEAs with specialized schools or
programs, and the children within those
schools or programs, should be
excluded from a review of significant
disproportionality. IDEA section
618(d)(1) (20 U.S.C. 1418(d)(1)) requires
States to collect and examine data to
determine whether significant
disproportionality based on race and
ethnicity is occurring in the State and
the LEAs of the State. As a general
matter, therefore, if a special school or
program is an LEA, consistent with the
definition of LEA in § 300.28, and serves
children with and without disabilities,
the State must apply the standard
methodology in § 300.647 to determine
if significant disproportionality is
occurring in that LEA, and all of the
remedies in § 300.647(c) and (d) apply. However, the Department has
carefully considered the commenters’
concerns about LEAs serving only
children with disabilities. In accordance
with IDEA section 618(d)(1) (20 U.S.C.
1418(d)(1)), a State must annually
collect and examine data to determine,
using the standard methodology under
§ 300.647, if significant
disproportionality is occurring in LEAs
that serve only children with
disabilities. Consistent with IDEA
section 618(d)(2)(A) and (C), and
§ 300.346(c), if such an LEA is identified
with significant disproportionality, the
State must provide for the review and,
if appropriate, revision of the policies,
practices, and procedures used in
identification or placement in particular
education settings, including
disciplinary removals, to ensure they
comply with the IDEA. The State must
also require the LEA to publicly report
on any revisions. However, we note that it would be
impossible for LEAs that serve only
children with disabilities to comply
with the requirement in IDEA section
618(d)(2)(B) following a determination
of significant disproportionality. Under
our interpretation of that section, LEAs
must use at least some of the IDEA Part
B funds reserved for comprehensive
CEIS to serve children without
disabilities, and we have adopted this
interpretation in § 300.646(d)(3). This
would require an LEA that serves only
children with disabilities to reserve
IDEA Part B funds to provide
comprehensive CEIS, which under
§ 300.646(d)(3) must include services to children without disabilities, a
population that the LEA does not serve.
Therefore, an LEA that serves only
children with disabilities is not required
to reserve 15 percent of its IDEA Part B
funds to provide comprehensive CEIS.
That said, suggestions that specialized
schools or programs that are housed in
an LEA that serves children with
disabilities and children without
disabilities or only children with
disabilities should be exempt from the
standard methodology are inconsistent
with the goal of addressing significant
disproportionality, by race or ethnicity,
in the most restrictive placements. By
allowing States to ignore children in
those placements when reviewing LEAs,
the Department could inadvertently
create an incentive to place children
with disabilities in special schools—
instead of separate classrooms. Further,
as noted earlier, a State should assign
responsibility for counting a child who
is placed in a specialized school or
program housed in an LEA to the
‘‘placing LEA,’’ if that LEA remains
responsible for providing FAPE to that
child, rather than to the LEA in which
the specialized school or program is
housed. Changes: The Department has added
§ 300.646(e) to clarify that LEAs that
serve only children with disabilities are
not required to reserve IDEA Part B
funds for comprehensive CEIS. Comments: A few commenters
suggested that States have flexibility to
exclude from their review children with
disabilities who are placed in special
schools by non-education agencies, such
as courts or mental health agencies. Discussion: Children with disabilities
placed in special schools in the same
State by a noneducational agency (e.g.,
court systems; departments of
corrections; departments of children,
youth and families; departments of
social services; etc.) may be excluded
from a State’s calculation of significant
disproportionality, if the State has valid
and reliable procedures for determining
which children should be excluded.
Children with disabilities placed in a
special school in a different State by a
noneducational agency (e.g., court
systems; departments of corrections;
departments of children, youth and
families; departments of social services;
etc.) may be excluded from the
calculation of significant
disproportionality by both the State in
which the child resides and the State
where the residential facility or group
home is located, if each State has valid
and reliable procedures for determining
which children should be excluded.
(See, IDEA section 618(d); and
Questions and Answers on
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Disproportionality, June 2009, Response
to Question B–1.)
Changes: None.
Comments: One commenter stated
that, while LEAs specially constituted
as special education LEAs may have the
appearance of disproportionality, these
LEAs have legitimate reasons for
overrepresentation of certain racial and
ethnic populations. Another commenter
suggested that States, when calculating
risk ratios for LEAs with specialized
schools, use an alternate method of
calculating risk for the racial or ethnic
group of interest. The Department
understood this commenter to suggest
that States adjust the denominator used
to calculate risk to include children
from the racial or ethnic group from that
LEA and children from the same racial
or ethnic group from a similarly sized
LEA without children with disabilities.
A few commenters suggested that States
should have discretion to include
additional calculations of
disproportionality of the LEAs with
special schools. Commenters in favor of
including special schools indicated that
the LEAs are responsible for the
children within their LEAs and,
therefore, should be held accountable
for those children. One commenter
stated that, because children in one
State remain assigned to the LEA
responsible for accountability and
reporting purposes, specialized
populations have not had an effect on
the State’s ability to capture significant
disproportionality data. One commenter stated that, in its
State, the data from the children placed
in the specialized school are included in
the receiving LEA’s counts of children.
A number of commenters expressed a
belief that when a child is placed in a
specialized school, the referring LEA
should retain the child’s data for this
count. One commenter requested that
the Department clarify the impact of the
standard methodology on programs
serving children with disabilities across
multiple LEAs, and clarify the
implications of the standard
methodology for the LEA in which the
program operates and LEA in which
attending children are residents. The
commenter asked about the possibility
of sharing accountability for these
children between the resident and
operating (or ‘‘sending’’ and
‘‘receiving’’) LEAs. Discussion: The Department
considered the different approaches
commenters recommended. As noted
earlier, using the standard methodology
under § 300.647, a State must annually
collect and examine data to determine if
significant disproportionality is
occurring in LEAs that serve only children with disabilities. However, we
have clarified in § 300.646(e) that LEAs
that serve only children with disabilities
are not required to reserve IDEA Part B
funds for comprehensive CEIS.
That said, there is no specific
exemption in IDEA section 618(d)(1) (20
U.S.C. 1418(d)(1)) for LEAs that house
special schools and serve children with
and without disabilities or only children
with disabilities. We do not believe an
exemption for those LEAs is appropriate
because by allowing States to ignore
children in special schools when
reviewing LEAs, the Department could
inadvertently create an incentive to
place children with disabilities in
special schools instead of separate
classrooms, for example. For these
reasons, the Department declines to
exempt LEAs that house special schools
and serve children with and without
disabilities or only children with
disabilities from a determination of
significant disproportionality under
IDEA section 618(d). Further, current IDEA section 618
data collection procedures are
consistent with the commenters’
recommendation that children with
disabilities placed in a special school
should be counted by the LEA that
placed the children in the special school
(what one commenter refers to as the
‘‘sending LEA’’) and is responsible for
providing FAPE to the child. (See, FILE
C002, 2013 and OMB Control No. 1875–
0240.) The Department expects that
States will use the same data annually
submitted under IDEA section 618(a)
(20 U.S.C. 1418(a)) to make
determinations of significant
disproportionality. Consistent with the
guidelines that govern that reporting,
children publicly placed in special
schools should be included in the
enrollment counts for the LEA that is
responsible for providing FAPE to the
child. FILE C002, 2013. This means that
many children in special schools or
programs in LEAs, to the extent they are
publicly placed by another LEA, will
not affect LEAs count of children, for
purposes of significant
disproportionality, because these
children are already attributed to the
LEA responsible for providing FAPE to
the child. Changes: None.
Comment: Many commenters were
concerned that highly regarded schools
for children with disabilities with open
enrollment policies often draw their
children from across the State or region.
In fact, one commenter expressed that
families might relocate within the
borders of some LEAs with reputations
for higher quality services, resources,
and outcomes for a particular disability. This commenter stated that LEAs are
not able to address significant
disproportionality by race or ethnicity
that is due to self-selection.
Discussion: The Department
appreciates these concerns. However,
data do not exist that could distinguish
these LEAs from other LEAs or
determine the intent of families that
move into these LEAs. Further, there is
no reason to exclude LEAs from the
analysis for significant
disproportionality because parents elect
to enroll their children in LEAs with a
reputation for high quality services.
Therefore, the Department declines to
create an exception for LEAs that
include highly regarded schools with
open enrollment policies that often
draw their children from across the
State or region. Change: None.
Comments: In response to Directed
Question #8, which inquired how best
to address significant disproportionality
in LEAs with homogenous populations,
we received a few comments that LEAs
with homogenous populations should
not be examined for disproportionality,
positing that ‘‘if there is no comparison
group, there can be no
disproportionality.’’ However, we
received more comments that indicated
LEAs with homogenous populations
should be included in significant
disproportionality calculations. A few
commenters offered that these LEAs
should use an unspecified alternate
method in place of, or in addition to, the
standard methodology in proposed
§ 300.647(b). A few more commenters
offered that these LEAs should use an
unspecified calculation in addition to
the standard risk ratio method. Another commenter suggested that,
for LEAs with homogenous populations,
the Department closely analyze the
performance data that States submit and
use compliance monitoring to identify
problems and provide technical
assistance. Some commenters suggested
that the data from the LEAs with
homogenous populations should be
compared to similarly sized LEAs, to a
statewide risk ratio, or to national data. One commenter suggested that the
Department allow the use of alternate
calculations to identify instances of
significant disproportionality because,
where no comparison group exists, it is
not possible to obtain valid and reliable
data by using a risk ratio or alternate
risk ratio calculation. Another
commenter suggested that a different
risk ratio method should be used to
identify significant disproportionality in
homogenous populations (e.g., urban
special education schools comprised
primarily of children from one racial or
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ethnic background), using data from
LEAs or other States with more racially
and ethnically diverse populations, yet
similar in other demographic factors.
One commenter suggested that States
undertake a longitudinal examination of
homogenous LEAs over a period of five
years and only take action if nearly all
individuals from a race or ethnic
subgroup have been identified or
disciplined. This commenter disagreed
with suggestions that these LEAs be
compared with national or State data
and suggested that comparisons to LEAs
of similar size and demographics would
be most appropriate. Two commenters
expressed concern that homogenous
LEAs would not fare well under the
proposed regulations. Discussion: The Department
appreciates all of these suggestions. We
believe it is important that States review
LEAs, whenever possible, for significant
disproportionality, even when LEAs
may have homogenous populations. We
do not agree with the suggestion that
there cannot be disparity where there is
no comparison group within the LEA.
To the contrary, it is quite possible for
children with disabilities from a
particular racial or ethnic subgroup to
be identified, disciplined, or placed in
restrictive settings at rates markedly
higher than their peers in other LEAs
within the State. The fact that there is
no comparison group within the LEA
does not mean that the LEA should not
be reviewed for significant
disproportionality, particularly since
IDEA section 618(d)(1) (20 U.S.C.
1418(d)(1)) requires States to determine
whether significant disproportionality is
occurring within the State and the LEAs
of the State. For this reason, under
§ 300.647(a) and (b)(5), States are
required to calculate the alternate risk
ratio—using a State-level comparison
group—whenever the comparison group
within the LEA does not meet the
States’ population requirements. While
we considered commenters’ suggestions
to allow States to use an approach other
than the alternate risk ratio to examine
homogenous LEAs, we continue to
believe that the alternate risk ratio is the
strongest option, given its close
similarity to the risk ratio in ease of
calculation and interpretation. As with
the risk ratio, we anticipate that the
stability of the alternate risk ratio will
be improved by the flexibility States
have to set reasonable population
requirements and use up to three
consecutive years of data to identify
significant disproportionality. However, in reviewing the
commenters’ feedback, we recognize
that there may be certain situations
when using an alternate risk ratio may not be adequate for evaluating a
homogenous LEA. These instances
include homogenous LEAs within
homogenous States or unitary systems
where an LEA and its State cover the
same geographic area. In a homogenous
unitary system, the risk ratio, which
uses an LEA-level comparison group,
and the alternate risk ratio, which uses
a State-level comparison group, would
be the same; therefore, if a unitary
system has too small a comparison
group to calculate a risk ratio, it would
also have too small a comparison group
to calculate the alternate risk ratio and
therefore would produce an unreliable,
or meaningless result. In this situation,
we believe that IDEA does not require
a review for significant
disproportionality.
Changes: We have added
§ 300.647(c)(2), which excludes States
from calculating the risk ratio or
alternate risk ratio for a racial or ethnic
group when, for both the risk ratio and
the alternate risk ratio, there is an
insufficient number of children in all
other racial or ethnic groups to serve as
a comparison group. Comment: One commenter requested
that the Department consider a unique
methodology for determining significant
disproportionality in LEAs with clusters
of recent immigrants. This methodology
should accommodate the special
influences in language and culture,
differences in access to education in
immigrants’ country of origin, or post-
traumatic stress. A few commenters also
noted that, as their LEA is now home to
an office that provides adjustment
services to refugees and immigrants, it
may have the appearance of
disproportionality even though it has
legitimate reasons for
overrepresentation of certain
populations. Discussion: The Department
appreciates these concerns. However,
there is no specific exemption in IDEA
section 618(d) (20 U.S.C. 1418(d)(1)) for
LEAs with clusters of immigrants. Such
an exemption would not be appropriate
because we believe that it is particularly
important to review LEAs with clusters
of recent immigrants for significant
disproportionality. Therefore, the
Department declines to create an
exception for these LEAs. Changes: None.
Comment: Several commenters
requested that because certain LEAs
have atypical demographic distributions
that could create data anomalies, the
Department should exempt certain types
of LEAs from providing comprehensive
CEIS and from reviewing, revising, and
publishing, as appropriate, policies,
procedures, and practices if identified with significant disproportionality.
Many commenters asserted that States
should have authority to exempt LEAs
from these statutory remedies if there is
a small population of children, where
the addition or subtraction of a few
children alters a finding of significant
disproportionality. Other commenters
requested that LEAs with very low rates
of special education identification,
restrictive placements, or exclusionary
discipline for all children should not be
automatically required to set aside
funding to provide comprehensive CEIS.
The Department interprets the comment
to suggest that LEAs with very low rates
of identification, restrictive placement,
and discipline will likely be identified
with significant disproportionality due
to high risk ratios. A few commenters
requested further consideration of how
significant disproportionality is applied
to States and rural LEAs. One
commenter expressed strong concerns
that the regulation would, without just
cause, negatively affect its small, rural
LEA, where children of color make up
less than five percent of the school
population.
Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and analyze data to determine whether
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State. However, the Department agrees with
commenters that LEAs with small
populations or small populations of
specific racial or ethnic subgroups with
disabilities, such as those in small rural
or charter schools, could potentially
produce risk ratios that are misleading
due to volatility associated with
calculating risk ratios for small numbers
of children. The Department appreciates
the feedback of commenters and agrees
that a minimum n-size of 10, as
proposed in the NPRM, is insufficient to
account for issues related to LEAs with
small populations. We describe in the section Minimum
Cell Sizes and Minimum N-Sizes
(§ 300.647(b)(3) and (4); § 300.647(b)(6)),
the changes to these regulations to give
States added flexibility to exempt LEAs
from a review for significant
disproportionality when a racial or
ethnic group does not meet a reasonable
minimum cell size or reasonable
minimum n-size set by the State with
input from the stakeholders, including
the State Advisory Panel. This change will give the States
increased flexibility to use a minimum
cell size—a minimum number of
children in the risk numerator when
calculating a risk ratio—to avoid
identifying LEAs with significant
disproportionality due to the
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3See, OSEP Dear Colleague Letter, August 5,
2016, citing Letter to Texas Education Agency
Associate Commissioner Susan Barnes, December
18, 2003. As stated in the Barnes letter, ‘‘. . . IDEA
requires that each State make available a free
appropriate public education to all children with
disabilities (as defined by the IDEA) aged 3 through
21 residing in the State (20 U.S.C. 1412(a)(1)). This
includes the identification and evaluation of
children with disabilities (20 U.S.C. 1412(a)(3)), the
development of an individualized educational
program (20 U.S.C. 1412(a)(4)), the provision of
special education and related services in the least
restrictive environment (20 U.S.C. 1412(a)(5)), and
the provision of procedural safeguards to children
with disabilities and their families (20 U.S.C.
1412(a)(6)). The IDEA statute and its corresponding
regulations do not make any exceptions to these
requirements or allow States to waive or relax these
requirements for virtual schools.’’
identification, placement, or
disciplinary removal of a small number
of children. The minimum cell size
should also help to prevent
identification of LEAs with low
prevalence of identification, placement,
discipline—which may be subject to
more volatile risk ratios—to the extent
that these LEAs also have a small
population of children. Again, however, IDEA does not
contain any provisions allowing either
States, or the Department, to waive the
statutory remedies once an LEA is
identified with significant
disproportionality. When an LEA is
identified with significant
disproportionality, the statute specifies
that the State must require the LEA to
reserve the maximum amount of funds
under section 613(f)—15 percent of its
IDEA, Part B funds—to provide
comprehensive CEIS. Changes: Please see the discussion on
changes to minimum cell and n-sizes in
the section Minimum Cell Sizes and
Minimum N-Sizes (§ 300.647(b)(3) and
(4); § 300.647(b)(6). Comment: One commenter requested
clarification about the responsibilities of
virtual schools and the LEAs within
which children attending the virtual
schools live. The commenter stated that
there has been a significant increase in
the number of children with disabilities
who receive part or all of their
education through virtual schools,
raising the need for guidance on this
issue. Discussion: IDEA requires that each
State make FAPE available to all eligible
children with disabilities aged 3
through 21 within the State’s mandated
age range and residing in the State. (20
U.S.C. 1412). This includes the
identification and evaluation of children
with disabilities, the development of an
IEP, the provision of special education
and related services in the least
restrictive environment, and the
provision of procedural safeguards to
children with disabilities and their
families. The requirements of IDEA
apply to States and LEAs, regardless of
whether a child is enrolled in a virtual
school that is a public school of the LEA
or a virtual school that is constituted as
an LEA by the State.
3IDEA and its implementing regulations do not make
any exceptions to these requirements to
allow States to waive or relax
requirements for virtual schools,
including those virtual schools
constituted as LEAs. Therefore, the
requirements that States must use to
determine whether significant
disproportionality based on race or
ethnicity is occurring in LEAs applies to
LEAs with virtual schools and to virtual
schools that are constituted as LEAs,
consistent with § 300.28. Letter to Texas
Education Agency Associate
Commissioner Susan Barnes, 2003.
Changes: None.
Comment: Another commenter
observed that in its State, a high school
LEA has been identified as having
significant disproportionality based on
the identification of children with
disabilities, simply because of the
combining of elementary school LEAs
into one population. The commenter
stated that there was no significant
disproportionality at the elementary
level. Discussion: With regard to States that
include elementary school LEAs and
high school LEAs, the Department’s
standard methodology offers States
sufficient flexibility to ensure that the
identification of those LEAs is
appropriate. When calculating risk
ratios under § 300.647(b)(1), States are
required to select reasonable minimum
cell sizes (to be applied to the risk
numerator) and minimum n-sizes (to be
applied to the risk denominator). This
will allow States to focus their attention
on the most systemic disparities and
avoid the identification of LEAs based
on volatile risk ratios. Changes: None.
Comments: One commenter
recommended that the Department
require States use to use a tiered
standard methodology that takes into
consideration the type, size, and poverty
within an LEA Discussion: As we noted in the
NPRM, part of the purpose of the
standard methodology is to foster
greater transparency in how States
identify significant disproportionality.
Given this, it is critical that the standard
methodology consist of simple and
easily interpreted analyses. The
Department believes that a tiered
methodology would be inconsistent
with this goal because it would require States to adjust the methodology for
different types of LEAs, adding greater
complexity and, possibly, ambiguity.
Instead of a tiered methodology, the
Department has proposed a standard
methodology that provides States with
adequate flexibility to consider the
needs of different types of LEAs. This
flexibility includes the ability to set
reasonable risk ratio thresholds,
reasonable minimum cells sizes and n-
sizes (with input from State Advisory
Panels), the ability consider up to three
years of data before making a
determination of significant
disproportionality, and the option to not
identify LEAs that exceed the risk ratio
threshold and are making reasonable
progress in lowering their risk ratios. Changes: None.
Comments: Many commenters
requested greater clarity as to the count
of children that should be used for the
denominator when calculating risk
ratios for a particular racial or ethnic
group. One commenter noted that, for
discipline risk ratios, one State uses a
cumulative count of children rather
than a snapshot, point-in-time count.
These commenters note that States
should be allowed to use the
denominators that most closely align
with the numerators of the risk
calculations, where alignment refers
both to the timing of the counts and to
the inclusion or exclusion of certain
groups of children (e.g., parentally
placed private school children, children
ages three through five, children
receiving transition services, etc.) Discussion: In the NPRM, we noted
that, with respect to the specific
categories of analysis—identification,
placement, and discipline—the
Department’s intended to incorporate in
the regulations the required categories
of analysis, which are consistent with
the States’ current IDEA section 618
data submissions. In reviewing LEAs for significant
disproportionality with respect to
identification, we generally expect that
States will use the same IDEA section
618 data that is reported to the
Department (for data regarding children
with disabilities) and data submitted to
the Institute for Education Sciences for
the Common Core of Data (for
enrollment data). OMB Control No.
1875–0240. In reviewing LEAs for
significant disproportionality with
respect to placement, we generally
expect that States will use the same
IDEA section 618 data that is reported
to the Department. OMB Control No.
1875–0240. In reviewing LEAs for significant
disproportionality with respect to
discipline, we generally expect that
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States will use the same section 618
data reported to the Department. For
IDEA section 618 data, discipline data is
a cumulative count from July 1st
through June 30th, while IDEA section
618 child count and placement data is
a point-in-time count that occurs in the
fall. OMB Control No. 1875–0240. After
the final regulations are published, the
Department plans to provide States with
additional guidance about the counts of
children that States should use when
analyzing LEA data for significant
disproportionality with respect to
identification, placement, and
discipline.
Changes: None.
Comments: A few commenters
recommended that the Department
convene workgroups and invest in
research to explore issues related to
significant disproportionality. A few
commenters recommended that the
Department establish a workgroup to
make recommendations for researching
how to address common issues and
identify the root causes of
disproportionality. One commenter
recommended that Department build a
workgroup to identify evidence-based
practices in the implementation of
IDEA’s child find provisions so that
these practices can be distributed
widely to the field. This commenter also
recommended that the Department
convene an expert group to identify the
issues and possible solutions to under-
identification, including the under-
identification of children who are twice
exceptional. Another commenter
recommended that the Department more
carefully examine the impacts of
poverty on significant
disproportionality, including the
linkages between poverty and the
identification, placement, and
discipline of children with disabilities. Discussion: The Department
appreciates the suggestions to develop
workgroups and expand research into
the causes of significant
disproportionality, under-identification,
and evidence based practices States and
LEAs can use to address significant
disproportionality. The Department
agrees that it will be valuable to
undertake more research on the impact
of these regulations and on significant
disproportionality in general. We also
agree that it will be beneficial to help
develop communities of practice for
addressing significant
disproportionality and expand technical
assistance to support the work of States
and LEAs. After the publication of these
regulations, the Department plans to
identify additional resources to support
expanded research and technical
assistance to improve the identification, placement, and discipline of children
with disabilities.
Changes: None.
Risk Ratios (§ 300.646(b);
§ 300.647(a)(2); § 300.647(a)(3);
§ 300.647(b)) Comment: Several commenters
responded to Directed Question #2,
which requested additional strategies to
address the shortcomings of the risk
ratio method and inquired whether the
Department should allow or require
States to use another method in
combination with the risk ratio method.
A few commenters stated that the risk
ratio has a definite advantage over other
methods because it is easy to explain
and duplicate. Other commenters
agreed, stating that the risk ratio is
relatively simple and straightforward,
which is especially important for a
standard methodology. Two
commenters appreciated that the NPRM
included a review of several possible
methods for defining significant
disproportionality and had no concerns
with the selection of the risk ratio as the
approach that is currently most widely
used and best understood among States.
One commenter stated that its State has
primarily used the risk ratio method and
found success in identifying LEAs as
having significant disproportionality
each year. A few commenters stated that
the use of the risk ratio will provide an
opportunity to make comparisons
between LEAs and States to ensure
children are appropriately served
through IDEA. Discussion: The Department
appreciates the comments in support of
the use of the risk ratio as part of the
standard methodology. We agree that
States’ use of this method will help to
improve comparability of significant
disproportionality determinations
across States, increase transparency in
how States make determinations of
LEAs with significant
disproportionality, improve public
comprehension of a finding of
significant disproportionality (or lack
thereof), and address concerns raised by
the GAO. Changes: None.
Comments: Several commenters
expressed concerns about the risk ratio.
A few of these commenters expressed
that sole reliance on the risk ratio may
result in a failure to fully address the
problem of racial or ethnic
disproportionality. A number of
commenters expressed concern that, in
general, the risk ratio will not provide
enough information to determine
whether an LEA has significant
disproportionality. A few commenters
were concerned that the Department proposed the risk ratio as the standard
methodology due to its ease of
implementation by States and
comprehension by the public rather
than the robustness of the method itself
in determining disproportionality in
identification, placement, and
discipline.
Discussion: In developing the
standard methodology, the Department
drew heavily from current State
practices. As we noted in the NPRM,
most States, as part of their
methodology for comparing racial and
ethnic groups for the purpose of
identifying significant
disproportionality, already use a version
of the risk ratio, along with a threshold
over which LEAs are identified with
significant disproportionality. Further,
States using a risk ratio pair this method
with a minimum n-size or cell size and
use up to three years of data when
making an annual determination to
prevent inappropriate determinations of
significant disproportionality due to risk
ratio volatility. While the risk ratio
method will allow States to conduct
simple analyses that are easy to
interpret, we also believe this approach
is sufficiently robust to help States to
appropriately identify significant
disproportionality. While we agree with commenters that
while the use of risk ratios—or any data
analysis alone—does not identify or
address the causes of numerical
disparities, risk ratios are sufficient to
determine whether an LEA has
sufficiently large disparities to
determine whether significant
disproportionality is occurring. This
determination is an important first step
that will require the LEA to identify and
address the causes of the significant
disproportionality. Further, as we note
in A Standard Methodology for
Determining Significant
Disproportionality—General, we
interpret IDEA section 618(d) (20 U.S.C.
1418(d)) to require efforts to address the
causes of significant disproportionality
as a consequence of, rather than a part
of, the determination of significant
disproportionality. Changes: None.
Comments: Several commenters
requested that the Department allow the
use of additional criteria to address
limitations in the risk ratio method. One
commenter suggested that methods in
addition to, or instead of, risk and
alternate risk ratio should be allowed.
One commenter recommended that
States adopt other risk ratio methods,
provide the Department with a rationale
for doing so, and that the Federal
government evaluate each State’s
approach. Two commenters
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recommended that States be allowed to
demonstrate to the Department why the
use of a risk ratio or alternate risk ratio
may not provide the best analysis of
disproportionality in their State, and
then demonstrate the effectiveness of an
alternate calculation. These commenters
stated that the primary purpose of the
regulation should be to identify
significant disproportionality and that
methods other than the risk ratio can be
effective in doing so. A few commenters
requested that the Department allow
States to use multiple measures to
identify LEAs with significant
disproportionality. One commenter
stated that States’ use of multiple risk
ratio methods emerged based on careful
analysis of false positive identifications
that occurred when applying a single
risk ratio, possibly complemented by
the alternate risk ratio. This commenter
stated that States would not have moved
to more complex measures if it were not
considered important for the analysis to
have integrity.
A second commenter stated that one
State currently uses two measurements
for disproportionality—the alternate risk
ratio and the e-formula. This commenter
stated that using both methods—with an
appropriate minimum cell size and
minimum n-size—identifies both large
and small LEAs that have real racial and
ethnic disparities. Another commenter
encouraged the use of multiple methods
of identifying LEAs, as the sole reliance
on the relative risk ratio can lead to
unintended results (e.g., an inability to
calculate the risk ratio when a
comparison group has 0 percent risk). Discussion: In reviewing these
comments, the Department carefully
considered the need to provide States
adequate flexibility to adjust the
standard methodology to their needs,
while ensuring that the Department’s
goal of promoting uniformity and
transparency is addressed. As
mentioned in the NPRM, a 2013 GAO
study found that ‘‘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.’’ Further, the GAO found that
‘‘the way some states defined
overrepresentation made it unlikely that
any districts would be identified and
thus required to provide early
intervening services.’’ (GAO, 2013). To
better understand the extent of racial
and ethnic overrepresentation in special
education and to promote consistency
in how States determine which LEAs
are required to provide comprehensive
CEIS, the GAO recommended that the
Department ‘‘develop a standard approach for defining significant
disproportionality to be used by all
States’’ and added that ‘‘this approach
should allow flexibility to account for
state differences and specify when
exceptions can be made.’’ (GAO, 2013.)
In keeping with these
recommendations, the Department
believes that restricting States to the risk
ratio will foster greater transparency, as
well as comparability between States,
and thereby strengthen the Department’s
ability to review and report on States’
implementation of IDEA section 618(d).
To allow States to generate and adopt
additional criteria—even if only a
second criterion—would interfere with
the goal of greater comparability while
adding to the complexity of the standard
methodology as a whole. However, the Department is sensitive
to the commenters’ concerns and has
included some limited flexibilities that
States may consider when making
determinations of significant
disproportionality. Under § 300.647,
States have the flexibility to set their
own reasonable risk ratio thresholds and
to identify only those LEAs that exceed
the risk ratio threshold for a number of
consecutive years, but no more than
three. Section 300.647(d)(2) also allows
States to not identify LEAs that exceed
the risk ratio threshold if they
demonstrate reasonable progress, as
determined by the State, in lowering the
risk ratio for the group and category in
each of two consecutive prior years.
This latter flexibility enables States to
identify significant disproportionality
only in those LEAs where the level of
disproportionality is the same or not
decreasing at a reasonable rate and does
not require those LEAs that are
reasonably reducing disparities to
implement the remedies required under
IDEA section 618(d)(2), even if those
LEAs have risk ratios that exceed the
State’s risk ratio threshold. Last, while in the NPRM the
Department proposed to allow States to
set a minimum n-size of up to 10
children (or children with disabilities),
the Department has amended the
regulation to allow States to set
reasonable minimum n-sizes, as well as
reasonable minimum cell sizes, that
apply to the risk numerator when
calculating risk ratios. The Department’s
intent with this change was to allow
States to account for the volatility of risk
ratio calculations, deem as significant
only the most systemic cases of
significant disproportionality, and
prevent the identification of significant
disproportionality based on the
enrollment of, or the LEA’s responses to
the needs of, one or two children. It is
our belief that, by allowing States the flexibility to determine both minimum
n-sizes and minimum cell sizes, the
Department has dramatically reduced
the likelihood of inappropriate
identifications of significant
disproportionality (false positives) that
could occur when broadly applying the
risk ratio methodology. Further,
allowing States to use minimum cell
and n-sizes to determine when to use an
alternate risk ratio would allow States to
examine racial and ethnic groups for
significant disproportionality in the
absence of an LEA-level comparison
group or when the comparison group
has a risk of 0 percent.
With these provisions, the
Department believes these regulations
achieve an appropriate balance between
the need for flexibilities to ensure valid
data analysis when evaluating
significance and the need for greater
consistency among the States’
systematic reviews. Changes: See, discussion on changes
to minimum cell and n-sizes in the
section Minimum Cell Sizes and
Minimum N-Sizes (§ 300.647(a)(3) and
(4); § 300.647(b)(1)(i)(B) and (C);
§ 300.647(b)(3) and (4); § 300.647(c)(1)).
See also, discussion on the reasonable
progress flexibility in the section,
Reasonable Progress, § 300.647(c)(2). Comments: A large number of
commenters noted that the risk ratio
method does not work well with small
populations. Although most of these
comments cited issues with the
Department’s proposed cap on
minimum n-sizes, which we address in
the section Minimum Cell Sizes and
Minimum N-Sizes (§ 300.647(a)(3) and
(4); § 300.647(b)(1)(i)(B) and (C);
§ 300.647(b)(3) and (4); § 300.647(c)(1)),
some commenters were concerned that
the standard risk ratio method would be
inappropriately sensitive to racial and
ethnic disparities in smaller LEAs that
have fewer children with disabilities. Many commenters also recommended
that States have flexibility to add
criteria beyond risk ratio and minimum
n-size to avoid inappropriately
identifying significant
disproportionality due to small
numbers. Several of these commenters
reported that a large number of LEAs in
their States and regions are small and
use varying benchmarks for
identification. One commenter noted
that this flexibility would be necessary
for small LEAs, whether using a risk
ratio or weighted risk ratio calculation. A few commenters recommended
that, in States with small populations,
the Department permit the use of a
second method of calculating risk ratio,
such as the e-formula, statistical
significance testing, or n-size criteria,
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since small populations are vulnerable
to year-to-year fluctuations and a second
method helps to ensure risk is not due
to chance alone. A few commenters
noted that the use of the risk ratio alone,
without adequate minimum n-sizes or
additional significance testing, will
result in many LEAs being identified as
having significant disproportionality
when the disproportionality is due to
small numbers of children identified
with disabilities, placed in restrictive
settings, and disciplined, and not to any
underlying cause.
Discussion: The Department
appreciates all of these comments and
has considered the suggestion to permit
States to use additional methods,
beyond the use of the risk ratio alone,
to address the potential for false positive
identification of significant
disproportionality when risk ratios are
applied to small populations. As
discussed earlier, in the interest of
increasing both comparability and
transparency across States, with respect
to their implementation of IDEA section
618(d), we believe it is necessary to
require States to use a common
analytical method for determining
significant disproportionality and to
allow limited flexibilities within that
methodology rather than allowing or
requiring additional methodologies. For example, as discussed elsewhere
in this section, the Department received
various comments that the minimum n-
size initially proposed in the NPRM did
not adequately protect small
communities. The Department agrees
that additional criteria—beyond the risk
ratio and minimum n-size—would help
to ensure appropriate identification of
LEAs with significant
disproportionality. In addition to
minimum n-sizes, which States may use
to ensure risk denominators are
sufficiently large to calculate a stable
risk ratio, States may also use minimum
cell sizes to ensure that risk numerators
are sufficiently large to reduce the
potential for false positive identification
due to small numbers. Likewise, the ability to use up to three
years of data when determining
significant disproportionality could be
used to address the year-to-year
fluctuations that may occur in a State
with many small LEAs. Finally, because
States, in consultation with the State
Advisory Panel, must set a reasonable
risk ratio threshold and a measure of
reasonable progress, the Department
believes that the regulations provide
sufficient flexibilities for ensuring that
IDEA section 618(d) can be properly
implemented using this methodology. Changes: See, discussion on changes
to minimum cell and n-sizes in the section
Minimum Cell Sizes and
Minimum N-Sizes (§ 300.647(a)(3) and
(4); § 300.647(b)(1)(i)(B) and (C);
§ 300.647(b)(3) and (4); § 300.647(c)(1)).
See also, discussion on the reasonable
progress flexibility in the section,
Reasonable Progress, § 300.647(c)(2). Comment: Several commenters
expressed concern about efforts to
identify significant disproportionality in
LEAs with low incidence in any of the
categories of analysis. A few
commenters argued that there are
situations in which a risk ratio alone
will not provide enough information to
determine whether an LEA has or does
not have significant disproportionality.
For example, comparing two very low
risks for discipline of children with
disabilities can result in a high risk
ratio, even though both the racial or
ethnic group being examined and the
comparison group’s discipline rates are
low. Similarly, a few commenters noted
that sole reliance on the risk ratio can
produce similar results when examining
disability identification and restrictive
placement. A few commenters argued that the
risk ratio is dependent on scale and may
unduly penalize LEAs with a low
overall prevalence in the disability or
discipline categories. For example, an
LEA with an overall rate of suspension
for all children of less than one percent
would be regarded by most as
exemplary. According to the
commenter, the same LEA—if it were
suspending 1.5 percent of children with
disabilities in one racial or ethnic group,
and 0.5 percent from a comparison
group—would be treated the same as an
LEA that was suspending 30 percent of
children with disabilities in one group,
and 10 percent from a comparison
group. One commenter suggested that States
have flexibility to consider a low
incidence of disciplinary removals as
reasonable progress, or to exempt LEAs
with low incidence from any review of
significant disproportionality with
respect to discipline. Discussion: The Department
appreciates the suggestions to expand
the flexibilities included in the NPRM.
Under § 300.647(d)(1), States may
choose not to identify any LEAs as
having significant disproportionality
until a risk ratio for a particular racial
or ethnic group for a particular category
of analysis has exceeded a risk ratio
threshold for up to three consecutive
years. The Department believes that, in
cases where an LEA that exceeds the
minimum cell and n-sizes achieves
persistently low rates of disciplinary
action, such as a suspension, but a
particular racial or ethnic group faces consistently disproportionate treatment
over the course of multiple years, it
would be appropriate for the LEA to be
identified with significant
disproportionality.
Further, the Department believes that
allowing the use of up to three years of
data provides LEAs the time and
opportunity to encourage schools to use,
and train personnel to use, alternatives
to disciplinary removals prior to a State
determination of significant
disproportionality. The Department also
believes that allowing States to use up
to three years of data to identify
significant disproportionality will
promote the appropriate identification
of LEAs, including LEAs with low
incidence rates. Changes: None.
Comments: Several commenters
argued that the risk ratio will fail to
detect significant disproportionality in
areas where the risk levels in an LEA for
identification, placement, or discipline
are extraordinarily high for children in
all racial and ethnic groups. That LEA
could nevertheless have a small risk
ratio. Similarly, one commenter argued
that the risk ratio is an illogical measure
of the association between two groups;
for example, a risk ratio of 1.85 for
outcome rates of 37 percent and 20
percent means the same thing as a risk
ratio of 2.60 for rates of 13 percent and
5 percent Discussion: While that there may be
LEAs where children with disabilities
are inappropriately identified, placed in
overly restrictive settings, or disciplined
at higher rates than national averages,
IDEA section 618 and its requirement
for an annual review for significant
disproportionality does not operate in
isolation. There are other provisions of
IDEA beyond section 618(d) that
promote appropriate practices in these
areas. For example, States and LEAs
share responsibility for ensuring
appropriate implementation of State
child find procedures (IDEA section
612(a)(3)) and evaluation and
reevaluation procedures (IDEA section
614(a)–(c)); children with disabilities
must receive FAPE in the least
restrictive environment (IDEA section
612(A)(5)); and finally, specific
discipline procedures and protections
must be followed (IDEA section 615(k)). In addition, Congress included
specific language that allows States to
address higher incidences of discipline
for children with disabilities under
IDEA section 612(a)(22)(A). This
provision requires that States examine
data to determine if LEAs have
significant discrepancies, by disability
status or by race and ethnicity, in rates
of long-term suspensions and
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expulsions, either among the LEAs in
the State or when comparing rates for
disabled and nondisabled children
within each LEA.
There are still other sections of IDEA
that support the provision of services for
children in need of behavioral supports
and that could be used to address any
high incidence of disciplinary removals
among children with disabilities.
Section 614(d)(3)(B)(i) (20 U.S.C.
1414(d)(3)(B)(i)), for example, requires
IEP teams to, in the case of a child
whose behavior impedes the child’s
learning or that of others, consider the
use of positive behavioral interventions
and supports, and other strategies, to
address that behavior. In 2016, the Department released
guidance to clarify that, while IDEA
section 615(k)(1)(B) (20 U.S.C.
1415(k)(1)(B)) authorizes school
personnel to remove from their current
placement children who violate a code
of student conduct, that authority in no
way negates the obligation of schools to
provide behavioral supports to children
with disabilities as needed to ensure
FAPE. OSEP Dear Colleague Letter,
August 1, 2016. As noted earlier, significant
discrepancies in the rates of long-term
suspension and expulsions among LEAs
in a State or when comparing rates for
children with and without disabilities
are addressed by IDEA section
612(A)(22), but section 618(d) does not
contain comparable language mandating
those examinations. Finally, consistent with earlier
discussions, the Department declines to
require or allow additional criteria that
would reduce the proposed levels of
comparability and transparency. Changes: None.
Comments: Many commenters
suggested that the Department allow
States to compare LEA risk to a risk
index. Some argued that if the
Department allowed States to include
comparisons to risk indices in the
standard methodology, States could
reduce the number of LEAs identified
with significant disproportionality
where risk levels are very low for all
groups (but where the risk ratios are
high). Similarly, others recommended
that while any LEA with a racial or
ethnic group risk ratio above the
specified risk ratio threshold would be
considered for a finding of significant
disproportionality, any LEA with a
racial or ethnic group risk that was to
some degree below the State mean risk
index would not be determined to have
significant disproportionality. Still other
commenters suggested many variations
on ways that a comparison to a risk
index could be used, such as comparing the risk of a particular outcome for a
racial or ethnic group in an LEA to a
statewide risk or a national risk for that
same group. These recommendations
addressed the use of risk indices for
different areas of analysis, different
racial or ethnic groups, and different
disabilities. In short, the commenters
suggested ways to use risk indices in
conjunction with the risk ratio for all of
the analysis required under
§ 300.647(b).
Discussion: To begin with, the
Department understands risk index to
mean the likelihood of a particular
outcome (identification, placement or
disciplinary removal) for an aggregate
population of children—such as all
children within a State, or all children
nationally—to which risk may be
compared. The Department is not aware
of, and no commenters provided, a
research basis for selecting a particular
magnitude of difference—such as one or
two percentage points—between racial
or ethnic subgroup risk and a risk index
that would allow the risk index to be
used as a measure of significant
disproportionality in a way that is not
arbitrary. That aside, LEAs must use extreme
caution to avoid actions based on race
or ethnicity that could violate Federal
civil rights laws and the Constitution.
Moreover, LEAs must ensure that the
requirements for individualized
decisions about evaluations, placement,
and disciplinary removals are properly
and fully implemented. Under IDEA, a child’s identification,
placement, and discipline are
determined through specific
individualized means. The Department
has determined that allowing or
requiring States to compare and control
for racial or ethnic group risk and an
overall risk index—that is, including in
the standard methodology measures that
would require States to adjust for, and
thereby artificially mandate, the overall
incidence of identification, placement,
or discipline—would create strong
incentives for impermissible quotas in
overall identification, placements, and
disciplinary removals. The Department
believes that restrictions that would
inhibit the ability of an evaluation team
to make eligibility determinations, a
placement team to make placement
decisions based on the child’s unique
needs, or an IEP Team to determine if
conduct subject to discipline was a
manifestation of the child’s disability,
would result in violations of IDEA
section 612(a)(3) (child find), section
614(a)–(c) (evaluation and reevaluation)
section 612(a)(5) (placement in the least
restrictive environment), or section
615(k) (disciplinary removals). As such, the Department believes that
creating an exception to a determination
of significant disproportionality based
on a comparison between racial or
ethnic group risk and a risk index, or
modifying the standard methodology to
include this use of the risk index, would
undermine the determinations required
under 618(d) and create strong
incentives to violate IDEA’s
requirements for identification,
placement, and disciplinary removals. The Department appreciates the
various suggestions for addressing
certain potential issues when using risk
ratios to identify LEAs with significant
disproportionality. In line with the
GAO’s recommendations, the
Department also believes that restricting
States to the risk ratio will foster greater
transparency, as well as comparability
between States, and thereby strengthen
the Department’s ability to evaluate
States’ implementation of IDEA section
618(d). To allow States to add
additional criteria—even if only a
second criterion—would reduce
comparability between States’
approaches while adding to the
complexity of the standard methodology
as a whole and creating additional
burdens. Changes: None.
Comments: Several commenters
requested that States be permitted to use
risk difference along with, or instead of,
risk ratios because it has a number of
advantages over the risk ratio for
measuring racial and ethnic disparities. First, commenters stated that risk
differences can be calculated even when
the comparison group has a risk level of
zero, and therefore the risk ratio cannot
be calculated. According to
commenters, the most serious racial
disparities are those in which only one
racial or ethnic group is subjected to the
harshest disciplinary actions; for this
reason, commenters supported the use
of risk difference to properly analyze
significant disproportionality in
suspensions and expulsions exceeding
10 days. Second, commenters argued that risk
differences could capture disparities in
LEAs that have very high rates of
restrictive settings and disciplinary
exclusion for all groups. Commenters
expressed their concerns that those
LEAs would be overlooked if risk ratios
alone are used. Third, as discussed elsewhere in this
section, commenters stated that risk
difference can ensure that significant
disproportionality would not be
triggered when incidence levels are very
low for all groups. Finally, commenters stated that risk
differences are easy to calculate,
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interpret, and use to compare LEAs.
These commenters suggested that the
Department define a range of acceptable
risk difference thresholds and review
each State’s thresholds for
reasonableness. The commenters also
expressed that, because risk differences
are simple to calculate and easy to
understand, the Department should not
find it difficult to review States’ risk
difference thresholds for
reasonableness. Further, commenters
suggested that, as most of the States
finding zero LEAs with significant
disproportionality use a risk ratio, the
preferences of States for risk ratios
should not prejudice the Department
against the use of risk difference in
addition to, or instead of, a risk ratio.
Discussion: The Department carefully
considered the optional use of a second
measure of significant
disproportionality, either instead of or
in addition to, the risk ratio. The
Department agrees that risk difference
has certain advantages that the risk ratio
does not. However, the Department also
believes that, at the present time, the
risk ratio also has advantages not shared
by the risk difference. First, as risk ratio method is widely
used by States, its strengths and
weaknesses are well known, as are the
approaches needed to address its
shortfalls (e.g., multiple years of data
and minimum n-sizes and minimum
cell sizes). While we agree that the risk
difference can be calculated when risk
in the comparison group is zero, and
may help States to avoid inappropriate
identification of LEAS with low
incidence rates, we believe that the
standard methodology, as a whole,
allows States to appropriately measure
racial and ethnic disparities in LEAs
experiencing these issues. Further,
while risk differences may identify
racial and ethnic disparities when LEAs
have high incidence rates, we believe
there are other provisions of IDEA
beyond section 618(d) that promote
appropriate practices to address those
high incidence rates, which we list
earlier in this section. Second, due to the widespread use of
risk ratio thresholds, the Department
anticipates that § 300.646(b), which
would require States to follow a
standard methodology, will create less
burden for States if the methodology
includes a more common measure of
racial and ethnic group disparity. Based
on the Department’s review of State
definitions of significant
disproportionality, as noted in the
NPRM, fewer than five States used risk
difference, while nearly 45 States used
some form of the risk ratio (e.g., risk
ratio, alternate risk ratio, weighted risk ratio), and 21 used the risk ratio
proposed in the Department’s standard
methodology.
Third, the States’ experience with risk
ratios provides the Department with
some historical knowledge of what risk
ratio thresholds have previously been
considered as indicative of significant
disproportionality. In the NPRM, we
noted that, of States utilizing a risk
ratio, 16 States used a risk ratio
threshold of 4.0, while seven States each
used thresholds of 3.0 and 5.0. This
history will help inform the
Department’s review of reasonableness.
With so few States utilizing risk
difference, this same history is not
available to the Department. For these
reasons, the Department considers the
risk ratio to be superior to risk
difference as the primary measure of
racial and ethnic disparities for the
standard methodology. Further, the Department does not
believe the benefits of the risk difference
outweigh the consequences. While the
risk difference method may serve to
clarify the significance of racial
disproportionality between LEAs with
identical risk ratios, its application
would still require the development of
a threshold of risk difference for
determination of significant
disproportionality. The use of two
different thresholds for significant
disproportionality is contrary to the
objective of promoting consistency and
transparency in how States determine
disproportionality, as recommended by
the GAO report. In addition, we believe
that the measures implemented in these
final regulations to promote consistency
and transparency also will lead to more
appropriate identification of significant
disproportionality and do not believe
that the low incidence of identification
in the past is a result of the risk ratio
method itself. Changes: None.
Comments: Two commenters asserted
that the weighted risk ratio is the most
accurate and effective measurement
because it allows the State to
standardize across LEAs that are very
different. These commenters argued
that, while the risk ratio is simple and
straightforward, the weighting of
findings using State data provides
standardization that makes
comparability across LEAs possible.
These commenters also argued that the
weighted risk ratio formula is not too
difficult for States to utilize Further,
commenters argued that the States
currently using a weighted risk ratio—
nearly half of all States—would be
prohibited from doing so under
proposed § 300.647(b), apparently
because of its complexity and lack of public understanding—rather than
specified weaknesses in the
methodology itself. Some commenters
suggested allowing States to calculate
significant disproportionality using
either the risk ratio method or the
weighted risk ratio method. One
commenter stated that the weighted risk
ratio ensures that two LEAs are treated
similarly if the risk for the racial or
ethnic group of interest is the same in
both LEAs, even if the racial
demographics in each LEA are different.
Other commenters, meanwhile,
supported regulations that would
disallow States’ use of the weighted risk
ratio. These commenters agreed that
weighted risk ratios add a high level of
complexity that makes the decision to
identify an LEA difficult for the
layperson to follow. These commenters
stated as well that weighted risk ratios
are not necessary if the alternative risk
ratio is available. One of these
commenters stated that it was important
for special education administrators to
be able to calculate current racial and
ethnic disparities independent from a
State report, which is based on prior
year data. A few commenters stated that
the use of the weighted risk ratio alone,
without adequate minimum n-sizes or
additional significance testing, would
result in many LEAs being identified as
having significant disproportionality
when the disproportionality is due only
to small numbers of children identified
with disabilities, placed in restrictive
settings, and disciplined. Some
commenters observed that the
Department’s proposal did not include
permission to use weighted risk ratio
but requested that the Department
explicitly prohibit its use. Discussion: As we noted in the
NPRM, with a weighted risk ratio, the
comparison group is adjusted by adding
different weights to each racial and
ethnic group, typically based on State-
level representation. The weighted risk
ratio method has the drawback of
volatility across years, similar to the risk
ratio, but does not support
straightforward interpretation as well as
the risk ratio does. Given that we proposed three
mechanisms to help States account for
risk ratio volatility—(1) the alternate
risk ratio, (2) the allowance for using up
to three consecutive years of data before
making a significant disproportionality
determination, and (3) the minimum n-
size and cell size requirements—the
Department previously determined that
the potential benefits of the weighted
risk ratio method were exceeded by the
costs associated with complexity and
decreased transparency. Although the
final regulations adopt additional
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flexibility, and potential variability,
through the requirement for a minimum
cell size, the Department continues to
believe that use of the weighted risk
ratio is not justified for the same
reasons.
While a number of States currently
use the weighted risk ratio method, the
Department believes that method fails to
provide LEAs and the public with a
transparent comparison between risk to
a given racial or ethnic group and risk
to peers in other racial or ethnic groups,
as the risk ratio and alternate risk ratio
methodologies are designed to do. We
believe that the final regulations, as
drafted, clearly disallow use of the
weighted risk ratio as part of the
standard methodology and that
additional clarification on this point is
not necessary. Changes: None.
Comment: A few commenters stated
that States should be encouraged to add
a test of statistical significance to the
standard methodology. Two
commenters requested that the
Department allow States to use
appropriate tests of statistical
significance to assess the statistical
significance of any preliminary result
produced through risk ratio analysis. Another commenter suggested that, if
the Department only allows States to set
a minimum n-size, it should allow
States to conduct a test of statistical
significance to determine if the risk ratio
is truly significant. Discussion: Statistical significance
testing is applicable only to samples
rather than population data, and
therefore is not an appropriate method
of determining significant
disproportionality in an LEA. As we
noted in the NPRM, States have access
to population data, including actual
counts of children identified with a
disability, placed into particular
settings, or subjected to a disciplinary
removal from placement. With this
information, States can simply calculate
whether an LEA’s risk ratio for a given
subgroup is different from the risk ratio
for a comparison group. Changes: None.
Comment: A commenter argued that,
when calculating a risk ratio, White
children would be a more appropriate
comparison group than ‘‘all other racial
and ethnic groups’’ as specified in the
definition of ‘‘risk ratio’’ in the
proposed § 300.647(a)(3) (now
§ 300.647(a)(6)). To help States make
use of this comparison, while ensuring
that White children are not precluded
from the States’ review for significant
disproportionality, the commenter
recommended that States be required to
calculate both the Department’s proposed risk ratio and a second risk
ratio where White children replace all
other racial and ethnic groups. The
commenter noted that the additional
data analysis and reporting burden
associated with the addition of this risk
ratio would be negligible. Another
commenter recommended that, in
addition to the risk ratio, the
Department allow States to compare all
racial or ethnic groups to the State risk
index for White children only, in order
to prevent States from identifying
significant disproportionality in LEAs
where risk for a given racial or ethnic
group is low.
Discussion: The Department
acknowledges that, in general, it may be
a common practice to utilize White
children as a comparison group when
examining data for racial and ethnic
disparities. However, for purposes of
IDEA section 618(d), it would be
inappropriate to use one method for
children of color with disabilities—a
comparison to White children—and a
separate method for White children in
which they are compared to all other
racial and ethnic groups. We do not find
it appropriate for one racial or ethnic
group to be treated differently from the
others in these regulations. Changes: None.
Categories of Analysis (§ 300.647(b)(3)
and (4)) Comment: One commenter stated that,
in one State, children with disabilities
are not categorized by impairment,
noting that IDEA does not require that
children be classified by their disability.
The commenter requested that, to
preserve this State’s current policy, the
Department revise proposed
§ 300.647(b)(3) to clarify that States
need only calculate risk ratios for
particular impairments if those States or
their LEAs identify children with
particular impairments. Discussion: The Department does not
believe that a revision to § 300.647(b)(3)
is necessary to allow a State that
currently does not classify children by
disability to continue in its current
practice. The standard methodology in
§ 300.647 does not require States to
classify children by impairment in order
to comply with the requirement to
identify and address significant
disproportionality. Rather, under
§ 300.647(b)(3), the State is required to
review those racial or ethnic groups
within LEAs that meet the State’s
population requirements, including a
minimum cell size. Because a State that
does not classify children by disability
would, in assessing LEAs for significant
disproportionality, have a cell size of
zero for each of the impairments enumerated under § 300.647(b)(3)(ii) for
all racial and ethnic groups and for all
LEAs, that State would not be required
to calculate risk ratios for any of the
impairments. Under § 300.647(b)(3)(i),
however, the State must calculate risk
ratios for the category of all children
with disabilities, by racial and ethnic
group.
Changes: None.
Comments: Several commenters
responded to Directed Question #3 in
the NPRM, which inquired whether the
Department should remove any of the
six impairments from, or add additional
impairments to, proposed
§ 300.647(b)(3)(ii). That section listed
the impairments that States must
examine in determining whether an
LEA has significant disproportionality
with respect to the identification of
particular impairments. One commenter responded that the
Department need not expand the list of
impairments because the remaining
impairments under IDEA section 602(3)
that could be added to those listed in
§ 300.647(b)(3)(ii) are low incidence,
and the qualifying factors for these are
so specific, that there is limited room for
varying interpretations that might lead
to significant disproportionality. Two
commenters recommended that all six
impairments included in proposed
§ 300.647(b)(3)(ii) remain if the
Department allows States to limit their
review of significant disproportionality
only to those racial and ethnic groups
where at least 10 children (or, as an
alternative, at least 15 children) have
been identified with that particular
impairment. One commenter asserted
that all impairments listed in proposed
§ 300.647(b)(3)(ii) should remain and
that the Department should further
include all of the impairments in IDEA
section 602(3), including those
impairments enumerated under IDEA
section 603(3)(B) that are applicable to
children, aged 3 through 9, who
experience developmental delays in
physical development, cognitive
development, communication
development, social or emotional
development, or adaptive development.
Another commenter also supported the
inclusion of developmental delay in
States’ review for significant
disproportionality. Two commenters recommended that
blindness, orthopedic impairment, and
hearing impairments be added to the list
of impairments in proposed
§ 300.647(b)(3)(ii). Discussion: The Department agrees
that it is unnecessary to require States
to examine the seven low-incidence
impairments listed in IDEA section
602(3) and in § 300.8 that were not
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included in proposed § 300.647(b)(3)(ii)
for significant disproportionality. Given
the low incidence of these impairments,
the Department continues to believe that
disproportionality based on race or
ethnicity will not be reliably identified
as systemic or otherwise indicative of
persistent underlying problems. Further,
given that the Department has not
previously required States to examine
these impairments, doing so now would
impose a new data analysis burden that
the Department does not believe is
necessary. For this same reason, the
Department declines to add to
§ 300.647(b)(3)(ii) blindness, orthopedic
impairment, hearing impairments, or
the developmental impairments
applicable to children aged three
through nine defined under IDEA
section 602(3)(B).
Changes: None.
Commenter: One commenter
recommended the use of an alternative
risk ratio method to capture the
disability categories in IDEA section
602(3). The commenter suggested that
the alternative risk ratio method be used
when a racial or ethnic group does not
meet a minimum population
requirement for any of the disability
categories. The commenter suggested
this approach to help address the
possible under-identification of hearing
loss. Discussion: Again, the Department
believes that it is unnecessary to require
States to examine the seven low-
incidence impairments listed in IDEA
section 602(3) that were not included in
proposed § 300.647(b)(3)(ii) for
significant disproportionality. Given the
low incidence of these impairments,
disproportionality based on race or
ethnicity may not be reliably identified
as systemic or otherwise indicative of
persistent underlying problems, and the
Department has not previously required
States to examine these impairments.
Nothing, however, would prevent a
State from examining low-incidence
disabilities for racial and ethnic
disparities—or for disproportionate
overrepresentation—if it chose to do so.
Moreover, while a State may choose to
review an LEA’s policies, procedures,
and practices for compliance with IDEA
requirements related to identification
and evaluation under its separate
general supervisory authority in IDEA
section 612(a)(22) or monitoring
authority in section 616, the
consequences set out in IDEA section
618(d)(2) and these regulations,
including mandating the use of
comprehensive CEIS, do not apply. Change: None.
Comments: One commenter
recommended that the Department exclude any of the six impairments from
a review for significant
disproportionality that were not part of
the research base informing the 2004
IDEA regulations related to significant
disproportionality in special education.
According to the commenter,
concerns regarding overrepresentation
in special education were limited to the
identification of intellectual disabilities,
specific learning disabilities, and
emotional disturbance. Discussion: We decline to make the
commenter’s requested change to
§ 300.647(b)(3). IDEA section 618(d) (20
U.S.C. 1418(d)) requires that States
examine LEAs for significant
disproportionality based on race and
ethnicity in the identification of
particular impairments. We believe
there is a sufficient statutory basis to
extend the requirement for States to
examine LEAs for significant
disproportionality to all of the
impairments included in IDEA section
602(3); however, the Department has
determined that, given the low
incidence of several of the listed
impairments, it may be difficult to
reliably identify significant
disproportionality with respect to these
impairments that is systemic or
otherwise indicative of persistent
underlying problems. Change: None.
Comments: One commenter
recommended that under proposed
§ 300.647(b)(3)(ii), States should not be
required to examine LEAs for significant
disproportionality in the identification
of children with specific learning
disabilities. This commenter noted that
some States have put in place a process
whereby children must receive certain
services—specifically, response to
intervention—prior to being identified
with specific learning disabilities. This
commenter suggested that the use of
evidence-based interventions has
reduced the number of children
requiring special education services. Discussion: The Department
appreciates the comment and agrees that
the provision of multi-tiered systems of
support, such as response to
intervention, can be useful and
important in serving children with
disabilities. At the same time, we note
that States and LEAs have an obligation
under §§ 300.304 to 300.311 to ensure
that the evaluation of children
suspected of having a disability is not
delayed or denied because of the
implementation of specific strategies or
interventions. Under § 300.307, States
must adopt criteria for determining
whether a child has a specific learning
disability. The criteria adopted by the
State: (1) Must not require the use of a severe discrepancy between intellectual
ability and achievement for determining
whether a child has an specific learning
disability; (2) must permit the use of a
process based on the child’s response to
scientific, research-based interventions;
and (3) may permit the use of other
alternative research-based procedures
for determining whether a child has a
specific learning disability. (34 CFR
300.307, OSEP Memorandum 11–07,
January 21, 2011).
We decline to revise
§ 300.647(b)(3)(ii) as suggested by the
commenter. In its 37th Annual Report to
Congress on the Implementation of the
Individuals with Disabilities Education
Act (2015) (37th IDEA Annual Report),
the Department noted that the
percentage of the resident population
ages 6 through 21 served under IDEA,
Part B, identified with specific learning
disabilities was 39.5 percent of children,
the highest of all impairments. The fact that specific learning
disabilities, as a category, has the
highest incidence of all the impairments
recognized by IDEA suggests that it may
be one of the most important disability
categories to review for significant
disproportionality. Moreover, given that
it is a high-incidence category, removing
specific learning disabilities from the
analysis may have the unintended effect
of increasing identification of this
impairment to minimize any appearance
of racial and ethnic disparities in the
identification of children with
impairments that are subject to
examination for significant
disproportionality. To prevent this
possibility and encourage the
appropriate identification of children
with disabilities, the Department
believes it best to continue to require
States to review LEAs for significant
disproportionality with respect to
specific learning disabilities. Changes: None.
Comments: Several commenters
recommended that the Department
remove autism from the list of
impairments under proposed
§ 300.647(b)(3)(ii) that States must
examine in LEAs for significant
disproportionality. Of these
commenters, one noted that autism
identification generally follows a
medical diagnosis. Several explained
that some States require that a medical
evaluation be conducted or a medical
diagnosis be considered before a child
can be identified with autism. Several
others generally noted that it is rare that
an LEA diagnoses a child as having
autism. As a result, one commenter
concluded, any over-identification of
autism may be attributable to a medical
professional in the LEA and not
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necessarily indicative of an issue in the
LEA itself. Another commenter noted
that, since a diagnosis of autism is not
under the control of the LEA, the LEA
would have no means or capacity to
remedy and correct a finding of
significant disproportionality.
Several other commenters stated that
a failure to provide children with
special education services after a
medical diagnosis of autism could result
in noncompliance with IDEA. Finally,
several commenters examined the
Department’s report—Racial and Ethnic
Disparities in Special Education: A
Multi-Year Disproportionality Analysis
by State, Analysis Category, and Race/ Ethnicity (2015)—and found that the
most egregious disparities with respect
to autism applied to White children.
These commenters believed that
requiring LEAs to address significant
disproportionality with respect to White
children was not the intention of IDEA. With respect to special education
eligibility determinations, a last
commenter stated that LEAs generally
do not make clinical diagnoses. Rather,
LEAs and schools are charged with
determining whether children meet
State and Federal criteria to be eligible
for special education and require
specialized instruction. Discussion: In its 37th Annual Report,
the Department noted that the
percentage of the resident population of
children with autism ages 6 through 21
served under IDEA, Part B, increased
markedly between 2004 and 2013.
Specifically, the percentages of three age
groups—ages 6 through 11, 12 through
17, and 18 through 21—that were
reported under the category of autism
were 145 percent, 242 percent, and 258
percent larger in 2013 than in 2004,
respectively. Given those increases, and to
encourage the appropriate identification
of children with disabilities, the
Department believes it best to continue
to require States to review LEAs for
significant disproportionality with
respect to autism. We further note that, even if
disparities in an LEA’s identification of
autism tend to result from disparities in
the medical diagnosis of autism, it may
be the case that the latter disparities are
due to factors such as unequal access to
medical care, which may result in
children not being referred for an
evaluation. In this instance, the broader
use of developmental screening for
young children—which may be
supported using comprehensive CEIS—
may help to identify children in other
racial or ethnic groups that may
currently be underrepresented among
children with impairments such as autism that may follow a medical
diagnosis.
Last, we disagree with the
commenters’ suggestion that IDEA
section 618(d) was not intended to
address significant disproportionality
that impacts White children. The plain
language of IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to
identify significant disproportionality,
based on race or ethnicity, without any
further priority placed on specific racial
or ethnic groups. For that reason, the
Department believes that the statute
directs States to address significant
disproportionality impacting all
children.
Changes: None.
Comments: A number of commenters
recommended that the Department
remove other health impairments (OHI)
from the list of impairments under
proposed § 300.647(b)(3)(ii) that States
must examine for significant
disproportionality. Of these, some
commenters noted that some States
require that a medical evaluation be
conducted, or a medical diagnosis be
considered, before a child is determined
to have OHI. Still others noted that it is
rare for an LEA to diagnose a child with
OHI and that failure to provide children
with special education services when an
evaluation indicates OHI could result in
non-compliance with IDEA. One
commenter stated that, since a diagnosis
of OHI is not under the control of the
LEA, the LEA would have no means or
capacity to remedy and correct a finding
of significant disproportionality.
Finally, some commenters stated that
the Department’s data show that the
most egregious disproportionality with
respect to OHI applies to White
children, but requiring LEAs to address
significant disproportionality with
respect to White children was not the
intention of IDEA.
With respect to special education
eligibility determinations, a last
commenter stated that LEAs generally
do not make clinical diagnoses. Rather,
LEAs and schools are charged with
determining whether children meet
State and Federal criteria to be eligible
for special education and require
specialized instruction.
Discussion: In its 37th Annual Report,
the Department noted that the
percentage of the resident population
with OHI ages 6 through 21 and served
under IDEA, part B, increased markedly
between 2004 and 2013. Specifically,
the percentages of three age groups
reported—ages 6 through 11, 12 through
17, and 18 through 21—were 45 percent,
624 percent, and 104 percent larger in
2013 than in 2004, respectively. Given recent increases in the
percentage of children identified with
OHI, and to encourage the appropriate
identification of children with
disabilities, the Department believes it
best to continue to require States to
review LEAs for significant
disproportionality in OHI. Also, we note
that, even if disparities in the
identification of OHI tend to result from
disparities in the medical or clinical
diagnosis of OHI, it may be the case that
the latter disparities are due to factors
such as unequal access to medical care,
which may result in children not being
referred for an evaluation. In this
instance, the broader use of
developmental screening for young
children—which may be supported
using comprehensive CEIS—may help
to identify children in other racial or
ethnic groups that may currently be
underrepresented in disability
categories, like OHI, that may follow a
medical diagnosis. Last, we disagree with commenters’
suggestion that IDEA section 618(d) was
not intended to address significant
disproportionality that impacts White
children. The plain language of IDEA
section 618(d) requires States to identify
significant disproportionality, based on
race or ethnicity, without any further
priority placed on specific racial or
ethnic groups. For that reason, the
Department believes that the statute
directs States to address significant
disproportionality impacting all
children. Changes: None.
Comment: Several commenters
responded to Directed Question #4 of
the NPRM, which inquired whether the
Department should continue to require
States to review LEAs for significant
disproportionality based on race or
ethnicity in the placement of children
with disabilities inside the regular
classroom between 40 percent and 79
percent of the day. Multiple commenters suggested that
the Department continue the
requirement. Of these commenters, a
few noted that this type of placement
data is already collected by States and
might be helpful in addressing other
issues of disproportionality. One
commenter advocated for leaving this
placement in the regulations and noted
that 50 percent of the day is the
equivalent of lunch, recess, gym,
morning meeting, and art class. In the
commenter’s opinion, placement in the
classroom only 50 percent of the day is
a significant amount of isolation, and
may mean a potential lack of access to
the general education curriculum. One commenter stated that research
shows that almost every child of color
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with disabilities who takes an alternate
assessment based on alternate academic
achievement standards is segregated
from their peers for all or most of the
day, and that the lack of integration in
the regular classroom is associated with
lower performance on State general
assessments. The commenter suggested
that this information supports the
continued inclusion of placement inside
the regular classroom between 40
percent and 79 percent of the day in
States’ review for significant
disproportionality.
Conversely, a few commenters
expressed their preference that the
Department not require States to review
for significant disproportionality
placement in the regular classroom
between 40 and 79 percent of the school
day. These commenters noted that data
regarding this placement provides little
information about the severity of a
child’s disability, the classroom
supports the child receives, or the
quality of the services in that setting.
Many commenters noted that 40 percent
to 79 percent of the school day covers
a wide range that encompasses
anywhere from 2.4 to 4.7 hours. These
commenters stated that while only 2.4
hours in the regular classroom may be
more restrictive, 4.7 hours may not be;
therefore, this placement is difficult to
categorize. Several commenters noted that it is
generally meaningless to draw
conclusions about the percentage of
time a child is in a regular class and
whether it means the LEA has provided
services in the least restrictive
environment. One commenter asserted that one
State may have difficulty collecting data
regarding this placement, as the State
reports placement using different
percentages of time spent in the regular
classroom (i.e., 20 percent or less, less
than 60 percent and greater than 20
percent, 60 percent or more). The
commenter expressed concern that
requiring States to change their
placement categories would require
changes to State special education
regulations, resulting in significant
increases in paperwork and resource
expenditures. Additionally, several commenters
stated that reporting additional
placement data will be a burden for
LEAs and will not provide useful
information. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to
examine data to determine if significant
disproportionality based on race and
ethnicity is occurring in the State and
LEAs of the State with respect to the
placement of children with disabilities. To meet their general data reporting
obligations under IDEA section 618(a)
(20 U.S.C. 1418(a)), States currently
submit to the Department a count of
children with disabilities, disaggregated
by race and ethnicity, who are placed
inside the regular classroom between 40
percent and 79 percent of the day,
inside the regular classroom less than 40
percent of the day (i.e.,
inside self-
contained classrooms) and inside
separate settings (i.e., separate schools
and residential facilities). OSEP
Memorandum 08–09 and FILE C002,
OMB Control Nos. 1875–0240 and
1820–0517. Consistent with this
reporting requirement, the Department
initially proposed requiring States to
review each of these three placements
for significant disproportionality, as
racial and ethnic disparities in these
placements may suggest that some
children with disabilities have less
access to the least restrictive
environment to which they are entitled
under IDEA section 612(a)(5) (20 U.S.C.
1412(a)(5)). The Department did not
include in the NPRM any requirements
that States expand the scope of their
data collection with respect to
placement.
However, the Department asked
Directed Question #4 to ascertain
whether States and LEAs should be
required to determine whether there is
significant disproportionality in LEAs
with respect to placement in the regular
classroom between 40 percent and 79
percent of day. After reviewing the
perspectives shared by commenters, the
Department agrees to no longer require
that States determine whether
significant disproportionality, by race or
ethnicity, is occurring within an LEA
with respect to placement in the regular
classroom between 40 percent and 79
percent of the day. The Department
acknowledges that there could be
significant qualitative differences in the
opportunities for interaction with
nondisabled peers for students at the
lower end of this range and students at
the upper end. While the Department
emphasizes that placement decisions
must be individualized, we also
recognize that, given these differences,
for students on the lower end of this
range, there could be unintended
incentives to improperly place them in
settings where they spend less
classroom time with nondisabled
students rather than more. Given the
qualitative differences and the broad
range of class time addressed in this
category, we no longer believe that
addressing significant
disproportionality in LEAs with regard to this placement category is
appropriate.
The Department appreciates the
comments supporting the proposed
requirement and we recognize that an
examination of the placement of
children with disabilities outside of the
regular classroom more than 40 percent
of the day and less than 79 percent of
the day could, in some limited cases,
help to highlight systemic issues. In the
Department’s view, on balance, the
continued use of this category for
determining significant
disproportionality is not warranted. Changes: The Department has revised
proposed § 300.647(b)(4) to remove the
requirement that States identify
significant disproportionality with
respect to the placement of children
with disabilities ages 6 through 21,
inside a regular class more than 40
percent of the day and less than 79
percent of the day. Comment: One commenter expressed
concern that the standard methodology
requires States to examine risk ratios for
each placement type separately, rather
than recognizing their
interconnectedness. The commenter
suggested, for example, that an LEA
could evade a finding of what the
commenter calls ‘‘significant
discrepancy’’ by moving children from
partial inclusion to a substantially
separate classroom. The commenter
stated that this would cause the LEA to
not be identified with ‘‘significant
discrepancy’’ with respect to the
number of children being educated in
partially inclusive settings. The
commenter concluded that this
approach would not create the right
incentives for LEAs. Discussion: We appreciate the
commenter’s concern. The Department
has heard from several commenters
regarding our initial proposal to require
States to review for significant
disproportionality the placement of
children with disabilities in the regular
classroom for no more than 79 percent
of the day and no less than 40 percent
of the day. After reviewing the
comments, we agree that this placement
covers too broad a range of hours within
the school day to help States to identify
significant disproportionality with
respect to placement. In considering this
commenter’s perspective, we find it may
also be the case that, to avoid a
determination of significant
disproportionality with respect to
placement in the regular class for no
more than 79 percent of the day and no
less than 40 percent of the day, LEAs
may have an incentive to shift children
with disabilities from this more
inclusive placement to self-contained
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classrooms or separate schools. With
this in mind, the Department will
remove the proposed language requiring
States to review LEAs, or their racial or
ethnic groups, for significant
disproportionality with respect to
placement in the regular classroom for
no more than 79 percent of the day and
no less than 40 percent of the day from
§ 300.647(b)(4). With this change, the
Department has narrowed States’ review
of significant disproportionality to the
most restrictive placements, including
self-contained classrooms, separate
schools, and residential facilities. We
believe that § 300.647(b)(4), as revised,
encourages LEAs to focus on placing
children in the proper setting by
requiring them to analyze only the most
significant removals from the regular
classroom.
Changes: As discussed above, the
Department has revised proposed
§ 300.647(b)(4) to remove the
requirement that States identify
significant disproportionality with
respect to the placement of children
with disabilities ages 6 through 21,
inside a regular class more than 40
percent of the day and less than 79
percent of the day. Comment: Several commenters noted
that the Department should not expand
data collection regarding
disproportionality in placements as
discretion regarding placement is not
entirely within the hands of the LEA.
Instead, these commenters asserted,
placement involves difficult decisions
by IEP Teams, including parents, that
can change significantly from year to
year (and sometimes throughout the
year). The commenters added that the
only way to address significant
disproportionality would be to change a
child’s educational placement, which by
law is the decision of an IEP Team that
includes the parents. We interpreted
these comments to refer to the
requirements of § 300.116(a)(1), which
specifies that placement is to be
determined by a group of persons,
including the parents, and other persons
knowledgeable about the child. One
commenter expressed concern that
LEAs will stop thinking about the
individual needs of the child and
instead include them in regular classes
to avoid a determination of significant
disproportionality. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) explicitly requires States
to review LEAs for significant
disproportionality based on race and
ethnicity with respect to placement,
and, when significant disproportionality
is identified, to (1) require LEAs to
undergo a review and, if appropriate,
revision of policies, practices, and procedures; (2) publicly report on any
revisions; and (3) reserve 15 percent of
their IDEA Part B funds for
comprehensive CEIS. This statutory
language is consistent with the mandate
that all children with disabilities receive
special education and related services in
the least restrictive environment. (IDEA
section 612(a)(5) (20 U.S.C. 1412(a)(5))).
When LEAs have significant
disproportionality with respect to
placement, the LEA must review its
policies, practices, and procedures to
ensure that the policies and procedures
conform with IDEA requirements and
that the practice of placement teams in
implementing these policies and
procedures is also consistent with
IDEA—such as involving parents in
placement decisions, and ensuring
placement decisions are made in
conformity with least restrictive
environment requirements. (34 CFR
300.114 and 116(a)(1)). In any case,
these regulations do not include an
expansion of data collections to support
State review for significant
disproportionality in placement. In
Question 14 of OSEP Memorandum 08–
09 (July 28, 2008), the Department
clarified that States had an obligation to
use the data collected for reporting
under IDEA section 618 and must, at a
minimum, examine data for three of
IDEA section 618 reporting categories:
Children who received educational and
related services in the regular class no
more than 79 percent of the day and no
less than 40 percent of the day, children
who received special education and
related services in the regular class for
less than 40 percent of the day, and
children who received special education
and related services in separate schools
and residential facilities. However, as
we note in this section of this
document, the Department is revising
proposed § 300.647(b)(4) to no longer
require States to review LEAs for
significant disproportionality with
respect to placement in the regular class
no more than 79 percent of the day and
no less than 40 percent of the day.
Changes: None.
Comment: Several commenters
expressed that it is worth noting how
much time a child spends in a self-
contained classroom as it is a unique
placement.
Discussion: The Department agrees
and has retained the requirement that
States review LEAs for significant
disproportionality with respect to
placement in the regular classroom less
than 40 percent of the day. In general,
when children spend less than 40
percent of the day in the regular
classroom, the Department considers most of these children to be placed in
self-contained classrooms.
Changes: None.
Comment: One commenter noted that
the populations reviewed under
proposed § 300.647(b)(3) do not align
with the populations reviewed under
proposed § 300.647(b)(4). The
commenters specifically noted that none
of the subsections under § 300.647(b)(4)
reference the six specific impairments
enumerated under § 300.647(b)(3)(ii).
The commenter also noted that the two
provisions include differences in the
ages of the children reviewed. The
commenter requested that the
Department revise both provisions so
that the populations reviewed for
significant disproportionality are
consistent across the review of
identification, placement, and
discipline. Discussion: In OSEP Memorandum
08–09, the Department previously
provided guidance on the data that
IDEA section 618(d) requires States to
examine to determine if significant
disproportionality based on race and
ethnicity was occurring with respect to
the identification, placement, or
discipline of children with disabilities.
This data is consistent with that already
required of States to meet their reporting
obligations under IDEA section 618(a),
and which were established, following
notice and comment, in OMB-approved
data collections 1875–0240 and 1820–
0517. FILE C002, 2013. As we noted in
the NPRM, the Department intentionally
designed § 300.647(b)(3) and (4) to
mirror the guidance previously
provided in OSEP Memorandum 08–09,
and current data collection
requirements, so as not to introduce
confusion or add unnecessary burden. Changes: None.
Comments: Various commenters
requested that the Department extend
the list of placements that States must
review to determine whether significant
disproportionality based on race or
ethnicity is occurring within their
States. Several commenters requested that
the Department require States to review
LEAs for significant disproportionality
in the placement of children in hospital,
homebound and correctional settings, as
well as private schools, if they include
more than 10 children. Several
commenters specifically argued that
children with disabilities in correctional
education programs should be included,
generally, in the calculations for
significant disproportionality. Commenters reported that, according
to advocates and attorneys, the number
of children with disabilities placed in
homebound or tutoring programs—and,
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as a consequence, provided with only
one or two hours of instruction a day—
is increasing due to unaddressed
disability-related behaviors in school
and efforts to reduce the use of
suspension and expulsion. In many
cases, according to the commenters, no
attempt is made to provide these
children with supplementary aids and
services in less restrictive settings. The
commenters stated that these practices
likely have a greater impact on low-
income families and children of color
and concluded that the need to review
this low-incidence placement for
significant disproportionality is worth
the risk of false positive identification of
LEAs.
Further, commenters stated that LEAs
play a role in the placement of children
with disabilities in correctional facilities
through the use of school-based arrests
and juvenile justice referrals. One
commenter clarified that States need to
answer the question of whether children
with disabilities were receiving special
education services and supports in
correctional facilities and whether there
is significant disproportionality in those
placements. Discussion: The Department
continues to believe that it is
inappropriate to require States to
examine placement in correctional
facilities, or in homebound or hospital
settings, given that LEAs generally have
little, if any, control over a child’s
placement in those settings. Further,
given that the Department has not
previously required States to examine
data to determine if significant
disproportionality is occurring in these
placements, a new requirement that
States examine these placements in
LEAs would represent a new data
analysis burden that the Department
does not believe is warranted. Change: None.
Comments: A commenter requested
that the Department require States to: (1)
Report the number and proportion of
inmates in correctional facilities within
the State who have been identified as
children with disabilities and are
receiving special education services,
and (2) make a determination of
significant disproportionality, by
disability status, with respect to
placement in correctional facilities. Discussion: We decline to require
States to take either action. First, States
already report to the Department counts
of children with disabilities in
correctional facilities as part of IDEA
Part B Child Count and Educational
Environments Collection. OMB Control
No. 1875–0240 and File C002, 2013.
Further, IDEA section 618(d) (20 U.S.C.
1418(d)) explicitly requires States to collect and examine data to identify
significant disproportionality by race
and ethnicity in the LEAs of the State.
Insofar as correctional facilities are not
constituted as LEAs in the State, IDEA
section 618(d) does not require States to
conduct a significant disproportionality
analysis there, and it would be an
inappropriate expansion of the statutory
requirement to mandate that analyses.
However, to the extent that the
educational programs in specific
correctional facilities or systems are
constituted as LEAs, States are required
under IDEA to assess whether there is
significant disproportionality by race
and ethnicity whenever the populations
are of sufficient size.
Changes: None.
Comment: One commenter requested
that the Department require States to
measure disparities in placement within
separate schools for children who are
blind and children who are deaf. (0221,
0227). The commenter stated that these
schools often have separate sub-
campuses or separate residential
placements and academic tracks for
children with multiple disabilities, and
that is likely that children of color with
disabilities are at greater risk of
placement into these sub-campuses. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires SEAs to collect
and examine data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State or the LEAs of the State.
Accordingly, unless a separate school is
an LEA in its own right, it will not be
reviewed for significant
disproportionality. Further, as we have stated elsewhere
in this document, a State must annually
collect and examine data to determine,
using the standard methodology in
§ 300.647, if significant
disproportionality is occurring in LEAs
that serve only children with
disabilities. However, we have clarified
in § 300.646(e) that LEAs that serve only
children with disabilities are not
required to reserve IDEA Part B funds
for comprehensive CEIS. Changes: None.
Comment: One commenter expressed
concern that disciplinary removal data
may not be collected consistently. The
commenter stated that proposed
§ 300.647(b)(4) allows States to either
compare rates for children with
disabilities to rates for nondisabled
children within an LEA or compare
among LEAs for children with
disabilities in the State. A second commenter requested that
the Department clarify whether a State
might use the same calculation to
determine significant disproportionality with respect to disciplinary removal
that it currently uses to identify
significant discrepancy for purposes of
APR/SPP Indicator 4. The commenter
added that the State currently compares
children with disabilities to children
without disabilities within an LEA, and
does not make comparisons between
children with disabilities across LEAs.
Discussion: We appreciate the
comments seeking to interpret or
recommend the comparisons required
under § 300.647(b)(4). This provision
does not require, nor does it allow,
States to compare children with
disabilities to children without
disabilities within an LEA or across
LEAs for the purpose of identifying
significant disproportionality. Rather,
§ 300.647(b)(4) requires States to
compare children with disabilities in
one racial or ethnic group to children
with disabilities in all other racial
groups within an LEA. When reviewing
a racial or ethnic group within an LEA
with a comparison group that does not
meet the State’s population
requirements, the State will compare
children with disabilities in one racial
or ethnic group to children with
disabilities in all other racial or ethnic
groups within the State. Moreover, we note that unlike the
language in IDEA section 618(d), the
language in section 612(a)(22) expressly
provides for an examination of data for
significant discrepancies (in the rates of
long-term suspensions and expulsions
of children with disabilities) among the
LEAs in the State or compared to rates
of nondisabled children in those LEAs.
Thus, Congress knew how to require
comparisons and expressly did so in
IDEA section 612(a)(22), but not in
sections 618(d), which is the subject of
these regulations. Change: None.
Comments: One commenter suggested
that the Department remove from
proposed § 300.647(b)(4)(vi), (vii) and
(viii) all mention of in-school
suspensions, as the term is not defined
and the implementation of in-school
suspension varies greatly from LEA to
LEA. Discussion: We generally expect that
States will review LEAs for significant
disproportionality using the same IDEA
section 618 data reported to the
Department. Under the IDEA Part B
Discipline Collection, in-school
suspension is defined as ‘‘instances in
which a child is temporarily removed
from his/her regular classroom(s) for
disciplinary purposes but remains
under the direct supervision of school
personnel, including but not limited to
children who are receiving the services
in their IEP, appropriately participate in
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the general curriculum, and participate
with children without disabilities to the
extent they would have in their regular
placement. Direct supervision means
school personnel are physically in the
same location as students under their
supervision.’’ OMB Control No. 1875–
0240; Data Accountability Center, 2013.
Change: None.
Comments: A few commenters
requested that the Department modify
the proposed regulations to require
States to collect and analyze data to
determine if significant
disproportionality by English language
proficiency or gender is occurring with
respect to the identification, placement,
or discipline of children with
disabilities. These commenters argued
that IDEA provides the Department with
authority to require States to submit
demographic data on children with
disabilities beyond race and ethnicity.
Some of these commenters stated that
the ability to disaggregate and cross-
tabulate data is essential to
understanding disparities in treatment
between subgroups of children. One
commenter noted that, according to the
NPRM, English Learners are at greater
risk for being disproportionately
identified as children with a disability.
This commenter stated that there are
other demographic factors—beyond race
and ethnicity—that should be
considered when evaluating significant
disproportionality across identification,
placement, and discipline, including
socioeconomic and linguistic status. A few commenters cited research
suggesting that school-age boys are over-
identified as having disabilities, while
school-age girls are under-identified. A
last commenter stated that gender
deserved heightened attention,
especially as it relates to identification
for autism and emotional disturbance. Discussion: IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to collect
and examine data to determine whether
significant disproportionality based on
race and ethnicity is occurring with
respect to the identification, placement,
and discipline of children with
disabilities in the State or the LEAs of
the State. The Department believes that
requiring, or permitting, analysis for
significant disproportionality based on
sex, English language proficiency, or
socioeconomic status is beyond the
scope of IDEA section 618(d) and
inappropriate for these regulations.
Accordingly, the Department will only
require States to identify significant
disproportionality based on race and
ethnicity and will not require States to
expand their review to include
significant disproportionality based on
factors such as sex, English language proficiency, or socioeconomic status. As
with other areas of review, there is
nothing in IDEA that would prevent
review of data for significant
disproportionality based on factors such
as sex or English language proficiency.
In addition, States may choose to review
policies, procedures, and practices of an
LEA for compliance with IDEA
requirements under its general
supervisory authority in IDEA section
612(a)(11) or monitoring authority in
section 616; however, the consequences
of a determination of significant
disproportionality based on other
factors not set out in these regulations—
e.g.,
sex or English language
proficiency—may not include
mandating the use of comprehensive
CEIS as set out in IDEA section
618(d)(2) and these regulations. Changes: None.
Comments: A large number of
commenters offered perspectives as to
whether children ages three through five
should be included in States’ review for
significant disproportionality in the
identification of children as children
with disabilities and in the
identification of children as children
with a particular impairment. Several commenters expressed that it
is inappropriate to consider ages three
through five in a determination of
significant disproportionality, as some
LEAs are not responsible for early
intervention. One commenter stated that
data used to identify significant
disproportionality is also used in
Indicators 9 and 10 of the SPP/APR, in
which States have been instructed to
use data only on children ages 6 through
21. The commenter requested that the
age ranges used to identify
disproportionate representation under
IDEA section 612(a)(24) (20 U.S.C.
1412(a)(24)) and those used to identify
significant disproportionality under
IDEA section 618(d) (20 U.S.C. 1418(d))
remain consistent. Another commenter
noted that the proposed regulations
require States to report data on three
through five year olds that is not
currently reported. This commenter
noted that States cannot calculate data
regarding placement for children ages
three through five because there are no
peers in the regular classroom to
compare the numbers. Two commenters
noted that most States do not have a
data collection mechanism to make
determinations of whether significant
disproportionality, based on either
identification or discipline, for children
ages three and four, is occurring. These
commenters urged the Department to
eliminate the requirement to determine
significant disproportionality for three
and four year olds. Another commenter built on this argument, stating that, in
a State without universal preschool, a
majority of the children enrolled in
public preschool are children with
disabilities ages three to five. The
commenter stated that this
disproportional loading of preschool
children into the analysis will result in
the identification of nearly all of one
State’s small regional elementary LEAs.
One commenter suggested that the
Department require States to review
LEAs for significant disproportionality
with respect to identification only
among children age 6 through 21. Other
commenters noted that the inclusion of
preschool-aged children is problematic
because, without universal preschool,
there is no reliable method for
determining the total population of
children ages three through five and,
therefore, no appropriate denominator
for the risk calculation. One commenter
noted that, because preschoolers
without disabilities do not have the
same guarantee of a free appropriate
public education as their peers with
disabilities, States would have to use
general census data, rather than
enrollment, to identify the population of
three and four year olds for purposes of
determining significant
disproportionality. In one State,
according to one commenter, the State
is the LEA responsible for the education
of children with disabilities ages three
through five. Given this context, the
commenter expressed concern that the
requiring States to review ages three
through five for significant
disproportionality will create a
disincentive to offer non-mandated
early intervention programs. Conversely, several commenters
suggested that the Department require
States to review the identification of
three through five year old children
with disabilities only when there is a
valid comparison or reliable baseline
group within the public school. A number of commenters generally
supported the Department’s proposal to
lower the age range for the calculation
of disproportionality for identification
and discipline from ages 6 to 21 to ages
3 to 21. Commenters noted that
lowering the age limit of each State’s
review of significant disproportionality
in both identification and discipline is
an important step in addressing the
importance of the preschool years, and
focusing attention on early childhood
discipline. Discussion: The Department has
previously issued guidance explaining
which specific disability categories,
types of discipline removals, and
placements that States must review for
significant disproportionality based on
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race and ethnicity under IDEA section
618(d). OSEP Memorandum 08–09, July
28, 2008. This guidance included only
those identification categories,
disciplinary removals, and
placements—as well as the age ranges to
be reviewed for each—that were
consistent with the data collection that
States submit to the Department each
year to satisfy their reporting obligations
under IDEA section 618(a) (20 U.S.C.
1418(a)). OMB Control Nos. 1875–0240
and 1820–0517 and File C002, 2013. At
present, States submit to the Department
data on children identified with any
disability, autism, intellectual disability,
emotional disturbance, specific learning
disabilities, other hearing impairments,
speech and language impairment for
ages 3 through 21, and data on
discipline removals for children ages 3
through 21.
It was the Department’s intention to
align the proposed regulations, to the
extent possible, with IDEA section 618
data collection requirements so as to
avoid any new data collection burden
and any new data analysis burden on
the States. At the same time, however,
we must balance our desire to minimize
burden with our interest in ensuring
that children are not mislabeled. As this
may be especially critical for young
children, we agree with commenters
that including children ages three
through five is a meaningful step in
recognizing the importance of preschool
and early childhood education. To that end, the Department will
maintain the requirement for States to
examine populations age 3 through 21,
for purposes of significant
disproportionality due to identification.
We also agree, however, that the
inclusion of children ages three through
five in the State’s review for significant
disproportionality—with respect to the
identification of disabilities and
impairments—may create some
complications or additional burden
related to data collection and
comparison. We acknowledge, for
example, that some LEAs do not yet
provide universal preschool, making a
determination about the total
population of children ages three
through five more difficult. We also
recognize that this collection would not
correspond with current Indicators 9
and 10 of the SPP/APR, which focus on
children ages 6 through 21. As it is our expectation that States
will use the same IDEA section 618 data
reported to the Department to examine
LEAs for significant disproportionality,
we anticipate that States will use their
IDEA, Part B child count data (rather
than Federal census data) to examine
significant disproportionality for children ages 3 through 21.
Additionally, to provide States more
time to modify State analyses and
consider how to identify and address
factors associated with significant
disproportionality in children with
disabilities ages three through five, the
Department will delay the requirement
for including children ages three
through five in their examination of
significant disproportionality—with
respect to the identification of
disabilities and impairments—until July
1, 2020, in anticipation of more
widespread provision of preschool
programs in the future.
We disagree that States do not have
data collection procedures to review
LEAs for significant disproportionality
due to discipline for populations ages 3
through 21, as States are currently
required to collect data for purposes of
IDEA section 618(a). For that reason, we
will leave unchanged the requirement
that States examine populations ages 3
through 21 for purposes of identifying
significant disproportionality due to
discipline.
Finally, we disagree that requiring the
review of children ages three through
five for significant disproportionality
will create a disincentive for States or
LEAs to offer non-mandated early
intervention programs. We believe that
early education and early intervention
can have a number of salutary effects—
not least being the reduced need for
later, more intensive services—that
serve as ample incentive for States to
invest in these programs. Moreover,
even in those instances in which States,
not LEAs, are responsible for the
provision of early intervention, the
benefits of ensuring that this population
is not subject to significant
disproportionality outweigh any
potential disincentives. Therefore, we
will delay the inclusion of children ages
three through five in the review of
significant disproportionality with
respect to the identification of children
as children with disabilities, and with
respect to the identification of children
as children with a particular
impairment, until July 1, 2020.
Changes: None.
Comments: Several commenters
suggested that the Department allow
States to use a single factor analysis and
consider the total disability population
when calculating disproportionality
with respect to placement. We
understood these comments to suggest
that the Department allow States to
identify LEAs with significant
disproportionality based on the extent
to which race or ethnicity is predictive
of a child’s placement. Discussion:
As we discussed in
Under-Identification of Children with
Disabilities by Race and Ethnicity, the
Department interprets IDEA section
618(d) (20 U.S.C. 1418(d)) to require
States to identify significant
disproportionality based on race and
ethnicity, irrespective of the causes of
the disparity. The statute anticipates
that the investigation of the causes of
the disparity will take place after the
significant disproportionality has been
identified, as part of the implementation
of the statutory remedies provided for
under IDEA section 618(d)(2) (20 U.S.C.
1418(d)(2)). For this reason, we decline
to allow States to identify LEAs with
significant disproportionality based on
the extent to which the State believes
race or ethnicity may predict the
placement of a child with a disability. Changes: None.
Comments: Several commenters
offered perspectives on the
requirements for States to review LEAs
for significant disproportionality with
respect to disciplinary removals. A number of commenters
recommended that the Department
eliminate the requirement to calculate
disciplinary removals of 10 days or
fewer, both in-school and out-of-school,
in proposed § 300.647(b)(4)(iv)–(vii). Of
these, some commenters suggested that
the requirement itself is excessive and
punitive. Some commenters suggested
that schools need some flexibility to
manage behavior. These short-term
removals, other commenters stated,
respond to behaviors that are best
managed through IEPs and are typically
not as serious as the behaviors that give
rise to removals of more than 10 days.
Still other commenters stated that the
requirement hampers school officials’
ability to manage behavior, indicating
that LEAs may feel constrained in their
options for short-term removals if
removals of fewer than 10 days and
removals of 10 days or more are treated
in the same way in the significant
disproportionality calculation. In
addition, these commenters stated that,
by not requiring the review of short-
term removals, the Department would
enable States to focus more on the
disproportionate results for schools
placing children in disciplinary settings
more than 10 days, which constitutes a
change of placement. Some commenters recommended
removing the requirement for
calculating total disciplinary removals
under proposed § 300.647(b)(4)(viii) so
as not to double count removals. The
commenter also stated that it is unfair
to treat LEAs that have a few short-term
suspensions where behaviors are
resolved through changes in IEPs in the
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same way as LEAs that have repeated
removals of more than 10 days and
make no changes in IEPs or services for
the children involved.
One commenter suggested that, to
reduce confusion, the Department
should rewrite proposed § 300.647(b)(4)
to separate disciplinary removals from
educational placements and place them
under a heading of discipline. The
commenter stated that data must be
collected on exclusionary removals of
all students with disabilities, regardless
of the restrictiveness of the setting in
which they are served. One commenter expressed concern
that, by including the entire range of
disciplinary options in the required risk
ratio calculations—from alternative
education settings to removals by a
hearing officer—the Department will
force schools to constantly watch their
data for quota targets for each type of
discipline because there are no
acceptable options not subject to the test
for significant disproportionality. Finally, one commenter requested
that only discretionary discipline
actions be monitored for significant
disproportionality. Discussion: The Department
appreciates all of these comments. We
disagree, however, with several and
believe that many of these comments
misstate either the discipline
requirements or the requirements in
these regulations. First, it is not clear to
the Department that determining
whether significant disproportionality
exists for suspensions of any length in
any way burdens the overall ability of
LEAs or schools to manage behavior.
Further, § 300.646(c) is intended, in
part, to identify systemic issues in
discipline practices, whether
discretionary or not, in order to correct
them and improve the ability of schools
to manage behavior overall. Examining
LEAs for significant disproportionality
in discipline gives State and local
school officials the opportunity to see
where policies, procedures and
practices should be changed—to
determine, for example, whether
schools might do more to manage
behavior through IEPs, services, and
supports which could be used to
address or reduce both short-term and
long-term suspensions. We especially
note that under IDEA section 615(k) and
the current regulations at §§ 300.530
and 300.531, there is significant
involvement by the IEP Team members
in making a range of decisions related
to discipline including manifestation
determinations and interim alternative
settings for services. Likewise, in 2016,
the Department released guidance to
clarify that, while IDEA section 615(k)(1)(B) (20 U.S.C. 1415(k)(1)(B))
authorizes school personnel to remove
from their current placement children
who violate a code of student conduct,
that authority in no way negates the
obligation of schools to provide
behavioral supports to children with
disabilities as needed to ensure FAPE.
OSEP Dear Colleague Letter, August 1,
2016.
We further disagree that collecting
discipline data in any way leads to the
punitive treatment of LEAs. When we
published the NPRM, States already
were required under § 300.646(a) to
determine whether there was significant
disproportionality in disciplinary
removals of fewer than 10 days,
disciplinary removals of more than 10
days, and total disciplinary removals,
and States were already obligated to
collect and report the data upon which
these determinations were made. See,
OMB Control No. 1875–0240; OSEP
Memorandum 07–09, April 24, 2007.
The requirements under § 300.647(b),
therefore, cannot reasonably be
considered excessive. Further, while calculating risk ratios
for total disciplinary removals under
§ 300.646(b)(4)(vii) does involve using
the data already included in
§ 300.646(b)(4)(iii) through (vi), is the
Department does not view this as
double counting but as an amalgamation
of various types of removals. That is,
§ 300.646(b)(4)(vii) is intended to allow
for a separate review of disciplinary
removals that could include lower-
incidence disciplinary actions that may
happen too rarely to allow for a stable
risk ratio calculation. This is similar to
the inclusion, in § 300.646(b)(3)(i), of
categories of disabilities set out in
§ 300.646(b)(3)(ii) and all other
categories, including low-incidence
disabilities. With respect to the comment
suggesting that the Department
reorganize § 300.647(b)(4), we believe
that the current structure is sufficiently
clear to avoid confusion. The
Department further disagrees that the
requirements under § 300.647(b)(4) will
force LEAs to develop quota targets for
different types of discipline so as to
avoid a finding of significant
disproportionality. Nothing in these
regulations is intended to require LEAs
to overturn appropriate prior decisions
or to otherwise affect individual
decisions regarding the identification of
children as children with disabilities,
the placement of children with
disabilities in particular educational
environments, or the appropriate
discipline of children with disabilities. Finally, nothing in § 300.647 is
intended to unfairly target those LEAs that have a few short-term suspensions
where behaviors are resolved through
changes in IEPs by grouping these
districts with those that have repeated
removals of more than 10 days, whether
or not the IEP Teams make changes in
IEPs or services for the children
involved. It is true that all LEAs are
subject to the same State methodology
for determining significant
disproportionality, and every LEA
where the State determines there is
significant disproportionality is subject
to the same statutory remedies of
reserving 15 percent of IDEA Part B
funds for comprehensive CEIS and
reviewing, and revising, if appropriate,
policies, practices, and procedures
related to disciplinary removals. One of
the purposes of the analyses, however,
is to identify and address significant
disproportionality that is indicative of
systemic or otherwise persistent
underlying problems, which may not be
revealed when there are too few short-
term or long-term suspensions, whether
or not behaviors are proactively
resolved through changes in IEPs.
Changes: None.
Comments: One commenter expressed
a concern regarding the completeness of
IDEA section 618 data with respect to
the disciplinary removals of children
ages three through five. The commenter
stated that the field of early childhood
often does not use the terms suspension
or expulsion to describe a disciplinary
removal. Discussion: As we have discussed
previously, the Department designed
§ 300.647(b)(4) to mirror IDEA section
618(a) (20 U.S.C. 1418(a)) provisions
with respect to the collection of
discipline data and the use of these data
to review disciplinary removals, as
explained in our previous guidance.
OSEP Memorandum 08–09 (July 28,
2008). This guidance clearly specified
our interpretation that States’ review for
significant disproportionality with
respect to disciplinary removal must
include children with disabilities, ages
three through five. That said, the Department generally
agrees with the commenter that data
completeness and quality is important
and will consider ways to support the
work of States to properly collect and
report data to the Department,
especially in situations where a State’s
terminology differs from the
Department’s data definitions. Changes: None.
Comment: A commenter expressed
concerns about the inclusion of
residential facilities in proposed
§ 300.647(b)(4), as LEAs are generally
not the agency responsible for placing
children in residential facilities. In the
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commenter’s State, children are counted
in the LEA where the facility is located.
Discussion: When States examine
their data to determine whether an LEA
has significant disproportionality, the
Department expects that States will use
education placement data that is
consistent with those submitted to the
Department for purposes of IDEA
section 618(a) and OMB Control No.
1875–0240. Final § 300.647(b)(4) is
consistent with these data collection
requirements and with the Department’s
previous guidance regarding States’
review of significant disproportionality
with respect to placement in residential
facilities. (See, IDEA section 618(d); and
Questions and Answers on
Disproportionality, June 2009, Response
to Question B–1.) We repeat the
Department’s position here for
convenience.
We interpret IDEA section 618(d) to
require States to include, or exclude, a
child with a disability in its calculation
of significant disproportionality
depending on the agency that placed the
child in a residential facility and the
location of the residential facility. All
children with disabilities placed in a
residential facility in the same State by
an educational agency must be included
in the calculation of significant
disproportionality. For purposes of
calculating significant
disproportionality, however, a State
should assign responsibility for
counting a child with a disability placed
in an out-of-district placement to the
LEA that is responsible for providing
FAPE for the child (the ‘‘sending’’ LEA)
rather than the LEA in which the child
has been placed (the ‘‘receiving’’ LEA).
Children with disabilities placed in
residential facilities or group homes in
the same State by a noneducational
agency (e.g., court systems, Department
of Corrections, Department of Children,
Youth and Families, Social Services,
etc.) may be excluded from a State’s
calculation of significant
disproportionality. Children with
disabilities placed in a residential
facility in a different State by an
educational agency should be included
in a State’s calculation of significant
disproportionality in the LEA
responsible for providing FAPE for that
child (the sending LEA). Children with
disabilities placed in a residential
facility in a different State by a
noneducational agency (e.g., court
systems, Department of Corrections,
Department of Children, Youth and
Families, Social Services, etc.) may be
excluded from the calculation of
significant disproportionality by both
the State in which the child resides and the State where the residential facility is
located.
Changes: None.
Risk Ratio Thresholds (§ 300.647(a)(7);
§ 300.647(b)(1) and (2); § 300.647(b)(6)) Comments: One commenter
questioned whether proposed
§ 300.647(b)(1) requires States to
identify additional LEAs and noted that,
expressing concern that the potential
costs of the regulations outweigh the
benefits. The commenter noted that, in
the NPRM, the Department stated that it
would examine each State’s risk ratio
threshold to determine its
reasonableness. Discussion: The section in the NPRM
containing the analysis of costs and
benefits, and the same section in this
document, states that the standard
methodology, applied nationwide, will
likely result in more LEAs identified
with significant disproportionality. That
is different, however, than requiring
States to identify additional LEAs.
Under §§ 300.646 and 300.647, States
are not required to identify additional
LEAs. Similarly, while the Department
stated that the risk ratio thresholds
selected by the States would be subject
to its review, the Department did not
state that this review must strictly
adhere to a particular outcome that may
be overly burdensome to States. In
general, the Department does not intend
to require States to submit their risk
ratio thresholds for approval prior to the
implementation of the standard
methodology. Rather, after these
regulations take effect, the Department
will monitor States for any use of risk
ratio thresholds that may be
unreasonable and take steps, as needed,
to ensure the States’ compliance with
§ 300.647(b)(1). To ensure that the Department may
accurately and uniformly monitor all
risk ratio thresholds for reasonableness,
we have added a requirement that each
State report to the Department all of its
risk ratio thresholds and the rationale
for each. The Department has not yet
determined the precise time and manner
of these submissions, but it will do so
through an information collection
request. States are not obligated to
comply with this reporting requirement
until the Office of Management and
Budget approves the Department’s
information collection request. Changes: The Department has added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all risk ratio thresholds developed
under § 300.647(b)(1)(i)(A) and the
rationale for each. Comments:
A number of commenters
raised issues with respect to the process
by which States will develop reasonable
risk ratio thresholds. Several of these
commenters strongly supported the
Department’s proposal to require States
to involve their State Advisory Panels in
setting the thresholds. One of these
commenters added that we should
require States currently using a method
similar to the standard methodology to
review their thresholds with
stakeholders prior to gaining
Department approval. One commenter
requested that the Department, prior to
the issuance of the final regulations,
clarify the process by which States
would assess the reasonableness of their
proposed risk ratio thresholds. Other commenters suggested that the
Department require States to use a
uniform standard-setting process to
inform the State Advisory Panels in
developing risk ratio thresholds. One
commenter suggested that the
Department require States to undertake
a standard-setting process with
stakeholders, including the State
Advisory Panels, to revisit their existing
risk ratio thresholds using the new
calculations; generate impact data using
these thresholds; and then apply
different thresholds to examine the
impact upon disability subgroups,
placement categories, and impairments.
The commenter also recommended that
States’ risk ratio thresholds, as well as
their business rules for the application
of the thresholds, be publicly posted.
The commenter further suggested that
States reexamine risk ratio thresholds
every three years to study their impact,
adjust for population changes or new
research, and to revise the opportunities
for stakeholder input. Finally, these
commenters urged the Department to
require States to include
epidemiologists on State Advisory
Panels. Discussion: We agree with
commenters that State Advisory Panels
should play a critical role in the
development of States’ reasonable risk
ratio thresholds. Under IDEA section
612(a)(21)(D)(iii) (20 U.S.C.
1412(a)(21)(D)(iii)), State Advisory
Panels have among their duties a
responsibility to ‘‘advise the State
educational agency in developing
evaluations and reporting on data to the
Secretary under section 618.’’ As the
selection of risk ratio thresholds will
affect the data States will submit to the
Department under the IDEA Part B
Maintenance of Effort (MOE) Reduction
and Coordinated Early Intervening
Services (CEIS) data collection required
under IDEA section 618—including the
LEAs identified with significant
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disproportionality and the category or
categories under which the LEA was
identified (i.e., identification,
identification by impairment,
placement, or discipline)—the State
Advisory Panel should have a
meaningful role in advising the State on
methods to use in establishing
reasonable risk ratio thresholds for
determining significant
disproportionality. However, while the Department does
not preclude either a State or State
Advisory Panel from undertaking a
standard-setting process and evaluating
impact data in developing a reasonable
risk ratio threshold, we do not find it
necessary to prescribe the exact steps
States must take in order to gain input
from State Advisory Panels in that
process. Likewise, at this time, the
Department does not intend to mandate
a specific process by which a State and
its State Advisory Panel should assess
the reasonableness of its proposed
threshold, nor do we currently find it
necessary to require States to reestablish
their risk ratio thresholds every three
years. As a State has the flexibility to
establish its own reasonable risk ratio
threshold, and is required to do so with
input from its State Advisory Panel, the
Department expects that either or both
entities may, at any time, seek to
reexamine whether the State’s risk ratio
threshold continues to be reasonable.
Absent any indication that this practice
would not be effective, the Department
currently prefers to allow States and
State Advisory Panels the flexibility to
review and revise risk ratio thresholds
as necessary or appropriate, rather than
increase their burden by requiring
regular reviews or mandating a specific
standard-setting process. Finally, while epidemiologists may be
useful stakeholders for States as they
create reasonable risk ratio thresholds,
we believe that States have sufficient
expertise to determine the appropriate
composition of their State Advisory
Panels. Changes: None.
Commenter: A few commenters
recommended that the Department
ensure that the regulations outline
specific ways that States and LEAs can
meaningfully include all stakeholders in
addressing significant
disproportionality. The commenters
recommended that States be required to
demonstrate outreach and incorporation
of diverse stakeholder input and advice
in setting thresholds and addressing
significant disproportionality through:
Documentation of outreach to
stakeholders (including efforts to recruit
a diverse State Advisory Panel); posting
of detailed minutes of State Advisory Panel meetings; transparent publication
and communication about State efforts
to set reasonable risk ratio thresholds;
demonstration of how stakeholder
feedback was incorporated in defining
final thresholds above which
disproportionality is significant;
demonstration of stakeholder input in
reviewing and revising State policies,
practices, and procedures related to the
identification or placement of children
with disabilities in LEAs identified as
having significant disproportionality;
and transparency in noting State efforts
and progress in remedying significant
disproportionality.
Discussion: We do not believe it
necessary to outline in these regulations
the specific ways that States must
document their efforts to involve
stakeholders in the development of risk
ratio thresholds. Under IDEA section
612(a)(21)(D)(iii) (20 U.S.C.
1412(a)(21)(D)(iii)), State Advisory
Panels already have among their duties
a responsibility to ‘‘advise the State
educational agency in developing
evaluations and reporting on data to the
Secretary under section 618.’’ Given
these and other long-standing
responsibilities, it is the Department’s
belief that States already have in place
processes and procedures to secure
input from their State Advisory Panels.
Further specific requirements for
stakeholder involvement could add a
new data collection or reporting burden
on States, which we do not believe is
necessary. As most of the commenters’
suggestions would dramatically increase
paperwork burden for States, and
because we believe there are already
sufficient procedures in place for States
to work with their State Advisory
Panels, the Department declines to
include those requirements in these
regulations.
As discussed elsewhere in this
analysis of comments, we also note that
public participation in the adoption and
amendment of policies and procedures
needed to comply with IDEA Part B is
already addressed by IDEA section
612(a)(19) and § 300.165. To the extent
that commenters sought requirements
for public participation requirements
beyond the ones contained in those
provisions, we decline to adopt them for
the reasons discussed above.
Changes: None.
Comments: One commenter expressed
concerns that these regulations will
weaken the role of State Advisory
Panels and other stakeholder groups in
each LEA. Another commenter asked
the Department to clarify the authority
of State Advisory Panels under the
proposed regulations. Discussion:
We believe that these
regulations help make more explicit and
strengthen the role of State Advisory
Panels and other stakeholders in how
States identify significant
disproportionality. Section
300.647(b)(1)(ii)(A) requires
consultation with stakeholders,
including the State Advisory Panels, in
developing the State’s risk ratio
thresholds, minimum cell sizes,
minimum n-sizes, and standards for
determining reasonable progress under
§ 300.647(d)(2). As discussed elsewhere
in this analysis of comments, we also
note that public participation in the
adoption and amendment of policies
and procedures needed to comply with
IDEA Part B is addressed by IDEA
section 612(a)(19) and § 300.165 would
apply, as appropriate. This helps to
ensure greater public awareness,
transparency, and input into how States
establish these values and implement
these regulations. Further, in the future, the Department
anticipates that all risk ratios and
alternative risk ratios will be made
public but has not yet determined the
precise time and manner for this to
occur. We anticipate doing so through
an information collection request,
through the Department’s own
publication of these data, or some
combination of the two. This will help
reinforce the review and revision of risk
ratio thresholds, cell sizes, and n-sizes
as an iterative public process within
each State. Changes: None.
Comments: A few commenters
asserted that, as State Advisory Panels
have limited family participation,
Parent Training and Information Centers
and Community Parent Resource
Centers should be required participants
in States’ implementation of the
standard methodology. Discussion: The Department agrees
with commenters about the importance
of the meaningful involvement of
families in the development of
reasonable risk ratio thresholds. We
note that State Advisory Panels are
composed of individuals ‘‘involved in,
or concerned with, the education of
children with disabilities,’’ and must
include ‘‘parents of children with
disabilities.’’ 20 U.S.C. 1412(a)(21)(B).
Section 300.647(b)(1)(i) requires that
States involve stakeholders, including
State Advisory Panels, in the
development of each State’s risk ratio
thresholds. This advisory role is within the scope
of the statutory responsibility of State
Advisory Panels to advise States in
developing evaluations and reporting on
data to the Department under IDEA
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92421 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
section 618. IDEA section
612(a)(21)(D)(iii); 20 U.S.C.
1412(a)(21)(D)(iii). While IDEA does not
include a similar statutory requirement
for either Parent Training and
Information Centers or Community
Parent Resource Centers, nothing in
these regulations that would prevent a
State, or other members of the State
Advisory Panel, from consulting with
those entities in the development of risk
ratio thresholds. To the extent that
States believe that their input would be
valuable, we encourage States to include
Parent Training and Information Centers
and Community Parent Resource
Centers in their deliberations regarding
the standard methodology.
Changes: None.
Comments: A number of commenters
responded to Directed Question #9,
which inquired, in part, whether there
are any circumstances under which the
use of different risk ratio thresholds for
different categories of analysis could
result in an unlawful disparate impact
on racial and ethnic groups. A few commenters expressed their
general support for allowing States to
use different risk ratio thresholds for
different categories of analysis. Of these,
one commenter specifically supported
allowing three different risk ratio
thresholds—one for identification, one
for placement, and one for disciplinary
removals. Other commenters noted that,
given the varying incidence rates and
resulting cell sizes across disability
categories, placements, and discipline
rates, different risk ratio thresholds
would be important in helping to ensure
that any identified disproportionality is
indeed significant. A last commenter
noted that States should be allowed to
consider setting different risk ratio
thresholds for different categories of
analysis (e.g., analysis of identification,
placement, and discipline) if those
thresholds are consistent with advice
from stakeholders, including State
Advisory Panels. Some commenters indicated only
partial support for using different risk
ratio thresholds for different categories
of analysis. Of these, one commenter
supported the use of different
thresholds for the analyses regarding
disciplinary removals, as well as
different thresholds for placement
categories, but suggested that all
thresholds used to analyze impairments
must be consistent. Other commenters
agreed that thresholds used to
determine significant disproportionality
in identification should not change for
each impairment. Several commenters expressed
concerns about, or opposed the use of,
different risk ratio thresholds for different categories of analysis. Of these,
some suggested that different risk ratio
thresholds would impede transparency
for parents, educators, and the public at
large; impede Federal efforts to monitor
States; and make it difficult to
understand why some LEAs would be
identified as having significant
disproportionality and not others. Two
commenters suggested that the language
allowing different thresholds for
different categories of analysis appeared
unconstitutional.
Several commenters cautioned that
States should not be permitted to set
higher risk ratios for the categories
where racial disproportionality is most
likely to negatively impact historically
disadvantaged groups of children. Some
of these commenters suggested that this
flexibility would allow States to avoid
identifying LEAs where disparities have
historically been most problematic.
These commenters noted that racial
disparities in special education—
notably, identification of intellectual
disability and emotional disturbance,
and placement outside the regular
classroom—were the result of local
efforts to use disability identification
and placement to resist desegregation
requirements and deny children of color
access to the regular classroom and
curriculum. One commenter noted that the LEAs
in one State have historically (1) only
over-identified Black children in
intellectual disability; (2) mostly over-
identified Hispanic children in speech
and language impairment; and (3) over-
identified Black and Native American
children in emotional disturbance and
specific learning disabilities. This
commenter and another commenter
stated that when specific races are
mostly or always over-identified in
specific disability categories, then the
use of different risk ratio thresholds for
different categories of analysis may
result in unlawful disparate impact on
racial and ethnic groups. One commenter suggested that the use
of different thresholds for different
disability categories might allow States
to conceal disproportionality in
disability categories that are commonly
known to be significantly
disproportionate. Discussion: The Department agrees
with commenters that States may need
different risk ratio thresholds in order to
reasonably identify significant
disproportionality for categories with
different degrees of incidence rates, and,
therefore, different degrees of disparity.
The Department sees no specific legal
obstacle to setting different thresholds
for different categories of analysis,
though we recognize that it is possible that any race-neutral threshold, just like
any race-neutral policy, could have a
disparate impact. In addition, as we
state later in this section, setting
different risk ratio thresholds for
different racial or ethnic groups within
the same category of analysis is unlikely
to withstand constitutional scrutiny.
Further, under § 300.647(b)(1), the
Department intends for States to have
the flexibility to set reasonable risk ratio
thresholds for each impairment and for
various placements and disciplinary
removals. With this provision, States
have the flexibility to set up to 15
different risk ratio thresholds. While the
Department understands commenters’
concerns that States could set race-
neutral risk ratio thresholds that may
have a disparate impact on a particular
race or ethnicity based on historical
numbers, in the Department’s view, a
requirement to apply uniform race-
neutral risk ratio thresholds across all
impairments would be unlikely to
address this concern. We believe that
States will have greater flexibility to
establish reasonable risk ratio
thresholds that do not have a disparate
impact based on race or ethnicity if
allowed to set different thresholds for
different disability categories. As it
works with States as they determine
their risk ratio thresholds, the
Department will decide whether
additional guidance in analyzing
potential disparate impact in setting
reasonable risk ratio thresholds is
necessary. For general guidance about
the application of the legal theory of
disparate impact in other contexts,
please see the joint Department of
Education and Department of Justice
Dear Colleague Letter on the
Nondiscriminatory Administration of
School Discipline at http://
www2.ed.gov/about/offices/list/ocr/
letters/colleague-201401-title-vi.pdf and
the Department of Education Dear
Colleague Letter on Resource
Comparability at http://www2.ed.gov/
about/offices/list/ocr/letters/colleague-
resourcecomp-201410.pdf. While we acknowledge that allowing
States to set multiple risk ratio
thresholds may mean some increase in
the complexity of the standard
approach, we do not believe that
permitting multiple risk ratio thresholds
substantively impedes the goals of
improved transparency or comparability
in State implementation of the standard
methodology. For any one category of
analysis—emotional disturbance, for
example—it will still be possible to
compare the reasonable risk ratio
thresholds each State uses to identify
significant disproportionality.
Meanwhile, we believe that allowing
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States this flexibility actually increases
the likelihood that they may take action
to address racial and ethnic disparities
in each of the categories of analysis,
rather than limit their efforts to only
those categories with the greatest
disparities.
The involvement and impact of State
Advisory Panels in the State’s setting of
risk ratio thresholds is discussed
elsewhere in this analysis of comments. Changes: None.
Comment: Directed Question #9 also
inquired whether there are any
circumstances under which the use of
different risk ratio thresholds for
different racial and ethnic groups
(within the same category of analysis)
could be appropriate and meet
constitutional scrutiny. A number of
commenters opposed the use of
different risk ratio thresholds for
different racial or ethnic groups of
children. One commenter stated that
different thresholds for different racial
or ethnic groups would not be useful or
fair. Two commenters believed that
allowing different thresholds for
different racial or ethnic groups would
make transparency difficult and make
data analysis much more complex.
Another commenter noted that, with
different risk ratio thresholds, one could
not make comparisons across racial or
ethnic groups. One commenter noted
that these thresholds would not likely
meet constitutional scrutiny. Discussion: The Department agrees
with the concerns raised by the
commenters. We believe that the use of
different risk ratio thresholds, by race or
ethnicity within the same category of
analysis, would be unlikely to meet
constitutional scrutiny because it is
difficult to articulate a compelling
justification for analyzing certain groups
differently based on their race or
ethnicity. For this reason, the
Department will not change
§ 300.647(b)(2), which clarifies that the
risk ratio thresholds developed for each
category of analysis (under
§ 300.647(b)(1)) must be the same for
each racial and ethnic group. Changes: None.
Commenters: Several commenters
suggested that the Department establish
a cap above which States may not
establish a risk ratio threshold, or
otherwise limit States to a range of risk
ratio thresholds. A few commenters suggested 3.0 as a
cap. One of the commenters noted that,
in the years between 2006 and 2009, six
States increased their risk ratio
thresholds and asked that the
Department establish an absolute
maximum risk ratio threshold of 3.0
(based, according to the commenter, on two median absolute deviations above
the national median of all LEA risk
ratios). Another commenter suggested a
risk ratio threshold cap of 2.0. Still
another commenter noted that using risk
ratio thresholds over 2.0 may well mask
significant disproportionality in
identification, especially for
impairments where children of color
with disabilities have historically been
over-identified, such as intellectual
disability and emotional disturbance.
Several commenters suggested that
the Department recommend a range
within which States may choose to set
their risk ratio threshold. These
commenters recommended a range
between 1.5 and 3.0, with some
flexibility to allow States to use higher
thresholds. The commenters suggested
that, so long as the State has identified
some LEAs in the prior two years and
is able to provide evidence that it will
identify some LEAs using a threshold
that is higher than the recommended
range, the State be allowed to set risk
ratio thresholds that exceed the
established range. Two commenters
believed that no State with a risk ratio
exceeding a level of two times
discrepant or above the national average
should be allowed to identify zero LEAs
as having significant disproportionality.
Discussion: The Department
considered and rejected the possibility
of establishing an absolute cap on the
States’ choice of risk ratio thresholds
and limiting States’ choice to a range of
thresholds. At this time, the Department
has not identified a sufficient, broadly
applicable justification on which to
establish these limitations at any
specific threshold. In lieu of a mandate
that all States use the same risk ratio
thresholds, or set thresholds within
limits established by the Department,
§ 300.647(b)(1) requires States to
develop risk ratio thresholds that are
reasonable and to consider the advice of
stakeholders in establishing these
thresholds. Moving forward, we will
review State policies and practices to
determine whether there emerges a
standard practice or set of practices that
may provide sufficient rationale for
those limitations.
As mentioned earlier in this section,
we have added a requirement that States
submit to the Department the risk ratio
thresholds they set and the rationales
for setting them. Though the principal
purpose of the requirement is to enable
the Department’s uniform monitoring of
risk ratio thresholds, submitting risk
ratio thresholds and their underlying
rationales will inform the Department’s
review of the question of the need for a
nationwide risk ratio threshold. Changes:
As mentioned above, the
Department has added § 300.647(b)(7),
which requires States to report to the
Department, at a time and in a manner
specified by the Secretary, all risk ratio
thresholds, the standard for measuring
progress under § 300.647(b)(1)(i)(A)–(D)
and the rationale for each.
Comment: A number of commenters
requested additional clarification
regarding how the Department will
determine whether States’ risk ratio
thresholds are reasonable. Of these,
some commenters’ requests were
general in nature. One commenter noted
that, theoretically, the provision could
allow States to continue to set
unreasonably high standards that will
continue to result in the identification
of few or no LEAs. Another commenter
suggested that the Department presume
risk ratio thresholds for certain
categories of analysis to be
unreasonable—if there has been
consistent overrepresentation in a
category—and require States to provide
a reasonable justification. A few
commenters noted that, if States are
given too much flexibility to set their
risk ratio thresholds, then the
requirement that they collect and
analyze data to identify significant
disproportionality becomes less
meaningful or results in little
meaningful information. Another
commenter expressed concern that a
standard of reasonableness, without
further qualification in the regulations,
might be result in a different
determination of reasonableness from
State to State, and from year to year.
Other commenters recommended that
the Department use specific definitions
of reasonableness. One commenter
expressed concern that the Department’s
proposal offers no national standard,
criteria, benchmarks, or goals and
targets on which to gauge State
compliance with the proposed
regulations and requested that the
Department withdraw the regulations
until it can clearly specify its standard
of ‘‘reasonableness.’’ One commenter
requested that the Department notify all
States of any Federal enforcement action
taken to ensure the reasonableness of a
State’s risk ratio threshold.
Other commenters recommended that
the Department make clear that States
that did not identify a single LEA in any
area in the past, or that identified very
few LEAs because of an unreasonably
high threshold, will be unlikely to have
their threshold deemed ‘‘reasonable’’ if
it exceeds a set range, or remains
unchanged (even if falling within a
range recommended by the
Department).
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Some commenters suggested that the
Department include factors unique to
each State when considering the
reasonableness a risk ratio threshold.
One commenter suggested that the
Department consider both the racial and
ethnic composition of States and LEAs
and the presence of factors correlated
with disability when evaluating risk
ratio thresholds. Other commenters
suggested that the Department provide
States the flexibility to establish risk
ratio thresholds that reflect the
composition of States’ and LEAs’ unique
demography. One commenter suggested that, so
long as the State’s proposed risk ratio
threshold represents a decision that is
unbiased, data-driven, and responsive to
the particular needs of the State, it
should be deemed reasonable when
analyzed by the Department. Discussion: We appreciate all of the
comments regarding the Department’s
review of a State’s risk ratio thresholds.
It is our intention to clarify in
forthcoming guidance the specific
processes the Department will use to
review for reasonableness a State’s risk
ratio thresholds, including information
on how, and under what circumstances,
the Department will undertake this
review. In the interim, however, States
may choose to consider the four
conditions that the Department
included in the NPRM in their
development of risk ratio thresholds. First, if the selected threshold leads to
a reduction in disparities on the basis of
race or ethnicity in the State or if it
results in identification of LEAs in
greatest need of intervention, then the
Department may be more likely to
determine that a State has selected a
reasonable threshold. Second, the
Department may be more likely to
determine that a State has selected an
unreasonable risk ratio threshold if the
State avoids identifying any LEAs (or
significantly limits the identification of
LEAs) with significant
disproportionality in order to, for
example, preserve State or LEA capacity
that would otherwise be used for a
review of policies, practices, and
procedures and reserving IDEA Part B
funds for comprehensive CEIS, or to
protect LEAs from needing to
implement comprehensive CEIS. Third,
the Department noted that establishing
a risk ratio threshold solely on an
objective calculation does not guarantee
that the Department would consider the
resulting threshold to be reasonable
when examined in light of racial and
ethnic disparities taking place at the
LEA level. As States have access to
population data, there is no need to use
statistical methods to make inferences about the population data using sample
data. Fourth, a State’s selection of a risk
ratio threshold that results in no
determination of significant
disproportionality may nonetheless be
reasonable, particularly if that State has
little or no overrepresentation on the
basis of race or ethnicity.
Given this, § 300.647(b)(1)(ii), and
§ 300.647(b)(7), under which any State’s
selection of risk ratio threshold is
submitted to the Department and subject
to its monitoring and enforcement for
reasonableness, we disagree with those
commenters concerned that allowing
States to set their own reasonable risk
ratio thresholds will allow them to set
inappropriately high thresholds or that
this flexibility will undermine the value
of the required data collection and
analysis. While States have the
flexibility to set reasonable risk ratio
thresholds and will not be required to
seek Departmental approval of risk ratio
thresholds prior to the implementation
of the standard methodology, the
Department intends to review risk ratio
thresholds, and, in cases where a risk
ratio threshold may not appear
reasonable on its face, request that a
State justify how the risk ratio threshold
is reasonable. If, upon review of a
State’s explanation, the Department
determines that the threshold is not
reasonable, the Department may notify
the State that it is not in compliance
with the requirement in these
regulations to set a reasonable risk ratio
threshold. The Department may then
take appropriate enforcement action
authorized by law, ranging from
requiring a corrective action plan, to
imposing special conditions, to
designating the State as high-risk status,
to withholding a portion of the State’s
IDEA Part B funds. While we currently
do not intend to issue a separate
notification to all States in each instance
in which the Department takes
enforcement action with respect to any
one State, we note that many of the
aforementioned examples of possible
enforcement actions result in publicly
available information. Like the commenters, we believe it
possible that States currently not
identifying LEAs with significant
disproportionality are using risk ratio
thresholds that are not reasonable (for
those States that are using the risk ratio
as part of their current methodology for
determining significant
disproportionality). However, while we
currently believe it would be unlikely
for any State to have no significant
disproportionality in any category of
analysis, for purposes of these
regulations, we do not find it
appropriate to automatically consider a State’s selection of risk ratio threshold
unreasonable solely because no LEAs
are identified. Theoretically, if risk ratio
thresholds were always unreasonable
simply because no LEAs were
identified, it would be impossible for a
State to resolve its significant
disproportionality. In this circumstance,
significant disproportionality would
become an ever-moving target, where
States would be forced to reduce
thresholds again and again, potentially
to a degree where disproportionality
could no longer be considered
significant. That is, the Department does
not believe that any and all levels of
disparity are significant.
The Department also agrees with
commenters that a State’s unique
characteristics can be helpful for the
State and its stakeholders to consider
when developing risk ratio thresholds.
We believe it is reasonable, for example,
for States to consider the racial and
ethnic composition of the State and
LEAs, unique enrollment demographics,
as well as factors correlated with
disability, when developing their risk
ratio thresholds. These considerations
should not, however, serve as bases for
setting risk ratio thresholds that could
allow LEAs with significant
disproportionality not to be identified.
In the end, the Department will assess
the reasonableness of a given threshold
by examining its capability to identify
and address disproportionality that is
significant and by taking into
consideration all facts that bear upon
the choice of a risk ratio threshold. The
Department will, in short, determine
reasonableness in the totality of the
circumstances. Finally, the Department agrees with
commenters that unbiased, data-driven
decision-making, tailored to the needs
of a State, would more likely lead to the
creation of a reasonable risk ratio
threshold. However, we remind these
commenters that, in setting risk ratio
thresholds, States should do so with the
intent of helping LEAs to identify,
investigate, and address significant
disproportionality. Changes: None.
Comment: Several commenters
requested the Department create a safe
harbor for risk ratio thresholds that
States could voluntarily adopt with the
knowledge that it is reasonable under
these regulations. Of these, one
commenter suggested that the safe
harbor be set in advance of the effective
date of the regulations in order to ensure
that the thresholds set by States do not
result in an unlawful disparate impact
on racial and ethnic groups and to
minimize costs to States to correct risk
ratio thresholds found to be
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92424 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
unreasonable. Another commenter
recommended that the Department
consider risk ratio thresholds within a
range of 2.5 to 3.5 as a safe harbor. One
commenter urged the Department to
monitor whether States using thresholds
higher than 2.0 are indeed capturing
instances of significant
disproportionality where they occur.
Another commenter recommended that
the final regulations include additional
clarity regarding the criteria the
Department will use to determine if a
State’s established threshold is
reasonable, especially if risk ratio
threshold is greater than those
published in the Racial and Ethnic
Disparities in Special Education: A
Multi-Year Disproportionality Analysis
by State, Analysis Category, and Race
and Ethnicity.
Discussion: We appreciate the
comments, in response to Directed
Question #5, about a possible ‘‘safe
harbor’’ that would allow States to set
risk ratio thresholds that they know
would be considered reasonable by the
Department. The Department does not
believe, however, that it is in a position
to mandate a particular risk ratio
threshold. We have yet to justify the
establishment of specific requirements
regarding thresholds, including ranges,
‘‘safe harbors,’’ or other limitations.
Moving forward, however, we intend to
review State policies and practices to
determine whether there emerges a
standard practice or set of practices that
may provide sufficient rationale for a
particular threshold, a range of
thresholds, or a cutoff under which the
Department would consider a threshold
reasonable. We note that the Department’s
published set of example risk ratio
thresholds—in Racial and Ethnic
Disparities in Special Education: A
Multi-Year Disproportionality Analysis
by State, Analysis Category, and Race/ Ethnicity—were intended to provide the
public with an illustration of racial and
ethnic disparities in special education,
and provide examples of what
reasonable risk ratio threshold might
look like. It was not the intent of the
Department, in publishing those
examples, to offer these thresholds to
States as a ‘‘safe harbor,’’ to suggest that
higher thresholds could not be
reasonable, or to otherwise restrict
States’ to those example thresholds.
Further, we note the risk ratio
thresholds were calculated with
consideration for the standard
methodology as proposed in the NPRM.
Now that the Department has amended
portions of the standard methodology—
including the provisions regarding
population requirements—the risk ratio thresholds published in the report no
longer function as appropriate
examples.
Changes: None.
Comments: One commenter suggested
that the median absolute deviation
(MAD) may be inappropriate as a
method to compute risk ratio
thresholds. The commenter requested
that the Department explain and justify,
prior to the issuance of the final
regulations, the use of risk ratio
thresholds that exceed two MADs above
the national median to determine
significant disproportionality. The
commenter also requested more detailed
guidance to assist States in running this
calculation on their own. Discussion: The Department did not
intend to mandate that States use
median absolute deviations as a method
to compute risk ratio thresholds; rather,
the approach was intended to illustrate
one way to develop risk ratio thresholds
that might be considered reasonable
given national IDEA section 618 data.
While acknowledging that the NPRM
could have provided greater clarity on
this point, it was not the Department’s
prime objective to suggest that States
use median absolute deviations on their
own to calculate risk ratio thresholds.
This is especially true given that States,
in examining only their own data,
would have fewer LEAs, and, therefore,
fewer risk ratio calculations from which
to calculate the MADs, which could
lead to significantly higher, and
potentially unreasonable, risk ratio
thresholds. The Department intends to provide
guidance to States regarding how to
work with stakeholders, and review
data, to set reasonable risk ratio
thresholds. Changes: None.
Comment: A number of commenters
responded to Directed Question #5,
which inquired whether the Department
should, at a future date, mandate
national maximum risk ratio thresholds.
Some commenters opposed this
possibility outright. One commenter
noted that a single national standard
may not be feasible across the wide
variety of regional, State, and local
differences. Commenters strongly supported
allowing States to determine, in
conjunction with stakeholders, how
their own thresholds will identify
disproportionality that is significant.
Other commenters supported leaving
States flexibility to set their own
thresholds, so long as the Department is
able to ensure that those thresholds are
reasonable. Some commenters noted
that, given the statutory and fiscal
consequences associated with significant disproportionality, States
need to be able to defend their selected
risk ratio thresholds to the States’
constituents, which include legislators,
State Education Departments, and LEAs.
One commenter noted that each State is
unique, and has its own plans with
respect to IDEA and other Federal
education programs to address those
needs. The commenter concluded that
requiring the same risk ratio thresholds
in every State would fail to recognize
each State’s uniqueness. A number of
commenters expressed support for
permitting States to retain the discretion
to determine the risk ratio threshold
above which disproportionality is
significant, so long as that threshold is
reasonable and based on advice from
their stakeholders, including their State
Advisory Panels. One commenter stated
that, if there is to be a mandated Federal
requirement for consistent calculation of
significant disproportionality across
States using a risk ratio formula, States
must be granted flexibility in applying
those calculations and setting
thresholds without onerous Federal
involvement.
On the other hand, a few commenters
strongly believed that the Department
should move toward mandating that all
States use the same risk ratio threshold.
One commenter generally noted that a
clear picture of national disparities was
precluded due to different States using
different thresholds for significant
disproportionality.
Discussion: The Department
recognizes the potential advantages and
disadvantages of setting national risk
ratio thresholds, and we thank the
commenters for their thoughtful input
on this important issue. At this time, the
Department does not believe it has
identified a sufficient justification for
mandating any particular national risk
ratio thresholds. However, moving
forward, we will review State policies
and practices to determine whether
there emerges standard industry
practice that may provide sufficient
rationale at a later date for such a
requirement.
Changes: None.
Minimum Cell Sizes and Minimum N-
Sizes (§ 300.647(a)(3) and (4);
§ 300.647(b)(1)(i)(B) and (C);
§ 300.647(b)(3) and (4); § 300.647(c)(1)) Comments: This ‘‘comment/response/
changes’’ section is not intended to
respond to specific comments, but
rather to provide a general introduction
to minimum cell and n-sizes, and lay
the foundation for responding to
specific comments in the following
sections.
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Discussion: Risk ratios may produce
unreliable results when the calculation
is done with small numbers of children
in a particular category of analysis, and
this could result in LEAs being
inappropriately identified with
significant disproportionality. The most
common method States use to address
this problem is to identify a minimum
number of children who must be
enrolled in an LEA within a specific
racial or ethnic group or experiencing a
particular outcome in order for the LEA
to be analyzed for significant
disproportionality. That is, risk ratios
are not calculated for a specific racial or
ethnic group within a specific category
of analysis if LEAs do not have or enroll
a minimum number of children from
that racial or ethnic group within that
category of analysis or a minimum
number of children not in that racial or
ethnic group experiencing that
particular outcome. In this regulation, we refer to these
minimum population requirements as
minimum cell sizes and minimum n-
sizes. (As noted elsewhere in this
document, the term ‘‘minimum n-size’’
in this document aligns with the use of
the term ‘‘minimum cell size’’ in the
NPRM and the term ‘‘minimum cell
size’’ herein refers to the number of
children in a particular racial or ethnic
group or groups experiencing a
particular outcome.) As the minimum
cell size and minimum n-size increase,
the relative stability of the calculated
risk ratios tends to increase. However,
as these minimum population
requirements increase, the number of
districts that are excluded from the
analysis in one or more specific
categories of analysis also increases. The
Department believes that States can
balance the risks of inappropriately
identifying districts because of small
minimum cell sizes or n-sizes against
the risk of inappropriately excluding
large numbers of districts from analysis
because of particularly large minimum
cell sizes or n-sizes. In the NPRM, we proposed that States
would be required to use a minimum n-
size (the number of children in a
particular racial or ethnic group
enrolled in an LEA) of not more than 10
to determine significant
disproportionality. We received
numerous comments about the
importance of allowing States to
establish an additional minimum cell
size requirement (a minimum number of
children within a race or ethnicity
experiencing a particular outcome in an
LEA). Those comments are set out and
discussed in greater detail elsewhere in
this section. Upon reflection, we agree
with the commenters, and thus in the final regulations, we will require States
to set minimum n-sizes and
cell sizes.
Additionally, as discussed elsewhere
in this section, the proposed
requirement of minimum n-size of 10
was questioned by a number of
commenters. Following publication of
the NPRM, we became aware of
significant vulnerabilities in applying
the analysis utilized in the primary
article on which we relied to support
the n-size requirements in the NPRM to
the standard methodology. Therefore, in
these final regulations, we do not
include an n-size of 10 or less, but
rather specify that the n- and cell sizes
States set must be reasonable. We also
establish in § 300.647(b)(1)(iv)(A) and
(B), a rebuttable presumption that a
minimum cell size of no greater than 10
and n-size of no greater than 30 are
reasonable. A rebuttable presumption,
in this context, means that, in reviewing
minimum cell sizes and n-sizes
established by States for reasonableness,
and absent additional information to the
contrary, the Department would
consider a State’s use of 10 or less for
cell size and 30 or less for n-size to be
reasonable. A Department review of data
submitted through the IDEA State
Supplemental Survey for school year
2013–14 found that States that used risk
ratios in their determinations of
significant disproportionality tended to
set their cell size or n-size requirements
at 30 or less. Based on these data, the
Department determined that cell sizes of
10 and n-sizes of 30 would allow the
majority of States currently using risk
ratios to retain their already established
population requirements. We note that,
to the extent States publicly report their
calculations or share data with
stakeholders, the cell size of 10 is a
recognized standard in data suppression
to protect privacy. We also note that
reasonable n-sizes and cell sizes could
be less than 10 and 30 if smaller
numbers are needed to maximize the
number of LEAs examined for
significant disproportionality. This is
particularly relevant in categories of
analysis where LEAs have small
numbers, such as discipline. States, in
making these determinations in
consultation with their stakeholders,
including State Advisory Panels, must
carefully balance inclusion of LEAs and
volatility. Changes: Changes made in response
to this issue are discussed in more
depth throughout this section. Comment: One commenter stated that,
in the description of States’ current
population requirements in the NPRM,
it was not clear whether the
requirements described by the Department were minimum n-sizes or
minimum cell sizes. The commenter
further asserted that, in discussions
with States, it appeared that many
States are using a minimum cell size,
and not a minimum n-size, as was
proposed in the NPRM. One commenter
expressed confusion as to whether the
Department intended to allow States to
set a minimum cell size of up to 10
children, or a minimum n-size of up to
10 children, or both.
Discussion: The Department intended
with proposed § 300.647(b)(3) and (4) to
limit States’ selection of minimum n-
size to a figure no larger than 10. The
NPRM included no provisions allowing
States to set a minimum cell size.
However, as we note earlier in this
section, we agree with the commenters
that States should be allowed to use a
minimum cell size, in addition to a
minimum n-size, in order to prevent
inappropriate determinations of
significant disproportionality. To ensure that these provisions are
clear, we have also included in the
notice a definition of minimum n-size
and a definition of minimum cell size. Changes: We have revised
§ 300.647(a) to include a definition of
minimum n-size and a definition of
minimum cell size. Comment: A few commenters agreed
that, in combination with proposed
§ 300.647(c)(1) allowing States to
determine significant disproportionality
by looking across three consecutive
years of data, it is appropriate to have
a minimum n-size in the calculation of
significant disproportionality under
proposed § 300.647(b). These
commenters stated that this will mean
that the greatest number of LEAs will be
able to examine their practices and to
use funds to remediate the concerns
they find. Discussion: With § 300.647, it is the
Department’s goal to support State
efforts to appropriately identify LEAs
with significant disproportionality. We
agree with the commenters’ suggestion
that, when LEAs are appropriately
identified, they will benefit from the
review (and, if necessary, revision) of
policies, practices, and procedures, and
from comprehensive CEIS. We also
agree with the commenters that a
reasonable minimum n-size, as well as
the flexibility to use up to three
consecutive years of data, will help
States to both reduce and account for
risk ratio volatility before making a
determination of significant
disproportionality. In this way, States
can focus their efforts on LEAs with
consistently high risk ratios, which may
indicate systemic racial and ethnic
disparities in need of intervention.
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Changes: None.
Comment: A large number of
commenters expressed their general
support for efforts to standardize
minimum n-sizes. Several commenters
expressed support for retaining
proposed § 300.647(b)(3) and (4), with a
minimum n-size of 10, and expressed
concerns about using a higher figure
that would exclude racial and ethnic
groups from a review for significant
disproportionality. One commenter
noted that States’ selection of high
minimum n-sizes for each racial and
ethnic group, such as 25 or higher, has
likely been one method of reducing the
identification of significant
disproportionality. The commenter
expressed concerns that large n-sizes
would weight monitoring towards large
urban LEAs and inappropriately
exclude smaller LEAs. Discussion: The Department agrees
with commenters that, as minimum
n-sizes increase, fewer LEAs and fewer
subgroups within LEAs are examined
for significant disproportionality using
the standard methodology. N-sizes that
are too high increase the likelihood that
States may fail to analyze and identify
LEAs with highly disproportionate rates
of identification, placement in
particular settings, or discipline among
racial and ethnic groups as having
significant disproportionality. In such
instances, States and LEAs may miss
important opportunities to review and,
if necessary, revise policies, practices,
and procedures to ensure that all
children are provided with the supports
that they need to be successful. The Department initially proposed in
§ 300.647(b)(3) and (4) to limit States’
selection of minimum n-size (referred to
as cell size in the NPRM) to a figure no
larger than 10, based on an
understanding that this figure
represented an appropriate balance
between two competing interests: the
need to examine as many LEAs (and as
many racial and ethnic groups within
LEAs) as possible for significant
disproportionality and the need to
prevent inappropriate identification of
LEAs due to risk ratio volatility. Smaller
minimum n-sizes will include a larger
number of LEAs in a State’s annual
analysis for significant
disproportionality. However, smaller
minimum n-sizes increase the volatility
of the risk ratio, i.e. small changes in
data from year to year could cause large
changes in the risk ratio that do not
reflect any other underlying change. Our use of the proposed requirement
for the minimum n-size of 10 was
questioned by a number of commenters.
Following publication of the NPRM, we
became aware of significant vulnerabilities in the application of the
analysis behind the primary article on
which we relied to support that
proposal. Therefore, in these final
regulations, we will not include the
proposed minimum n-size requirement
of 10, but rather specify that States must
set, with input from stakeholders, a
reasonable minimum n-size and cell
size.
That said, § 300.647(b)(1)(iv)(A) and
(B) establish a rebuttable presumption
that a minimum cell size of no greater
than 10 and a minimum n-size of no
greater than 30 are reasonable. The
Department’s review of data submitted
through the IDEA State Supplemental
Survey for school year 2013–14 found
that States that used risk ratios in their
determinations of significant
disproportionality tended to set their
cell size or n-size requirements at 30 or
less. Based on these data, the
Department determined that cell sizes of
up to 10 and n-sizes of up to 30 would
allow the majority of States currently
using risk ratios to retain their already
established population requirements. We also note that to the extent States
publicly report their calculations or
share data with stakeholders, the cell
size of 10 is a recognized standard in
data privacy. We note as well that, in
adopting the rebuttable presumption,
the Department is, in part, responding to
the requests of commenters for
flexibility in the standard methodology.
We think this addition provides
significant flexibility to States in
implementing the standard
methodology. Further, as stated in
§ 300.647(b)(1)(iv), the Department will
review the States’ selections of risk ratio
thresholds for reasonableness. To ensure
that the Department may accurately and
uniformly monitor all cell and n-sizes
for reasonableness, and to inform our
policy position, we have added a
requirement in § 300.647(b)(7) that each
State report to the Department all of its
cell and n-sizes and the rationale for
each. The Department has not yet
determined the precise time and manner
of these submissions, but it will do so
through an information collection
request. States are not obligated to
comply with this reporting requirement
until the Office of Management and
Budget approves the Department’s
information collection request. If the Department identifies a State
that may have unreasonable minimum
cell or n-sizes, it would notify the State
and may request clarification regarding
how the State believes the minimum
cell or n-sizes the State is using are
reasonable. If a State provides an
insufficient response, the Department would notify the State that it is not in
compliance with § 300.647(b)(1)(i)(B) or
(C), and the Department may take any
enforcement action that is appropriate
and authorized by law. Enforcement
actions range from requiring a corrective
action plan, imposing special conditions
on the State’s IDEA Part B grant,
designating the State as a high-risk
grantee, or withholding a portion of the
State’s IDEA Part B funds.
Generally, while there are a number of
factors that may influence whether
certain minimum cell or n-sizes are
reasonable for a State, the optimal
choice will be a balance between the
need to examine as many LEAs (and as
many racial and ethnic groups within
LEAs) as possible for significant
disproportionality and the need to
prevent inappropriate identification of
LEAs due to risk ratio volatility. For
example, the Department is more likely
to consider minimum cell and n-sizes to
be reasonable if, in comparison to lower
minimum cell and n-sizes, it
substantially reduces the volatility of
risk ratio calculations. By contrast, the
Department is more likely to determine
that a State has selected unreasonable
minimum cell or n-sizes if it results in
the widespread exclusion of a racial or
ethnic group from review for significant
disproportionality in any of the
categories of analysis. The Department
may also consider smaller minimum
cell or n-sizes to be reasonable for
categories of analysis with lower
incidence, such as some placement and
discipline categories, to increase the
number of LEAs analyzed despite the
possibility of additional volatility.
Further, the Department is more likely
to determine that a State has selected
unreasonable minimum cell or n-sizes if
they result in the widespread exclusion
of LEAs from any review for significant
disproportionality. As such, the
Department has added in § 300.647(b)(7)
a requirement that the rationales
submitted for the minimum cell- and n-
sizes not presumptively reasonable must
include a detailed explanation of why
these numbers are reasonable and how
they ensure that the State is
appropriately analyzing LEAs for
significant disproportionality. Changes: We have revised proposed
§ 300.647(b)(3) and (4) to no longer limit
States to a minimum n-size of up to 10.
Section 300.647(b)(1)(i) now requires
States to select reasonable minimum
cell and n-sizes, with advice from
stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
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30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality.
Comments: Many commenters stated
that Federal investigators (which the
Department interpreted to refer to the
GAO) did not recommend that the
Department set minimum n-sizes. Discussion: We agree that the GAO
did not specifically recommend that the
Department establish a minimum n-size.
However, the GAO did recommend that
the Department establish a standard
method for determining significant
disproportionality, and nothing in the
GAO report precludes a minimum n-
size as part of the standard
methodology. Indeed, to the extent that
establishing a minimum n-size is
consistent with establishing a standard
methodology, it is in keeping with the
GAO’s primary recommendation. Changes: None.
Comments: A large number of
commenters expressed their strong
opposition to any attempt by the
Department to place limits on States’
minimum n-sizes. Many commenters
noted that there is no Federal n-size in
the latest authorization of the ESEA or
other Federal education laws. Discussion: When possible, the
Department prefers to provide States
and LEAs with comparable policy
provisions across programs, so long as
those provisions meet the individual
needs of both programs. However,
nothing in the ESEA or IDEA precludes
the Department from establishing
requirements and provisions regarding
the minimum n-size used for the
analysis for significant
disproportionality under IDEA section
618(d) that are different from the
provisions affecting school
accountability under ESEA. Further, we believe that some
limitation on States’ selection of
minimum cell and n-sizes is
appropriate. As we note earlier in this
section, as minimum cell and n-sizes
increase, fewer LEAs and fewer racial
and ethnic subgroups within LEAs are
examined for significant
disproportionality using the standard
methodology. As a result, it becomes
increasingly likely that States may fail
to identify LEAs with highly disproportionate rates of identification,
placement in particular settings, or
discipline among racial and ethnic
groups as having significant
disproportionality. For this reason, we
believe it appropriate to limit States’
choice of minimum cell and n-sizes to
those that meet a standard of
reasonableness that will be monitored
and enforced by the Department.
Changes: As discussed previously, we
have revised proposed § 300.647(b)(3)
and (4) to no longer limit States to a
minimum n-size of up to 10. Section
300.647(b)(1)(i) now requires States to
select reasonable minimum cell and n-
sizes, with advice from stakeholders,
including the State Advisory Panel,
subject to the Department’s
enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality. Comments: One commenter stated
that Congress, in recent Federal
education legislation, considered and
rejected a federally imposed minimum
n-size, clearly showing its preference
that those decisions be left to States.
Another commenter suggested that, in
mandating that States use a Federal
calculation, the regulation takes the
opposite approach of the Every Student
Succeeds Act, recent legislation that,
according to the commenter, focuses on
returning decision-making to States and
LEAs, and that the matter is best left to
Congress when it reauthorizes IDEA. Discussion: The Department
appreciates these and other
recommendations to provide States
additional flexibility to set n-sizes. After
considering comments, the Department
revised the final regulations to provide
States a great deal of flexibility to set
reasonable minimum n-sizes and cell
sizes while balancing the need to place
reasonable limits on this flexibility to
ensure that as many LEAs are analyzed
for significant disproportionality as is
appropriate using the standard
methodology. The Department has an
interest in monitoring the conditions
under which any LEA is so exempted
from IDEA section 618(d). As we discuss in A Standard Methodology for
Determining Significant
Disproportionality (§ 300.647)—General,
as the risk ratio method of measuring
significant disproportionality is
susceptible to volatility, the Department
aims to prevent ‘‘false positive’’
identification of significant
disproportionality. Accordingly, States
may exclude from their review any
racial and ethnic groups within LEAs
that do not meet State-set, reasonable
population requirements, consistent
with § 300.647(b)(1). Unreasonably high
minimum cell or n-sizes may
inappropriately exclude LEAs, or racial
and ethnic groups within LEAs, from a
State’s review of significant
disproportionality, increasing the
likelihood that States may fail to
appropriately identify LEAs with highly
disproportionate rates of identification,
placement, and discipline.
Given these issues, these regulations
are an appropriate exercise of the
Department’s authority—in this case, to
set reasonable population requirements
necessary to ensure compliance with
specific requirements of the statute. 20
U.S.C. 1406(a). Further, they are an
appropriate exercise of the Department’s
authority—as the agency charged with
administering IDEA (IDEA section
603(a), 20 U.S.C. 1402(a))—to monitor
and enforce IDEA’s implementing
regulations. When Congress begins the process of
reauthorization, the Department intends
to work closely with it on significant
disproportionality, among other issues.
In the interim, nothing in the ESEA or
IDEA precludes the Department from
establishing provisions regarding the
minimum n-size used for the analysis
for significant disproportionality under
IDEA section 618(d), and it is
appropriate for the Department to do so. Changes: As described earlier, we
have revised proposed § 300.647(b)(3)
and (4) to no longer limit States to a
minimum n-size of up to 10. Section
300.647(b)(1)(i) now requires States to
select reasonable minimum cell and
n-sizes, with advice from stakeholders,
including the State Advisory Panel,
subject to the Department’s
enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for
minimum n- and cell sizes that are not
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presumptively reasonable must include
a detailed explanation of why the cell-
and n-sizes chosen are reasonable and
how they help ensure an appropriate
analysis for significant
disproportionality.
Comments: A large number of
commenters argued that there would be
confusion and less accurate data if LEAs
were required to use one minimum
n-size for assessment purposes and
disaggregation (which the Department
interpreted to refer to school assessment
for purposes of ESEA accountability)
and a different minimum n-size for
significant disproportionality. Other
commenters requested that States have
the flexibility to use the same minimum
n-sizes used for other Federal education
programs. Another commenter stated
that, in one State, the minimum n-size
used for accountability purposes was 25
and that it might make sense to align the
minimum n-size with that requirement. Discussion: The Department
appreciates the commenters’ concerns
about setting different population
requirements across different Federal
programs. When possible, the
Department prefers to provide States
and LEAs with comparable
requirements across programs, so long
as those requirements meet the
individual needs of both programs. As we discussed earlier in this
section, we have adjusted our original
proposal to allow States to set their own
reasonable minimum n-sizes based on
input from stakeholders, including State
Advisory Panels, subject to the
Department’s monitoring and
enforcement for reasonableness. With
this change, States may set minimum
cell and n-sizes comparable to what
they use for other Federal programs. However, to the extent that aligning
population requirements between ESEA
and IDEA would result in a minimum
cell or n-size that is unreasonable for
purposes of IDEA section 618(d)—that
is, it would result in a failure to identify
LEAs with significant disproportionality
who are identifying or disciplining
certain racial and ethnic subgroups, or
placing them in restrictive settings, at
highly disproportionate rates—the
choice of cell or n-size would not
comply with the requirements of IDEA. Changes: None.
Comments: A large number of
commenters felt that, generally, States
are best positioned to determine
minimum n-size. Discussion: In the NPRM, the
Department proposed to limit States’
selection of a minimum n-size to a
figure no larger than 10. Again,
however, after further consideration and
review of public comment, the Department has modified the final
regulations to provide States greater
flexibility in determining reasonable
minimum n- and cell sizes.
At the same time, we continue to
believe that the Department has an
interest—pursuant to OSEP’s statutory
obligation to ensure States’
implementation of IDEA section
618(d)—in ensuring that States do not
unreasonably exclude LEAs, or racial
and ethnic groups within LEAs, from
their review. Thus, we will monitor and
enforce with regard to n- and cell-size
reasonableness. To ensure that the Department may
accurately and uniformly monitor all
cell and n-sizes, and to inform our
policy position, we have added a
requirement in § 300.647(b)(7) that each
State report to the Department all of its
cell and n-sizes and the rationale for
each. The Department has not yet
determined the precise time and manner
of these submissions, but it will do so
through an information collection
request. States are not obligated to
comply with this reporting requirement
until the Office of Management and
Budget approves the Department’s
information collection request. Generally, while there are a number of
factors that may influence whether
certain minimum cell or n-sizes are
reasonable for a State, the optimal
choice will be a balance between the
need to examine as many LEAs (and as
many racial and ethnic groups within
LEAs) as possible for significant
disproportionality and the need to
prevent inappropriate identification of
LEAs due to risk ratio volatility. For
example, the Department is more likely
to consider minimum cell and n-sizes to
be reasonable if, in comparison to lower
minimum cell and n-sizes, they
substantially reduce the volatility of risk
ratio calculations. By contrast, the
Department is more likely to determine
that a State has selected unreasonable
minimum cell or n-sizes if they result in
the widespread exclusion of a racial or
ethnic group from review for significant
disproportionality in any of the
categories of analysis. The Department
may also consider smaller minimum
cell or n-sizes to be reasonable for
categories of analysis with lower
incidence, such as some placement and
discipline categories, to increase the
number of LEAs analyzed despite the
possibility of additional volatility.
Further, the Department is more likely
to determine that a State has selected
unreasonable minimum cell or n-sizes if
they result in the widespread exclusion
of LEAs from any review for significant
disproportionality. As such, the
Department has added in § 300.647(b)(7) a requirement that the rationales
submitted for the minimum cell- and n-
sizes which are not presumptively
reasonable must include a detailed
explanation of why these numbers are
reasonable and how they ensure that the
State is appropriately analyzing LEAs
for significant disproportionality.
Changes: Section 300.647(b)(1)(i) now
requires States to select reasonable
minimum cell and n-sizes, with advice
from stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable which must include a
detailed explanation of why the cell-
and n-sizes chosen are reasonable and
how they help ensure an appropriate
analysis for significant
disproportionality. Comments: Many commenters noted
that a minimum n-size of 10 will result
in many LEAs, particularly small LEAS,
being identified with significant
disproportionality. One commenter
stated that the Department should do
away with regulatory language that
would lead to the identification of
almost every LEA, as, when this result
occurred under another Federal
education statute, subsequent legislative
efforts reversed much of what the
regulations intended to accomplish. Discussion: As we note earlier in this
section, the Department has amended its
original proposal to restrict States to a
minimum n-size no greater than 10, and,
instead, will require States to set
reasonable minimum cell and n-sizes.
We believe this change to be responsive
to both of the comments raised. However, we wish to note that, in
circumstances where a State has
identified a large number of LEAs, it is
not necessarily the case that these
determinations are inappropriate. By
requiring States to follow the standard
methodology under § 300.647, it is the
Department’s intent to support more
appropriate identification of significant
disproportionality based on race and
ethnicity in the identification,
placement, and discipline of children
with disabilities. If, in implementing the
standard methodology (which will
include State-selected risk ratio
thresholds, a State-selected minimum n-
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92429 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
size, and a State-selected minimum cell
size) the State identifies a large number
of LEAs, it may indicate the need for a
broad-based State effort to improve
practices and policies to address racial
and ethnic disparities in special
education.
In cases where small LEAs are
disproportionately, and inappropriately,
identified with significant
disproportionality due to the use of a
low minimum cell or n-size, it may be
appropriate for a State to review its data,
and consult with stakeholders and State
Advisory Panels, to determine whether
adjustments should be made to the
State’s implementation of the standard
methodology. Changes: We have amended
§ 300.647(b)(3) and (4) to no longer
restrict States to a minimum n-size of
10. Section 300.647(b)(1)(i) now
requires States to select reasonable
minimum cell and n-sizes, with advice
from stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. The rationales for
n-sizes and cell sizes that are not
presumptively reasonable which must
include a detailed explanation of why
the cell- and n-sizes chosen are
reasonable and how they help ensure an
appropriate analysis for significant
disproportionality. Comment: One commenter added
that, if States used a minimum n-size of
10, then many States and LEAs would
spend a significant amount of time,
money, and labor on addressing issues
that may not be able to be simply
changed by utilizing early intervening
dollars. Other commenters have
experienced issues with small n-sizes,
where LEAs are identified and must
develop solutions for problems that
rarely existed. Still more commenters
stated that, with an n-size of 10, it will
be virtually impossible for LEAs
identified with significant
disproportionality to correct the
disparity. One commenter expressed
concerns that flaws in the proposed
regulation—specifically, the potential
for LEAs to implement mandatory
comprehensive CEIS due a finding of
significant disproportionality that is the
result of small numbers of children—
will make it impossible to identify metrics that could evaluate the
connection between a finding of
significant disproportionality in an LEA
and improved outcomes for all children.
Other commenters generally stated
that a small LEA might be identified
with significant disproportionality due
to a few new families enrolling in the
LEA with a child already diagnosed
with autism. Discussion: As we note earlier in this
section, the Department has amended its
original proposal so that it no longer
restricts States to a minimum n-size no
greater than 10. Instead, the Department
will require States to set reasonable
minimum cell or n-sizes. We believe
this change to be responsive to the
comments raised by reducing the
likelihood that an LEA may be
identified with significant
disproportionality due to minor changes
in LEA enrollment. We agree with
commenters that States should focus on
systemic cases of significant
disproportionality—rather than LEAs
with simple numerical disparities based
on the enrollment or changing needs of
one or two children—and that the
statutory remedies provided under IDEA
section 618(d)(2) (20 U.S.C. 1418(d)(2))
will be most effective in addressing the
needs of LEAs with systemic racial and
ethnic disparities. Changes: As noted above,
§ 300.647(b)(1)(i) now requires States to
select reasonable minimum cell and n-
sizes, with advice from stakeholders,
including the State Advisory Panel,
subject to the Department’s
enforcement. Sections
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality. Comment: One commenter noted that
a minimum n-size of 10 was empirically
validated, and, based on literature,
could guarantee risk ratio reliability. Two commenters stated that there is
a significant increase in reliability in
moving from a minimum n-size of 5 to
10 and a slightly greater increase when
cell size moved up to 15. According to
one commenter, one State chose to use
a minimum n-size of 15, rather than 10, in recognition of slightly greater
reliability and LEA feedback. One
commenter supported giving States
flexibility to select a minimum n-size
between 10 and 15. Another commenter
supported a minimum n-size of 15 only
if States made a determination of
significant disproportionality based on a
single year of data.
Two commenters stated that using a
minimum n-size of 10 can lead to
problems with reliability when using
the risk ratio. The commenters stated
that, in the case of an n-size of 10 in the
denominator, very small numbers can
lead to unstable estimates of the risk
index, leading to large swings in the risk
ratio and a possible finding of
significant disproportionality for very
few children identified in the target
group. Commenters opposing a cap of
10 for the minimum n-size offered other
suggestions: A few suggested 20, many
suggested 30, and a few suggested 40.
One commenter stated that a minimum
n-size of 25 or higher has likely been
one method of reducing the
identification of significant
disproportionality.
Discussion: The Department generally
agrees with commenters that risk ratios
are not reliable when calculated for a
racial or ethnic group with too few
children. As multiple commenters have
expressed their concern that a minimum
n-size of 10 may be small, and have
provided a list of consequences that
may ensue if minimum n-sizes are too
low to safeguard against volatility (e.g.,
resistance to identifying children as
children with disabilities or identifying
children of a particular race or ethnicity
as having disabilities, inability of small
LEAs to resolve significant
disproportionality, vulnerability of
LEAs to small changes in enrollment),
we now believe that it is appropriate to
allow States flexibility to set their own
reasonable minimum cell and n-sizes.
We also find it appropriate that the
States consult with stakeholders prior to
setting minimum cell and n-sizes, as
was done in one State mentioned by a
commenter.
In the NPRM, the Department
proposed to limit States’ selection of
minimum n-size to a figure no larger
than 10, based on an understanding that
this figure represented an appropriate
balance between risk ratio reliability
and LEA inclusion. Bollmer, J., Bethel,
J., Garrison-Mogren, R., & Brauen, M.,
2007. However, upon further
examination of the study, which relied
on 2001–2002 data from a non-
representative, non-random sample of
three States—we now believe that the
study includes too many limitations to
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provide the basis to mandate a national
minimum n-size of 10.
In these final regulations, States must
set reasonable cell and n-sizes, and in
§ 300.647(b)(1)(iv)(A) and (B), we are
establishing a rebuttable presumption
that a minimum cell size of no greater
than 10 and n-size of no greater than 30,
respectively, are reasonable thresholds.
Again, as we stated earlier in this
section, support for these thresholds
includes information we have from the
IDEA State Supplemental Survey, which
shows that States tend to set their n-size
or cell size at 30 or less. We also note
that to the extent States publicly report
their calculations or share data with
stakeholders, the cell size of 10 is a
recognized standard in data privacy. We
do not have comparable or sufficient
support for a national n-size of less than
30. States have the option, but are not
required, to set the same cell or n-size
for each category of analysis. States
should consider, in consultation with
their stakeholders, the impact of
minimum n- and cell sizes in
conjunction with the risk ratio
thresholds they select for each category
of analysis. The Department encourages
States to consider a smaller minimum n-
size for categories of analysis where
LEAs have small numbers, such as
discipline. States, in making these
determinations in consultation with
their stakeholders, including State
Advisory Panels, must carefully balance
inclusion of LEAs and volatility.
Further, in certain circumstances such
as when coupled with a larger minimum
n-size, it may be reasonable for a State
to select a minimum cell size of zero or
one. However, the Department notes
that selecting different n- or cell sizes
based on race or ethnicity is problematic
and could raise issues of
constitutionality. As we evaluate
additional data and information in the
future, we may consider whether there
is additional guidance we can provide
to States about what constitutes a
reasonable cell or n-size. Changes: Section 300.647(b)(1)(i) now
requires States to select reasonable
minimum cell and n-sizes, with advice
from stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality.
Comments: Some commenters noted
that a minimum n-size of 10 is
unrealistic and will result in
unintended and inappropriate negative
consequences for the LEAs (including
charter schools) in one State. One
commenter observed that, in its State,
parent choice and charter schools create
unique configurations in enrollment
that may give the appearance of
significant disproportionality when a
minimum cell size of 10 is used. A large
number of commenters noted that the
Department must allow States to use
minimum n-sizes greater than 10 to
reduce the likelihood of ‘‘false
positives’’ due to small numbers. One
commenter claimed that a minimum n-
size of 10 would impact one State’s
ability to screen out false positive
findings of significant
disproportionality of White children,
given that many LEAs in the State are
homogenous. Discussion: As we note earlier in this
section, the Department has amended its
original proposal so that it no longer
restricts States to a minimum n-size no
greater than 10. Instead, the Department
will require States to set reasonable
minimum cell and n-sizes. Changes: As noted previously,
§ 300.647(b)(1)(i) now requires States to
select reasonable minimum cell and n-
sizes, with advice from stakeholders,
including the State Advisory Panel,
subject to the Department’s
enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality. Comment: A few commenters
described the experience of one State
that previously used a minimum n-size
of 10, with a risk ratio threshold of 2.0,
to review LEAs for significant
disproportionality. The commenters did
not provide the number of years taken into consideration. These commenters
stated that the State experienced a
number of unintended consequences.
First, the LEAs in the State perceived
the calculations to be an implicit quota
system, where LEAs delayed or refused
to evaluate children for possible
identification and parents were led to
believe that the LEA had already
exceeded a limit on the number of
children in their racial group that could
be identified. Second, LEAs questioned
the ethnicity reported by parents, and
more than one LEA provided photos of
individual children and requested that
their reported ethnicity be changed.
Third, when the State used a minimum
n-size of 10, it had to greatly increase
the amount of State staff time devoted
to identifying which calculations
produced false positives. Meanwhile,
both LEAs and State-level staff devoted
considerable resources to the creation of
corrective action plans and the
implementation of prevention activities
that impacted only one or two children.
Fourth, the approach to identifying
significant disproportionality often
resulted in calculations that were not
statistically significant. The commenter further stated that,
after the State adjusted its minimum n-
size and risk ratio threshold to align
with the State’s accountability plan, it
had better confidence that those LEAs
that were identified had potential to
benefit from the required
comprehensive CEIS and corrective
action planning. One commenter provided a list of
factors that, according to the
commenter, unduly influenced an LEA’s
risk of identification with significant
disproportionality when the State’s
minimum n-size was 10. The list
includes small, rural LEAs with court-
placed children from urban areas,
families who adopt several non-White
children with disabilities, charter
schools with a special education focus,
LEAs receiving families of color moving
out of urban areas, and single events
resulting in the discipline of multiple
children. Discussion: We appreciate
commenters’ sharing their experience
implementing IDEA section 618(d). The
example provided highlights some of
the methods that comprise the standard
methodology as required under
§ 300.647, including a minimum n-size
and a risk ratio threshold. We think the commenters experience
with a minimum n-size of 10 and how
it potentially contributed to the
inappropriate identification of LEAs
with significant disproportionality is
instructive. We note that, along with a
minimum n-size of 10, the State also
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used a relatively low risk ratio threshold
of 2.0, which could have exacerbated
issues of inappropriate identification of
LEAs with significant
disproportionality. The Department
believes that it is important for States to
consider both the impact of the
reasonable minimum cell and n-sizes
they select in conjunction with their
selection of reasonable risk ratio
thresholds. These factors can all
potentially contribute to an
inappropriate determination of
significant disproportionality.
As we note earlier in this section, the
Department has amended its original
proposal in the NPRM, which should
address the concerns raised by these
and other commenters. These final
regulations do not restrict States to a
minimum n-size of no greater than 10.
Instead, the Department will require
States to set reasonable minimum cell
and n-sizes. Finally, we disagree with the
commenters’ suggestion that LEAs
should only be identified with
significant disproportionality if they
have racial and ethnic disparities that
are statistically significant. Given that
States have access to population data on
the identification, placement, and
discipline of children with disabilities,
tests of statistical significance are
inappropriate for States’ determination
of significant disproportionality given
that those analyses are intended to be
used to draw inferences when working
with sample data. Changes: As noted previously,
§ 300.647(b)(1)(i) now requires States to
select reasonable minimum cell and n-
sizes, with advice from stakeholders,
including the State Advisory Panel,
subject to the Department’s
enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under
§ 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality. Comment: A number of commenters
expressed concerns that the Department
provided insufficient research support
for its minimum n-size in proposed
§ 300.647(b)(3) and (4). Specifically,
many commenters stated that there is no data available to support 10 as an
appropriate number for a minimum n-
size. Other commenters noted that the
Department provided little rationale for
selecting 10 for the minimum n-size,
instead of any other number.
Discussion: The Department
recognizes commenters’ concerns
regarding the appropriateness of the
research base to support our proposal to
limit States to a minimum n-size no
larger than 10. At the time of the NPRM,
the Department’s proposal was based on
an understanding that this figure
represented an appropriate balance
between risk ratio reliability and LEA
inclusion. However, upon further
examination of the study, which relied
on 2001–2002 data from a non-
representative, non-random sample of
three States, we now find that the study
includes too many limitations to
provide a basis for a minimum n-size of
10. Bollmer, J., Bethel, J., Garrison-
Mogren, R., & Brauen, M., 2007. Accordingly, the Department has
amended the regulation so that it does
not mandate a national minimum n-size.
We will, rather, specify that States must
set, with input from stakeholders,
reasonable minimum n-size and cell
sizes. In addition, § 300.647(b)(1)(iv)(A)
and (B) establish a rebuttable
presumption that a minimum cell size
of 10 and n-size of 30, respectively, are
reasonable thresholds. Again, as we
stated earlier, Department review of data
submitted through the IDEA State
Supplemental Survey for school year
2013–14 found that States that used risk
ratios in their determinations of
significant disproportionality tended to
set their cell-size or n-size requirements
at 30 or less. Based on these data, the
Department determined that cell-sizes of
no greater than 10 and n-sizes of no
greater than 30 would allow the
majority of States currently using risk
ratios to retain their already established
population requirements. We note that
to the extent States publicly report their
calculations or share data with
stakeholders, the cell size of 10 is a
recognized standard in data privacy. Changes: Section 300.647(b)(1)(i) now
requires States to select reasonable
minimum cell and n-sizes, with advice
from stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. We have added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all n- and cell sizes developed under § 300.647(b)(1)(i)(B) and (C) and the
rationale for each. Rationales for n- and
cell sizes that are not presumptively
reasonable must include a detailed
explanation of why the cell- and n-sizes
chosen are reasonable and how they
help ensure an appropriate analysis for
significant disproportionality.
Comment: A large number of
commenters provided input as to
whether the Department should allow
States to set a minimum cell size—to
apply to the numerator when
calculating risk for a racial or ethnic
group—as well as the appropriateness of
particular minimum cell sizes. These
commenters strongly cautioned the
Department against limiting States
solely to a minimum n-size of 10 when
reviewing racial or ethnic groups within
an LEA, as, in the absence of any
consideration for the minimum cell size,
these reviews will lead to false positive
identifications of LEAs with significant
disproportionality. A large number of
commenters suggested that the
Department allow States to adopt a
minimum cell size, particularly when
reviewing for significant
disproportionality in the identification
of children with disabilities, to decrease
the likelihood of false positive
identifications of significant
disproportionality. A few commenters stated that using
only a minimum n-size of 10 allows
very small groups of children—and
potentially only one identified child (or
one newly enrolled child with a
disability)—to result in the LEA
appearing to have significant
disproportionality. Other commenters
warned that, based on their previous
experience with small n-sizes, having
only one child in a subgroup has
previously caused LEAs to be cited for
significant disproportionality. One
commenter provided examples of the
number of LEAs, by State, that would be
flagged for significant
disproportionality, based on one child,
if the Department’s original proposal
were implemented. A few commenters stated that,
without the adoption of a minimum cell
size, there is an increased likelihood
that a risk ratio of a certain size will be
likely to have occurred by chance.
Another commenter argued that the
identification, placement, or discipline
of a single child from a particular racial
or ethnic group could occur by chance. Discussion: The Department
appreciates the commenters’ suggestion
to allow States to select a minimum cell
size. The standard methodology, as
originally proposed in § 300.647, did
not contemplate minimum population
requirements other than minimum
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n-size when examining racial and ethnic
groups within LEAs for significant
disproportionality. However, we agree
with the commenters that States should
be allowed to use minimum cell sizes,
as a component of the standard
methodology in addition to a minimum
n-size, in order to prevent inappropriate
determinations of significant
disproportionality, such as a finding of
significant disproportionality based
only on one or two children.
States will have the flexibility to set
their own reasonable minimum cell
sizes, limited, as is the selection of risk
ratio threshold, by consultation with
stakeholders, including the State
Advisory Panels. It should be noted that
States have the option to set a minimum
cell size of zero or one if the State and
its stakeholders believe their selection
of a reasonable minimum n-size
addresses the issues associated with
small populations or low incidence
categories of analysis. Accordingly, we have amended the
regulation to allow States to select
reasonable minimum cell sizes in the
standard methodology. Changes: We have amended proposed
§ 300.647(b)(1) to require States to select
a reasonable minimum cell size with
advice from stakeholders, including the
State Advisory Panel, subject to the
Department’s enforcement. Comment: One commenter noted that
most disabilities are rare events,
meaning that only one or two percent of
the children will be identified as having
them. As a result, when analyzing LEA-
level data, many LEAs will have no
children with a given disability, and for
an LEA in which children are identified,
the result may be a large risk ratio. One
commenter stated that LEAs with only
10 children in any given racial or ethnic
group will be automatically
disadvantaged for low incidence
disabilities like autism, intellectual
disability, and emotional disturbance,
which the commenter cited as having an
incidence rate of one percent or less.
The commenter concluded that, even if
an LEA qualifies only one child of a
racial or ethnic group in any of the three
categories, it will be found to have
significant disproportionality. Discussion: We appreciate these
commenters for raising their concerns
regarding the low incidence of some
impairments. In general, we agree with
the commenters that LEAs with low
incidence rates are likely to have more
volatile risk ratios. We have amended proposed
§ 300.647(b)(1)(i) to require States to
select reasonable minimum cell sizes.
With this change, States’ use of
minimum cell sizes will prevent the inappropriate identification of LEAs
with low incidence rates to the extent
that those rates coincide with small
populations of children.
Changes: Section 300.647(b)(1)(i)(B)
requires States to set reasonable
minimum cells sizes. Comment: Two commenters warned
that LEAs identified with significant
disproportionality due to only one or
two children will continue to be
identified due to those children so long
as they remain in school. Another
commenter argued that the
identification, placement, or discipline
of a single child from a particular racial
or ethnic could occur by chance, and is
not sufficient to demonstrate bias or
discrimination within an LEA. A few
commenters expressed concern that, if
LEAs are identified with significant
disproportionality based on one or two
children, the regulation could
discourage LEAs from identifying
children of color with disabilities, or
encourage LEAs to stigmatize the child
that is identified. One commenter stated
that there may be FERPA issues
inherent in basing a determination of
significant disproportionality on a
single child, especially if the child’s
recent enrollment pushes the LEA’s risk
ratio over the State’s threshold. Discussion: We agree with the
commenters that a number of negative
outcomes could result if LEAs are at risk
of being identified with significant
disproportionality based on the
identification, placement, or discipline
of only one or two children. We have
amended proposed § 300.647(b)(1) to
require States to select a reasonable
minimum cell size so that, when a racial
or ethnic group of interest within an
LEA has too few children experiencing
a particular outcome, the State is not
required to calculate the risk ratio for
that racial or ethnic group, for that
outcome, for that LEA. We believe this
amendment to be responsive to the
concerns the commenters’ raised. Changes: Section 300.647(b)(1)(i)(B)
requires States to set a reasonable
minimum cell size. Comment: To avoid risk ratio
volatility, a few commenters noted that
minimums should apply to both the
numerator and denominator. These
commenters indicated that allowing
States to apply the minimum cell size to
the numerator of the risk calculations
for the target racial or ethnic group
would ensure that the risk calculations
are based on a sufficient number of
identified children. One commenter
noted that, among the current
population requirements employed by
the States, one requirement was a
minimum cell size for all impairments. Discussion:
We agree with
commenters that allowing the use of a
minimum cell size and a minimum n-
size will help prevent risk ratio
volatility. We have amended the
regulation to allow States to set both a
reasonable minimum cell size and a
reasonable minimum n-size. Changes: Section 300.647(b)(1)(i) now
requires States to select reasonable
minimum cell and n-sizes, with advice
from stakeholders, including the State
Advisory Panel, subject to the
Department’s enforcement. Section
300.647(b)(1)(iv)(A) and (B) state that a
minimum cell size of no greater than 10
and a minimum n-size of no greater than
30, respectively, are presumptively
reasonable. Comment: One commenter suggested
that the Department allow States the
flexibility to choose a minimum cell
size between two and four, and not so
high that the State overlooks
disproportionality for low-incidence
populations. The commenter noted that,
for one western State, if the minimum
cell size is set at 10, only about 10
percent of significant disproportionality
findings would be for non-White
children because of the small size of
those populations. A number of
commenters supported a minimum of
10, if applied to both the minimum cell
size and minimum n-size. Two
commenters suggested that a minimum
cell size of at least six or greater would
remove the possibility of an LEA being
flagged for significant disproportionality
based on chance. A few commenters
noted that a minimum cell size and a
minimum n-size for the target racial and
ethnic group are necessary to avoid the
inappropriate identification of LEAs and
requested a minimum cell size of five to
avoid false positive identification of
significant disproportionality. Several
commenters suggested the use of
specific minimum cell sizes when
calculating the risk of identification of
a particular disability for a racial or
ethnic group. A few commenters
encouraged a minimum cell size of five
children with a particular disability.
Many more commenters encouraged
minimum cell size of 10 children with
a particular disability. One commenter
noted that a minimum cell size of at
least 10 is necessary for reliability and
privacy and to avoid findings of
significant disproportionality based on
very small numbers of children. This
commenter supported giving States
flexibility to select a minimum cell size
between 10 and 15. A few commenters
noted that a minimum cell size of five
would result in fewer false positive
identification of significant
disproportionality.
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Discussion: The Department
appreciates the suggestions to select
various minimum cell sizes in order to
limit risk ratio volatility and the
potential for inappropriate finding of
significant disproportionality. In
response to these comments, these final
regulations provide States the flexibility
to set their own reasonable minimum
cell sizes, limited, as is the selection of
risk ratio threshold, by consultation
with stakeholders, including the State
Advisory Panels and subject to the
Departments monitoring and review for
reasonableness. Accordingly, as with n-
size, to ensure that the Department may
accurately and uniformly monitor all
cell sizes, we have added a requirement
that each State report to the Department
the cell sizes it selects and the rationale
for selecting each. The Department has
not yet determined the precise time and
manner of these submissions, but it will
do so through a subsequent information
collection request. States are not
obligated to comply with this reporting
requirement until the Office of
Management and Budget approves the
Department’s request. As to reasonableness of cell sizes in
general, the Department assumes that a
minimum cell size of up to 10 may be
reasonable for most States. Of
commenters that suggested a particular
minimum cell size, all but one
requested that the Department allow
States to use a minimum cell size of up
to 10. The Department also found that—
based on a review of the SY 2013–2014
State Supplement Survey (SSS)—States
that used risk ratios in their
determinations of significant
disproportionality tended to set their
cell-size or n-size requirements at 30 or
less. Based on these data, the
Department determined that cell- of 10
and n-sizes of 30 would allow the
majority of States currently using risk
ratios to retain their already established
population requirements. We note that
to the extent States publicly report their
calculations or share data with
stakeholders, the cell size of 10 is a
recognized standard in data privacy. Further, when reviewing States’
minimum cell sizes for reasonableness,
the Department may consider the same
criteria used for minimum n-size, with
one addition: the Department is more
likely to consider a minimum cell size
reasonable if, in comparison to a lower
minimum cell size, it substantially
reduces the potential that an LEA will
be identified with a significant
disproportionality based on small
fluctuations in the number of children. The Department encourages States to
consider a smaller minimum n-size for
categories of analysis with particularly low incidence, as appropriate, in order
to include a larger percentage of LEAs
in the review for significant
disproportionality. Further, in certain
circumstances such as when coupled
with a larger minimum n-size, it may be
reasonable for a State to select a
minimum cell size of zero.
The Department will continue to
collect data and review research to help
refine the selection of reasonable
minimum cell sizes in order to ensure
that States are reviewing as many LEAs
for significant disproportionality as
possible while limiting the volatility of
risk ratios if cell sizes that are too low.
The obligation to report cell sizes and
their rationales will assist in this effort. Changes: The Department has added
§ 300.647(b)(7), which requires States to
report to the Department, at a time and
in a manner specified by the Secretary,
all cell sizes selected under
§ 300.647(b)(1)(i)(B) and the rationale
for each. Rationales for n- and cell sizes
that are not presumptively reasonable
must include a detailed explanation of
why the cell- and n-sizes chosen are
reasonable and how they help ensure an
appropriate analysis for significant
disproportionality. Comment: One commenter suggested
that the Department consider scaling the
minimum n-size to be larger for lower
incidence disabilities. Discussion: As we note earlier in this
section, § 300.647(b)(1) requires States
to select reasonable minimum cell sizes.
Nothing in these final regulations
precludes a State from setting higher
minimum cell sizes or n-sizes for
particular categories of analysis based,
in part, on the level of incidence of a
particular disability and the potential
impact it could have on the volatility of
calculated risk ratios. However, as noted
previously, any minimum cell size or
n-size set by the State, in consultation
with stakeholders, must be reasonable.
With this change, States’ use of
minimum cell sizes, along with States’
flexibility to use up to three consecutive
years of data to make a determination of
significant disproportionality, should
prevent the inappropriate identification
of LEAs due to low incidence rates in
either the racial or ethnic group of
interest or the comparison group. Changes: None.
Comment: One commenter argued
that a minimum cell size would be
particularly important when analyzing
LEAs for significant disproportionality
due to suspensions and expulsions. The
commenter stated that LEAs cannot
fully control the administration of
disciplinary removals, as State or LEA
regulations may require a child to be
moved when weapons or drugs are brought in the school. The commenter
concluded that a minimum cell size
would prevent those incidents from
resulting a finding of significant
disproportionality for the LEA.
Discussion: We agree with the
commenter that a single incident that
requires a mandatory disciplinary
removal generally should not result in a
finding of significant disproportionality
by race and ethnicity and that States
should have the flexibility to focus on
their efforts on LEAs with consistently
high risk ratios, which may indicate
systemic racial and ethnic disparities in
need of intervention. We believe that
the standard methodology is responsive
to the commenter, as, under
§ 300.647(b)(1), States may establish
reasonable minimum cell sizes and,
under § 300.647(d)(1), States may use up
to three consecutive years of data prior
to making a determination of significant
disproportionality. However, we also believe that, in
cases where an LEA experiences
multiple incidents requiring a
mandatory removal, and, as a result, a
particular racial or ethnic group faces
consistently disproportionate treatment
over the course of multiple years, it
would be appropriate for the LEA to be
identified with significant
disproportionality. Changes: None.
Comments: Two commenters noted
that, when the n-size of a risk
calculation falls below 20 children, at
least 6 children are required in the
numerator to achieve sufficient
statistical power for results to be
reliable. Discussion: The Department agrees
that the selection of minimum cell sizes
should be made with consideration for
minimum n-sizes and encourages States
to take any interactions between the two
into account when setting these two
minimums. Further, we would
encourage States to also take into
consideration how its particular
combination of reasonable risk ratio
threshold, minimum n-sizes, and
minimum cell sizes will help or hinder
its efforts to identify significant
disproportionality. Changes: None.
Comment: A few commenters
responded to Directed Question #6 in
the NPRM, which inquired whether the
Department’s proposed limit on
minimum n-size aligned with State
privacy laws. A few commenters indicated that
Department’s proposal to allow States to
set a minimum n-size up to 10 was
compliant with State privacy laws.
Other commenters noted that a
minimum n-size of 10 would not
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comply with State privacy laws, but that
a minimum cell size of 10 would. One
of these commenters noted that a
minimum cell size of less than 10 would
raise privacy concerns. One commenter
stated that a Federal statistical agency
recommended a minimum population
requirement of 10 for confidentiality
purposes. (The Department was unable
to determine whether the commenter
intended to refer to cell size or n-size.)
A few commenters spoke more
generally about the relationship
between minimum cell sizes, minimum
n-sizes, and privacy. One commenter
noted that a minimum cell size
requirement would resolve the issue of
publishing data that violates privacy
laws. However, a few commenters stated
that, as there did not appear to be any
requirement that States make the data
utilized in the risk ratio calculations
publicly available, the issue of privacy
was not applicable. One commenter
questioned how, if the Department
limits minimum n-sizes to 10 for
significant disproportionality, and
States choose higher minimum n-sizes
for other calculations to safeguard
privacy, the inconsistency would be
explained to the public.
One commenter recommended that
the Department research the
implications of its proposal for existing
State privacy laws with the goal of
ensuring the privacy rights of children
with disabilities. Another commenter
generally recommended that the
Department require FERPA protections
in situations in which there are fewer
than 10 children in a group.
Discussion: We appreciate the
thoughtful comments that we received
on this issue and recognize that, at
particular minimum n-sizes and
minimum cell sizes, States would
potentially have to suppress some data
prior to public reporting, as they do in
other reporting instances. As State and
Federal privacy laws apply, additional
privacy protections in these regulations
are not necessary.
Changes: None.
Comment: A number of commenters
requested that States have flexibility to
apply both a minimum n-size and a
minimum cell size to the comparison
group. Commenters indicated that
allowing States to apply the minimum
cell size to the numerator of the risk
calculations for the comparison group
would ensure that the risk calculations
are based on a sufficient number of
identified children. One commenter
suggested that the Department allow
States to adopt a minimum cell size that
will decrease the likelihood of
identifying an LEA as having significant disproportionality when the results are
likely to have occurred by chance.
Another commenter strongly opposed
the use of a minimum cell size for the
comparison group, if the result was that
the racial or ethnic group of interest
would not be reviewed for significant
disproportionality. The commenter
expressed concern that the starkest
disparities would be overlooked in
racially homogenous LEAs.
Discussion: In reviewing the
commenters’ suggestions and
perspectives, we were not always
certain whether the commenters
assumed that a population requirement,
when applied to a comparison group,
would (1) determine whether a
particular racial or ethnic group in an
LEA would be exempted from a review
of significant disproportionality, or (2)
determine whether the alternate risk
ratio was necessary to review that racial
or ethnic group.
We believe the challenge associated
with an inappropriately low minimum
cell size or minimum n-size for racial
and ethnic groups is similar to those
that arise when dealing with
comparison groups—namely, risk ratio
volatility. For this reason, it is our intent
that, under § 300.647(b)(5), States will
use their reasonable minimum cell sizes
and n-sizes to determine whether there
is an adequate number of children in the
comparison group to calculate the risk
ratio or if the alternate risk ratio must
be used.
In general, the Department does not
believe that the absence of a comparison
group—or a small comparison group—
within an LEA is a sufficient basis to
exclude a racial or ethnic group from
States’ review for significant
disproportionality. It is the
Department’s intention, rather, that
States calculate the alternate risk ratio—
using a State-level comparison group—
when the comparison group within the
LEA includes too few children for a
reliable analysis or when the risk to the
comparison group within the LEA is
zero.
However, we have also added
§ 300.647(c)(2) to clarify that, when the
alternate risk ratio is required, and the
comparison group within the State does
not meet the minimum cell size or
minimum n-size, the State is not
required to calculate either the risk ratio
or alternate risk for the applicable racial
and ethnic group and category.
Changes: We have added
§ 300.647(c)(2) to allow States to not
calculate either the risk ratio or alternate
risk ratio for a given racial or ethnic
group if the comparison groups at the
LEA level and State level do not meet the State’s minimum n-sizes and
minimum cell sizes.
Comment: A large number of
commenters strongly suggested that the
Department not mandate an n-size of 10
be applied to number of children in the
comparison group as this might lead to
false positives. Discussion: As we note earlier in this
section, the Department has amended its
original proposal so that it no longer
restricts States to a minimum n-size no
greater than 10. Instead, the Department
will require States to set reasonable
minimum n-sizes. We believe this
change to be responsive to the
comments raised by reducing the
likelihood that an LEA may be
identified with significant
disproportionality due to small numbers
of children. Changes: None.
Comment: One commenter stated that
a minimum cell size need not apply to
the comparison group, as the
commenter recommends that States use
a different approach, including a risk
ratio and risk difference to examine
LEAs that are mostly homogenous. The
Department interprets the comment to
suggest that, as risk difference should be
used to analyze homogenous LEAs, and
can be calculated even when a
comparison group has a cell size of zero,
there is no need for a minimum cell size
for the comparison group. Discussion: As we explain earlier in
Risk Ratios (§ 300.646(b);
§ 300.647(a)(2); § 300.647(a)(3);
§ 300.647(b)), we decline to allow States
to use risk difference to examine LEAs
for significant disproportionality. States
are required under § 300.646(b)(3), (4),
and (5) to calculate the risk ratio—or the
alternate risk ratio—and these methods
cannot be calculated when the
comparison group has a cell size of 0,
and cannot be calculated reliably when
the comparison group has a low cell or
n-size. For these reasons, we disagree
with the commenter and will require
States to apply minimum cell sizes to
comparison groups, under
§ 300.646(b)(5), to determine whether
the alternate risk ratio will be used in
place of the risk ratio. Changes: None.
Comments: A number of commenters
requested that, without the flexibility to
include both a minimum n-size and a
minimum cell size, States be allowed to
include a test of statistical significance
to determine whether the risk ratio is
statistically different from the risk ratio
threshold. Other commenters inquired
about the use of statistical significance
tests on specific pieces of the risk
calculation prior to a finding of
significant disproportionality.
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Discussion: Given that States have
access to population data on the
identification, placement, and
discipline of children with disabilities,
tests of statistical significance would be
inappropriate. Further, the Department notes that
commenters generally wanted States to
have the flexibility to conduct these
tests in the absence of flexibility to use
minimum cell sizes. Given that States
may set their own reasonable minimum
cell sizes and minimum n-sizes, we
believe the commenters’ concerns to be
addressed without allowing the use of
statistical significance testing. Changes: None.
Comments: A large number of
commenters requested that the
Department offer States flexibility to
determine how to apply a minimum
population requirement to LEAs. These
commenters wanted States to have
flexibility to add additional criteria
beyond the minimum n-size to avoid
identifying significant
disproportionality that is simply the
result of small numbers. One
commenter noted that a minimum
n-size of 10 fails to account for the
overall size of an LEA. Another
commenter noted that one State uses a
population requirement for the general
student population. A few commenters
encouraged the Department to allow
States to consider, in implementing the
standard methodology, the size of the
racial and ethnic group size in relation
to the size of the LEA. One commenter
requested flexibility to use additional
criteria beyond a minimum n-size, such
as requiring 30 or more children with an
IEP for calculations. Discussion: The Department
recognizes that there are multiple ways
that States could use data on the
number of children in an LEA to
determine whether to exclude that LEA
from its analysis for significant
disproportionality. For example, it is
possible to devise a system in which
LEAs that do not have at least 500
children enrolled are not subject to the
standard methodology, or one in which
an LEA is excluded from analyzing a
particular racial or ethnic group if that
group constitutes less than 1 percent of
total enrollment in an LEA. However,
we believe that exclusions on these
bases would be inappropriate, as they
are not closely related to concerns about
data volatility and could result in an
inappropriately high number of LEAs
being excluded. Further, as every child
with a disability is entitled to a free
appropriate public education in the
least restrictive environment, regardless
of the size of the LEA or the proportion
of enrolled children who are in their particular racial or ethnic subgroup, we
believe it would be inappropriate to
allow the exclusion of LEAs for reasons
unrelated to data volatility. We believe
that State flexibility to set reasonable
minimum cell sizes and minimum n-
sizes is sufficient to address
commenters’ concerns regarding small
numbers of children.
Changes: None.
Commenter: A commenter
recommended that the Department
require States to report risk ratios that
are corrected—using advanced
mathematical methods of correction or
estimation—when LEAs have a cell size
of zero. Discussion: In developing the
standard methodology, the Department
placed a priority on selecting methods
that were easy to comprehend, that
supported transparency, and that
facilitated comparisons between States’
approaches to identifying significant
disproportionality. With a population
requirement, such as the minimum cell
size included in § 300.647(b)(1), LEAs
can easily determine which racial and
ethnic groups the State will review for
significant disproportionality, and what
categories of analysis will be reviewed.
Further, they can calculate for
themselves the likely outcome of the
review. While the commenters’ suggestion
might enable States to review additional
LEAs for significant disproportionality,
it would do so at the cost of
transparency, given the complexity of
the analysis. For this reason, the
Department declines to require States to
use this analysis. Changes: None.
Comment: One commenter stated that
population requirements have varied
between LEAs, with some having a
minimum of just 9 children while other
LEAs have set the minimum as large as
30 children. The commenter expressed
concern that population requirements
that require a greater number of children
may result in significant
disproportionality being missed entirely
in some LEAs. Discussion: We agree with the
commenter that, in general, LEAs with
significant disproportionality may be
overlooked if either minimum n-sizes or
minimum cell sizes are too large. For
this reason, under § 300.647(b)(1), States
will be required to set reasonable
minimum cell sizes and reasonable
minimum n-sizes with input from State
Advisory Panels, and the States’ chosen
population requirements would also be
subject to the Department’s enforcement
of reasonableness. Further, this
provision requires States to identify and
apply minimum n-sizes and minimum cell sizes. LEAs will not be permitted to
set their own population requirements
to determine whether the LEA, or if the
racial and ethnic groups within the
LEA, will be reviewed by the State for
significant disproportionality.
Changes: None.
Alternate Risk Ratios (§ 300.647(a)(1);
§ 300.647(b)(5); § 300.647(c)(2)) Comment: A number of commenters
responded to Directed Question #7 in
the NPRM, which requested public
input regarding the use of the alternate
risk ratio method in situations where
the comparison group does not meet the
minimum n-size. Directed Question #7
also asked for input on whether the use
of the alternate risk ratio method would
be appropriate in other situations. Some commenters opposed the use of
an alternate risk ratio method. Of these,
some stated that an alternate risk ratio
method would seldom be appropriate
because, in some States, few LEAs have
demographics that are similar to the
State’s overall demographics. This
commenter suggested that using an
alternate risk ratio method will increase
the likelihood of false positive
identification of LEAs with significant
disproportionality. A number of
commenters expressed concern that,
with the alternate risk ratio, LEAs
would be dependent upon States to
provide the data to calculate their risk
ratios. These commenters expressed a
preference for calculations that LEAs
would run independent of the State.
Another commenter expressed
opposition to a standard methodology in
general and stated that the alternate risk
ratio method is similarly deficient
because it fails to take into account
factors, such as poverty, that could
affect the need for special education
services. Similarly, some commenters
stated that, while the use of an alternate
risk ratio method may be appropriate in
certain situations, the Department
should further consider allowing States
to use methodologies other than a risk
ratio. A few commenters expressed support
for the use of an alternate risk ratio
approach in limited situations, such as
when subgroup sizes are small in
number, or when the risk ratio is
volatile across three years of data. Other
commenters supported the Department’s
proposal to allow States to use the
alternate risk ratio in instances where
the total number of children in a
comparison group is less than 10 or
when the risk to children in a
comparison group is zero. Discussion: Under proposed
§ 300.647(b)(5), States would have used
the alternate risk ratio, instead of the
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risk ratio, whenever the comparison
group at the LEA-level had an n-size of
fewer than 10 children (or children with
disabilities, as appropriate) or had a risk
of 0 percent (i.e., had a cell size of 0).
This requirement was designed to
prevent the possibility that States might,
from LEA to LEA, choose from either
the risk ratio or alternate risk ratio with
the goal of avoiding an identification of
significant disproportionality.
As the Department has revised
§ 300.647(b)(1) to allow States, with
input from stakeholders (including the
State Advisory Panel), to set reasonable
minimum n-sizes and minimum cell
sizes, we have likewise revised
§ 300.647(b)(5) to require States the use
of the alternate risk ratio when, within
an LEA, the comparison group does not
meet either a reasonable minimum
n-size or minimum cell size. While the
flexibility to determine reasonable
minimum n-sizes and minimum cell
sizes will not allow States the option to
simply choose, from LEA to LEA,
whether to apply the alternate risk ratio
due to concerns about risk ratio
volatility, it would provide States the
ability to avoid risk ratio volatility due
to small comparison group sizes.
Likewise, the ability of a State to
determine reasonable minimum cell
sizes and minimum n-sizes should
provide sufficient flexibility to avoid
false positives identification of
significant disproportionality that might
result when examining small target or
comparison groups.
With respect to the comment
regarding the potential difficulty in
obtaining State data for use in the
alternative risk ratio, we note that the
requirement to analyze LEAs is
applicable to States, and States have
access to the State-wide data necessary
to use when applying the alternate risk
ratio method. In reviewing LEAs for
significant disproportionality with
respect to identification, we generally
expect that States will use the same
IDEA section 618 data that is reported
to the Department for data regarding
children with disabilities, and data
submitted to the Institute for Education
Sciences for the Common Core of Data,
for enrollment data. OMB Control No.
1875–0240. In reviewing LEAs for
significant disproportionality with
respect to placement or discipline, we
generally expect that States will use the
same section 618 data reported to the
Department. For IDEA section 618 data,
discipline data is a cumulative count
from July 1st through June 30th, while
IDEA section 618 child count data is a
point-in-time count that occurs in the
fall. OMB Control No. 1875–0240. We disagree with commenters that the
Department should allow States to
consider additional factors that might
affect significant disproportionality.
Under the current regulations, the GAO
noted that ‘‘the discretion that states
have in defining significant
disproportionality has resulted in a
wide range of definitions that provides
no assurance that the problem [of
significant disproportionality] is being
appropriately identified across the
nation.’’ It was this finding by the GAO,
public comments the Department
received in a response to a 2014 request
for information (79 FR 35154), and the
Department’s review of State definitions
of significant disproportionality that
convinced the Department to issue
regulations to require that all States
follow a standard methodology. The
Department believes that the proposed
standard methodology—including the
use of the risk ratio or alternative risk
ratio method—is a necessary step to
achieve those goals. Changes: We have revised
§ 300.647(b)(5) to require States the use
of the alternate risk ratio when, within
an LEA, the comparison group does not
meet either a reasonable minimum n-
size or minimum cell size, as
determined by the State in accordance
with revised § 300.647(b)(1). Comment: A number of commenters
suggested the Department provide the
flexibility to allow States to determine
when and under what circumstances the
alternate risk ratio method would be
most appropriate. One of these
commenters noted that one State
currently uses the alternate risk ratio in
all instances and urged the Department
to allow this State to continue to do so
rather than limiting the use of the
alternate risk ratio method to those
situations when the risk ratio method is
not applicable. According to the
commenter, the LEAs in this State are
familiar with the alternate risk ratio and
understand its calculation. In addition,
the commenter asserted that the
alternate risk ratio provides the ability
for comparability of results among the
LEAs in the State. Other commenters asserted that while
flexibility to use the alternate risk ratio
may be appropriate, a requirement to
use the alternate risk ratio method was
not. Some of these commenters argued
that the alternate risk ratio, which uses
the State’s risk for the comparison
group, is inappropriate in States in
which the racial and ethnic composition
of LEAs differs significantly from that of
the State. These commenters indicated
that allowing States to use a minimum
cell size for both the racial or ethnic
group of interest and the comparison group would eliminate the need for the
alternate risk ratio calculation.
Another commenter noted that the
use of an alternate risk ratio for some
LEAs or some subgroups within an LEA
will create disparities in the application
of the regulation. The commenter
requested that States have the flexibility
to use either the risk ratio or the
alternate risk ratio for all of the LEAs
and subgroups within the State. Still another commenter suggested
that the Department allow, but not
require, the alternate risk ratio method,
stating that, while the alternate risk ratio
may solve the problem of low cell size
for the comparison population, it
precludes an accurate measure of
disproportionality because it relies on a
comparison of two dissimilar
populations. According to the
commenter, if referral rates in an LEA
are high in general, application of the
risk ratio method would not suggest
significant disproportionality; use of the
alternate risk ratio method, however,
where the LEA’s generally high referral
rates would be compared to the State’s
average referral rates, would result in all
groups being found to be
disproportionate. This commenter
further stated that the alternate risk ratio
will create a substantial risk in States
with predominantly White rural areas
that a large number of LEA findings will
be due to significant overrepresentation
for White children. The commenter
questioned whether Congress, in
framing IDEA in 2004, intended to
address the disparate treatment of White
children. The commenter argued that,
while the issue of over-referral to
special education could be an issue for
OSEP or SEAs to address,
comprehensive CEIS should be a vehicle
to monitor significant
disproportionality, not referral rates. Another commenter noted that, when
an LEA suspends just one or two
children of one racial or ethnic group
and none of any other racial or ethnic
group, the alternate risk ratio will kick
in and, due to small numbers that
produce a high risk for one particular
racial or ethnic group, a high alternate
risk ratio will be produced and trigger
a finding of significant
disproportionality Other commenters
arrived at a similar conclusion: They
advised the Department to not require
the use of the alternate risk ratio
calculation as, according to them, it
only provides a viable option for
examining racial or ethnic disparities in
a limited number of circumstances (e.g.,
when the comparison group does not
meet the minimum n-size or cell size),
failing to address very small target
populations.
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Discussion: We appreciate the
comments regarding the required use of
the alternative risk ratio. With respect to
comments suggesting that the
Department permit States to apply the
alternate risk ratio whenever they deem
it appropriate, we reiterate that the
alternative risk ratio may be used only
when the risk ratio method is not
available. As we stated in the NPRM, it
is the Department’s position that,
whenever possible, analyses for
significant disproportionality under
IDEA section 618(d) should compare
identification, placement, and
discipline rates in an LEA to those rates
for other racial and ethnic groups in the
same LEA. We disagree with commenters
suggesting that States should have
flexibility to exclude from a review of
significant disproportionality those
racial or ethnic groups within LEAs that
do not have a sufficiently large
comparison group. For similar reasons,
we disagree with commenters objecting
to the alternate risk ratio due to
demographic differences between the
State and LEA. The Department believes
that, in racially or ethnically
homogenous LEAs—including rural,
predominantly White districts—and
LEAs with markedly different
demographic characteristics than a
State, there is a possibility that a
particular racial or ethnic group is
identified, placed, or disciplined, at
markedly higher rates than their peers.
In these cases, the absence of a
comparison group should not excuse
either the State or the LEA from their
responsibility under IDEA section
618(d) to identify and address
significant disproportionality. We disagree with the suggestion that
IDEA section 618(d) was not intended to
address significant disproportionality
that impacts White children. The plain
language of IDEA section 618(d) (20
U.S.C. 1418(d)) requires States to
identify significant disproportionality,
based on race or ethnicity, without any
further priority placed on specific racial
or ethnic groups. For that reason, the
Department believes that the statute
directs States to address significant
disproportionality impacting all
children with disabilities. We further disagree with commenters
that an alternate risk ratio requirement
does not measure racial and ethnic
disparity. Most measures of racial and
ethnic disparity include some
comparison of risk; in the case of the
alternate risk ratio, the comparison is
not to a State risk index, but to a State-
level comparison group (e.g., Black
children in an LEA, compared with non-
Black children in the State). Finally, with respect to the possibility
that, for any one LEA with high referral
rates across all groups, all racial and
ethnic groups could trigger a finding of
significant disproportionality if an
alternate risk ratio is required, we do
not believe that there is a high
likelihood of that scenario occurring.
The alternate risk ratio would only be
utilized in cases where, for a particular
racial or ethnic group, there is a small
comparison group at the LEA-level or
the comparison group’s risk is zero at
the LEA-level. Likewise, the flexibility
to set reasonable minimum cell sizes
and minimum n-sizes should allow
States to avoid identifying LEAs based
on a small number of children in a
particular group. In either case, it is
likely that the racial and ethnic groups
that comprise the comparison group
would not be reviewed for significant
disproportionality, as, per
§ 300.647(c)(1), States will have the
flexibility to exclude from their review
for significant disproportionality those
racial and ethnic groups they do not
meet both a minimum n-size and
minimum cell size.
Changes: None.
Comment: One commenter suggested
that the alternate risk ratio would be
appropriate in situations where an LEA
is home to highly specialized programs
for children with autism or hearing
impairments, or where the mobility rate
is significantly discrepant from the State
average.
Discussion: We disagree. As we stated
in the NPRM, it is the Department’s
position that, whenever possible,
analyses for significant
disproportionality under IDEA section
618(d) should compare identification,
placement, and discipline rates in an
LEA to those rates for other racial and
ethnic groups in the same LEA.
Generally, variations from statewide
trends is not an ideal indicator of
whether significant disproportionality
exists, which is why the Department
initially proposed to limit the use of the
alternate risk ratio to instances in which
the comparison group is particularly
small or the risk to that group is zero.
In instances where an intra-LEA
analysis either does not create
mathematical quandaries (i.e., dividing
by zero) or does not rely on particularly
small comparison groups, racial and
ethnic groups within an LEA should be
compared with other groups within the
LEA. Under § 300.647(b)(5), the
Department will limit the use of the risk
ratio to instances where the comparison
group does not meet either the State’s
reasonable minimum cell size or
minimum n-size. In instances where LEAs have highly
specialized programs, LEAs should
work to ensure that these programs are
equally accessible to all children
eligible for the program, regardless of
race or ethnicity. Similarly, LEAs
should ensure that decisions to place
particular children with disabilities in
segregated settings are based on the
individual needs of those children
consistent with civil rights laws.
Unnecessarily removing children with
disabilities from an integrated setting
and concentrating them in separate
schools runs contrary to the integration
goal that lies at the heart of the
Americans with Disabilities Act (ADA).
(See, e.g. 28 CFR 35.130(b)(1)(ii),
(b)(1)(iv), (b)(2); see also, Olmstead v.
L.C., 527 U.S. 581, 597 (1999)
(‘‘Unjustified isolation, we hold, is
properly regarded as discrimination
based on disability’’ under title II of the
ADA).) Further, as discussed earlier, the level
of student mobility in an LEA does not
obviate that LEA’s obligation under
IDEA to ensure that all children with
disabilities have access to a free
appropriate public education in the
least restrictive environment. LEAs
should ensure that they are meeting this
obligation for all children, and that they
are doing so without regard to a child’s
race or ethnicity. Finally, it is not clear to the
Department how a calculation of an
alternate risk ratio, rather than a risk
ratio, would result in a more accurate
assessment of significant
disproportionality for LEAs with
specialized programs or highly mobile
student populations. Changes: None.
Comments: One commenter suggested
that if an SEA uses multiple years of
data, and an LEA’s racial composition
requires the use of the alternate risk
ratio in one year, then the State should
have the flexibility to use the alternate
risk ratio in the other years to determine
significant disproportionality. The
commenter suggested, for example, that
an SEA using three years of data be
permitted to apply the alternate risk
ratio to years one and three of the data
even if the alternate risk ratio was only
triggered in year two of the data. Discussion: The Department does not
believe it appropriate to allow States to
use the alternate risk ratio for LEAs in
the years just prior to, or immediately
following, years when it is required to
do so because the comparison group
does not meet the State’s reasonable
minimum n-size or reasonable
minimum cell size. As we stated in the
NPRM, it is the Department’s position
that, whenever possible, LEA data is
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preferable to State-wide data for the
purpose of identifying significant
disproportionality as they best represent
the practices of the LEA and the
experiences of the children enrolled in
the LEA. 81 FR 10967. In years when an
LEA has a sufficiently large population
of children, or children with
disabilities, to meet the State’s
reasonable minimum cell size and
minimum n-size, it is the Department’s
preference that States use the LEA’s
information to identify if significant
disproportionality is taking place.
Changes: None.
Flexibilities—Three Consecutive Years
of Data, § 300.647(d)(1) Comment: One commenter expressed
concern that allowing States to identify
LEAs with significant disproportionality
by examining up to three prior
consecutive years in proposed
§ 300.647(c)(1) is ambiguous. Further,
the commenter stated that it is not clear
whether the regulation is written to
mean that an LEA could be identified in
the year in which their data exceeded
the State-defined threshold or if the LEA
could exceed the threshold for three
years and then be determined to have
significant disproportionality in the
fourth year. If the regulation is written
to mean the latter, the commenter
expressed that four years is an
unnecessarily long delay. Another
commenter stated that it is unclear
whether the State may begin
consideration of the three years of data
on the date the regulations go into
effect. Discussion: The Department
appreciates the opportunity to clarify
this flexibility. Under final
§ 300.647(d)(1), States may make a
determination that an LEA has
significant disproportionality after the
LEA has exceeded a risk ratio threshold
for a particular racial or ethnic group
and category of analysis for up to three
prior consecutive years preceding the
identification. Under this provision, a
State is prohibited from waiting four
years to identify an LEA with significant
disproportionality if it has exceeded the
State’s risk ratio threshold for up to
three prior consecutive years. The use of
the term ‘‘prior’’ is meant to clarify that
any determination of significant
disproportionality uses the most recent
year for which data are available and up
to two previous consecutive years of
data. For example, if a State is making a
determination in the 2018–2019 school
year, it can rely on up to three years of
data to make its determinations (e.g.,
2015–2016, 2016–2017, and 2017–
2018). If an LEA exceeds the risk ratio threshold for a particular racial or
ethnic group for a particular category of
analysis in each of those years, the State
must identify that LEA as having
significant disproportionality. The fact
that the determination made in 2018–
2019 is based, in part, on data from
2015–2016 does not constitute a delay
of four years to make a determination,
but is a result of data lags that occur
regardless of how many prior years of
data a State analyzes (e.g.,
2018–2019
child count, placement, and discipline
data are not typically available in time
for States’ determinations in the 2018–
2019 school year). The flexibility to determine
significant disproportionality after one,
two, or three consecutive years was
designed to account for volatility—small
changes in data from year to year that
may cause large changes in a risk ratio
and cause an LEA to be identified with
significant disproportionality. Allowing
States to take into consideration up to
three consecutive years of data provides
an opportunity for the States to
determine which LEAs have significant
disproportionality on the basis of
consistently elevated risk ratios, rather
than what may be a single year increase. Also, as we noted in the NPRM, using
three consecutive years of data was the
most common approach to identifying
significant disproportionality among the
States in 2012–2013. Of the 23 States
that reported using multiple years of
data in the SY 2012–2013 State
Supplement Survey (SSS), 13 States
required an LEA to exceed the threshold
for three consecutive years before
finding significant disproportionality,
while 9 States required 2 consecutive
years. Changes: None.
Comment: Regarding proposed
§ 300.647(c)(1), a large number of
commenters expressed support for
requiring, rather than allowing, States to
rely on three years of data before making
a determination of significant
disproportionality. Several other
commenters supported States choosing
to identify an LEA as having significant
disproportionality only after the LEA
exceeds a risk ratio threshold over a
period of time (such as three
consecutive years) as a matter of best
practice to avoid the identification of
significant disproportionality due to
data anomalies. Discussion: Final § 300.647(d)(1) will
permit, but not require, States to rely on
up to three years of data in order to
make a determination of significant
disproportionality. The Department
believes that States should have the
flexibility to make a determination of
significant disproportionality based on one, two, or three consecutive years of
data. The Department also believes that
this flexibility will help States both
account for year-to-year volatility in the
risk ratio and focus on LEAs with
consistently high risk ratios.
At the same time, we do not believe
it appropriate to require States to use
three consecutive years of data—rather
than two consecutive years, or only one
year—prior to identifying significant
disproportionality. Given the flexibility
States will have under § 300.647 to set
reasonable population requirements—
which will also reduce risk ratio
volatility—reasonable risk ratio
thresholds, and standards for reasonable
progress, States may determine that a
particular combination of these methods
appropriately identifies significant
disproportionality using one or two
years of data. In these cases, the
Department does not want to require
States to wait an additional year, or an
additional two years, to make an
identification of significant
disproportionality when they have
confidence that the racial and ethnic
disparities within an LEA require more
immediate intervention. Changes: None.
Comment: Many commenters
expressed general support for allowing
States to use up to three consecutive
years of data, under proposed
§ 300.647(c)(1), prior to making a
determination of significant
disproportionality. One commenter
expressed support for allowing up to
three consecutive years of data, so long
as States continue to be required to
annually calculate risk ratios to
determine significant
disproportionality. That same
commenter argued that analyzing three
consecutive years of data gives LEAs
more advanced notice, flexibility, and
support in which to implement systemic
changes before a finding of significant
disproportionality can occur. A few
commenters expressed that allowing
States to wait for more than three
consecutive years—that is, longer than
the period specified in the Department’s
proposal—before identifying significant
disproportionality would mean that
thousands of misidentified, misplaced,
and over-disciplined children would
continue to be denied the high quality
education they need. Discussion: The Department
appreciates the commenters’ support
and believes that this flexibility will
help States account for volatility in risk
ratios. Allowing States to take into
consideration the data of up to three
consecutive years provides an
opportunity for the States to focus their
efforts on LEAs with consistently high
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92439 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
risk ratios year over year, rather than
only those with a single year of a high
risk ratio. Further, we agree with the
commenter’s interpretation of proposed
§ 300.647(c)(1) (now § 300.647(d)(1))
that States must examine their LEAs for
significant disproportionality every
year. The flexibility in this section
allows the State to limit their findings
of significant disproportionality to LEAs
that exceed the State’s risk ratio
threshold for up to three prior
consecutive years, as is already the
common practice in a number of States.
As we noted in the NPRM (81 FR
10985), based on the SY 2013–14 State
Supplement Survey, 23 States require
that LEAs exceed a specified level of
disparity for multiple years for at least
one category of analysis for at least one
racial or ethnic group before the LEA is
identified as having significant
disproportionality. Of these 23 States,
13 require 3 consecutive years of risk
ratios exceeding an established
threshold. We therefore agree with the
comment that a longer period of
analysis would not be appropriate.
Changes: None.
Flexibilities—Reasonable Progress,
§ 300.647(d)(2) Comment: Many commenters
expressed support for proposed
§ 300.647(c)(2) allowing States to
exempt LEAs from a determination of
significant disproportionality if they
show reasonable progress. Discussion: The Department
appreciates commenters’ support for
this flexibility. We believe it is
important to allow States the flexibility
to not identify LEAs with significant
disproportionality if, for example, a
prior review and revision of policies,
practices, and procedures and effective
use of funds for comprehensive CEIS
has resulted in a reasonable reduction in
risk ratios in each of the two prior
consecutive years. In such an LEA, a
continued finding of significant
disproportionality, including an
ongoing annual review of policies,
practices, and procedures, may actually
divert State attention from LEAs in
which substantial problems continue to
occur and are not improving. Changes: None.
Comments: Two commenters asked
for additional Federal guidance
regarding what constitutes reasonable
progress because allowing States to
interpret ‘‘reasonable progress’’ may
allow LEAs to ‘‘backslide.’’ One
commenter stated that the Department
should place restrictions on the
definition of ‘‘reasonable progress’’ if
trend data indicates that different rates
of progress are appropriate for different demographic groups across
identification, placement, and
discipline. Other commenters
recommended clearly defining
‘‘reasonable progress’’ and including a
rubric for determining whether the State
is correctly applying ‘‘reasonable
progress’’ and monitoring trends across
States for appropriate definitions of
reasonable progress. Finally, one
commenter posited that, without a
clearer definition of reasonable progress,
the flexibility may become a loophole
allowing States to avoid identifying
LEAs.
Discussion: We appreciate
commenters’ concerns regarding the
reasonable progress flexibility. While
the Department believes that States
should retain broad flexibility to set a
standard for ‘‘reasonable progress,’’ it
was not our intent to allow States
unfettered flexibility in this area. We
have revised the regulations to ensure
that a State’s standard for reasonable
progress is meaningful, and to reduce
the likelihood that an LEA might meet
the standard due to reductions in risk
ratios resulting from a data anomaly.
Under final § 300.647(d)(2), LEAs must
be making reasonable progress in
lowering the risk ratio or alternate risk
ratio for the group and category for each
of the two prior consecutive years,
rather than the immediate preceding
year. As such, if an LEA is not reducing
risk ratios over each of the two prior
consecutive years, a State cannot
exercise this flexibility. Further, we
have revised § 300.647(b)(1), to require
each State to consult with its
stakeholders, including State Advisory
Panels, before setting a standard for
reasonable progress. This revision also
clarifies that the State’s standard for
reasonable progress, under
§ 300.647(d)(2), is subject to the
Department’s monitoring and
enforcement for reasonableness.
While, in the NPRM, the Department
suggested that States might make a
determination of ‘‘reasonable progress’’
on a case-by-case basis, we no longer
find this degree of flexibility to be
appropriate. While States would retain
the flexibility to set a standard for
reasonable progress—including the
flexibility to set a standard that requires
different risk ratio reductions for each of
the categories in paragraphs (b)(3) and
(4)—this standard must be developed
with the advice of stakeholders,
including the State Advisory Panel, and
implemented uniformly across the State.
We do not, however, believe that a
standard that requires different risk ratio
reductions for LEAs that exceed the
State’s risk ratio threshold for different racial or ethnic groups would meet
constitutional scrutiny.
The proposed regulations also
included additional restrictions to how
a State may implement § 300.647(d)(2),
which we retain in these final
regulations. If an LEA is reducing risk
ratios generally, but not for the specific
group and category for which its risk
ratio exceeded the State’s risk ratio
threshold, a State cannot exercise this
flexibility. Similarly, if an LEA exceeds
the risk ratio threshold in four areas and
is making reasonable progress in only
three of them, a State could not use this
flexibility to not identify the LEA with
significant disproportionality in the area
in which the LEA is not making
reasonable progress. Therefore, while
States can determine specific standards
for what constitutes reasonable progress
(e.g., a reduction of the risk ratio by 0.5
in each of the two prior consecutive
years), they can do so only within a
specified set of circumstances.
In sum, the Department does not
believe that this flexibility represents an
unchecked loophole for States. The
Department plans to monitor States’
implementation of this flexibility and,
as appropriate, will provide technical
assistance on best practices as they
become evident. The Department may
also take appropriate enforcement
action, ranging from requiring a
corrective action plan, to imposing
special conditions, to designating the
State as high-risk status, to withholding
a portion of the State’s IDEA Part B
funds.
Changes: We have revised
§ 300.647(b)(1) to clarify that the State’s
standard of ‘‘reasonable progress’’ must
be developed with the advice of
stakeholders, including State Advisory
Panels, and is subject to the
Department’s monitoring and
enforcement for reasonableness. We
have also revised § 300.647(b)(1) to
clarify that a State may, but is not
required to, set the standards for
measuring reasonable progress at
different levels for each of the categories
described in paragraphs (b)(3) and (4).
In addition, we have revised
§ 300.647(d)(2) to require that an LEA
make reasonable progress in reducing
the appropriate risk ratio (or alternate
risk ratio) in each of two prior
consecutive years, rather than the
immediate preceding year.
Comments: Several commenters
supported giving States significant
flexibility in defining ‘‘reasonable
progress,’’ and emphasized that there
should be no additional restrictions on
State flexibility to define ‘‘reasonable
progress.’’
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92440 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Discussion: We appreciate the
commenters’ perspective. While we
believe that States should have broad
flexibility to set a standard for
‘‘reasonable progress,’’ it was the
Department’s intent to restrict States to
only those standards that are reasonable
and are indicative of meaningful
progress. As we note earlier in this
section, we believe that two changes to
regulation are necessary to help States
to select a standard that is reasonable
and to reduce the likelihood that data
anomalies will prevent the appropriate
identification of LEAs with significant
disproportionality. Changes: We have revised
§ 300.647(b)(1) to clarify that the State’s
standard of ‘‘reasonable progress’’ must
be developed with the advice of
stakeholders, including State Advisory
Panels, and is subject to the
Department’s monitoring and
enforcement for reasonableness. We
have revised § 300.647(d)(2) to require
that an LEA make reasonable progress in
reducing the appropriate risk ratio (or
alternate risk ratio) in each of the two
prior consecutive years, rather than the
immediate preceding year. Comment: A commenter requested
clarity regarding the best way to
determine whether an LEA has achieved
reasonable progress such that a
determination of significant
disproportionality is no longer required. Discussion: In general, the
Department expects that States
implementing the revised final
§ 300.647(d)(2) will examine LEAs for
reasonable progress in reducing their
risk ratios in each of the two prior
consecutive years. For example, a State
may choose to review LEAs for
significant disproportionality in SY
2018–2019 based on data from SYs
2017–18, 2016–17, and 2015–16. Should
the State identify an LEA that exceeds
a particular risk ratio threshold for all
three years, the State has the option,
under final § 300.647(d)(2), not to make
a finding of significant
disproportionality if the LEA has
achieved at least a reasonable decrease
in their risk ratios between SYs 2015–
2016 and 2016–17, and between SYs
2016–2017 and 2017–2018. The State
does not have the option to postpone a
finding of significant disproportionality
if the LEA has only achieved a decrease
in their risk ratios over a multiple year
period; that is, if an LEA reduced its risk
ratio from 2015–2016 to 2017–2018, but
not from 2015–2016 to 2016–2017, the
State does not have the flexibility to not
identify the LEA as having significant
disproportionality if it otherwise
exceeds the State’s risk ratio threshold.
So long as an LEA exceeds a risk ratio threshold, the LEA must make
continuous progress, in each of the two
prior consecutive years, in reducing its
risk ratio to avoid a finding of
significant disproportionality.
Changes: None.
Comment: One commenter stated that,
in a State that uses three years of data,
the data used to consider a
determination of significant
disproportionality is old and likely
includes a substantial number of
children who no longer attend the LEA.
The commenter also stated that, because
of the time it will take for the LEA to
develop a plan, and report to the
Department any improvement, years
will have passed between the original
identification of significant
disproportionality and data showing the
results of LEA-level changes. Discussion: We recognize that, given
the time necessary to collect, prepare,
and analyze data, the information States
will use to identify significant
disproportionality may be delayed a
number of years, particularly when
States are also exercising the flexibility
under § 300.647(d)(1) to consider up to
three prior consecutive years of data.
The data analyzed may indeed include
children no longer enrolled within the
LEA. However, the data lag is, in part,
necessary to ensure accuracy of the
information on which findings are
based. It would be impossible for a State
to make a determination of significant
disproportionality regarding discipline
for the current year based on the current
year’s data, as the school year is
currently ongoing and the State would
therefore be basing determinations on
incomplete data. These limitations do
not reduce the value of these analyses,
particularly as IDEA section 618(d) was
intended to address those LEAs with
systemic racial and ethnic disparities in
special education, rather than providing
specific relief to specific children with
disabilities. Other provisions of IDEA
are meant to address the individual
rights of children with disabilities to a
free appropriate public education in the
least restrictive environment. Changes: None.
Comments: Two commenters
suggested that reasonable progress
should be defined so that it is
meaningful. Discussion: We agree with the
commenters that the standard for
reasonable progress should represent a
meaningful degree of improvement in
the performance of the LEA. To ensure
this, the Department will now require
States to consult with stakeholders,
including State Advisory Panels, prior
to setting a standard for reasonable
progress under § 300.647(d)(2). Further, each State’s standard for reasonable
progress will be subject to the
Department’s monitoring and
enforcement for reasonableness.
In addition, States should set their
reasonable progress standards based on
whether the progress realized by LEAs
in lowering risk ratios represents a
meaningful benefit to children in the
LEA, rather than statistical noise or
chance. To increase the likelihood that
States’ standards will accomplish this
goal, the Department will now allow
States to make a determination of
reasonable progress only after an LEA
has made reasonable progress in
reducing its risk ratio in each of the two
prior consecutive years. Changes: We have revised
§ 300.647(b)(1) to clarify that the State’s
standard for ‘‘reasonable progress’’ must
be developed with the advice of
stakeholders, including State Advisory
Panels, and is subject to the
Department’s monitoring and
enforcement for reasonableness. We
have revised § 300.647(d)(2) to require
that an LEA make reasonable progress in
reducing the risk ratio (or alternate risk
ratio) in each of the two prior
consecutive years, rather than only from
the immediate preceding year. Comments: One commenter suggested
that, to show reasonable progress, an
LEA must consistently reduce risk ratios
across a three year period and requested
clarification as to how consistent
progress must be for a State using three
years of data. Discussion: The Department
appreciates the recommendation. We
understood the commenter to be
recommending that, when looking
across a three year period (e.g., 2015–16,
2016–17, and 2017–18), an LEA should
both show a year to year decrease in
their risk ratio and an overall downward
trend across the period, regardless of
whether the first year of the period (e.g.,
2015–16) was a decrease from the
preceding year (e.g., 2014–15). We agree
with the commenter that the LEA
should make progress each year in
reducing its risk ratio, and have revised
the regulations to allow States to not
identify an LEA with significant
disproportionality if the LEA achieves
reasonable progress, under
§ 300.647(d)(2), in reducing its risk ratio
(or alternate risk ratio) from the
preceding year in each of the two prior
consecutive years. We believe this
mirrors the recommendation of the
commenter. We decline to require that
LEAs reduce their risk ratio over a
longer period of time, as it would
require States to examine four or more
years of data to determine whether the
LEA had achieved reasonable progress.
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92441 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Under the revised regulation, the
Department will allow States to
implement both § 300.647(d)(1) and (2)
using only three prior consecutive years
of data.
For example, State A has a risk ratio
threshold of 3.0 and two LEAs in the
State have risk ratios 3.6 (LEA 1) and 4.3
(LEA 2) in SY 2020–2021. If the State
opts to use the reasonable progress
flexibility, the State would have to
examine the risk ratios for those LEAs, for the particular group and category, for
the two preceding years. If LEA 1 had
a risk ratio of 4.9 in 2018–2019 and a
risk ratio of 4.3 in 2019–2020, the State
could determine that this LEA had
demonstrated reasonable progress in
reducing its risk ratios and not make a
determination of significant
disproportionality (assuming a
reduction from 4.9 to 4.3 to 3.6 met the
State’s identified standard).
However, if LEA 2 had a risk ratio in
2018–2019 of 4.9 and a risk ratio of 3.6
in 2019–2020, the State must identify
that LEA as having significant
disproportionality because it did not
reduce its risk ratio in each year for two
consecutive years. Even though the risk
ratio of 4.3 in 2020–2021 is less than the
risk ratio in 2018–2019, the increase
from 2019–2020 to 2020–2021 means
the LEA has not made reasonable
progress in reducing its risk ratio.
TABLE 1—E XAMPLE RISK RATIOS BY YEAR IN DEMONSTRATING REASONABLE PROGRESS
2019 2020 2021 Notes
LEA 1 ......... 4.9 4.3 3.6 State can determine LEA made reasonable progress because of decrease in
risk ratio from prior
year for two consecutive years.
LEA 2 ......... 4.9 3.6 4.3 State may not determine LEA made reasonable progress because risk ratio
increased from 2020 to 2021.
Changes: None.
Comment: A commenter suggested
that the Department allow States to
determine that an LEA has made
reasonable progress if the LEA provides
evidence that it is actively addressing
the significant disproportionality,
regardless of whether the LEA’s data
reflects that progress has been achieved. Discussion: As noted above,
§ 300.647(d)(2) allows a State not to
identify an LEA with significant
disproportionality if it is making
reasonable progress in lowering the risk
ratios for the group or category in each
of the two prior consecutive years.
Further, IDEA section 618(d) (20 U.S.C.
1418(d)) requires States to base their
determination of significant
disproportionality on a collection and
examination of data. For these reasons,
States are not permitted to use
information other than data on racial
and ethnic disparities to distinguish
whether significant disproportionality is
occurring within an LEA or to
determine whether that LEA is making
reasonable progress under
§ 300.647(d)(2). Changes: None.
Comments: One commenter stated
that providing States with the flexibility
not to identify LEAs demonstrating
reasonable progress in lowering the risk
ratio will not remedy matters of
identification due solely to small cell
size. The Department interpreted this
comment to suggest that proposed
§ 300.647(c)(2) will not prevent the
inappropriate identification of LEAs due
to small populations of children. Discussion: The Department agrees
with the commenter and did not intend
for proposed § 300.647(c)(2) (now
§ 300.647(d)(2)) to prevent the
identification of LEAs with significant disproportionality due to the volatility
in risk ratios that can result from small
numbers of children. Two other
provisions are intended to address that
issue. Under § 300.647(b)(1)(i)(B) and
(C), States must set minimum n-sizes
and minimum cell sizes. If a particular
racial or ethnic group being analyzed in
an LEA does not meet the minimum
n-size and minimum cell size
established by the State, the State is not
required to use the standard
methodology. We believe that this
flexibility is sufficient to address
concerns about identification of an LEA
as having significant disproportionality
on the basis of small numbers of
children.
Changes: None.
Comment: Multiple commenters
expressed concerns with the use of risk
ratio as a measurement of reasonable
progress under proposed § 300.647(c)(2).
These commenters argued that absolute
reductions in risk, and not risk ratios,
should be used to measure progress,
especially for restrictive placements and
discipline.
Discussion: The Department
appreciates the concerns raised by
commenters. However, as noted above,
IDEA section 618(d) (20 U.S.C. 1418(d))
is primarily concerned with significant
disproportionality across racial and
ethnic groups, rather than the specific
rates of identification, placement in
particular settings, or discipline for
children with disabilities. As such, we
believe it would be inappropriate to
provide States the flexibility not to
identify an LEA with significant
disproportionality on the basis of a
criterion that is not related to the
relative numbers of children (or
children with disabilities) experiencing a particular outcome across racial or
ethnic groups.
Changes: None.
Comments: A number of commenters
stated that risk ratios are inappropriate
measures of progress when the
underlying risk of placement in
restrictive settings or of disciplinary
removal is unacceptably high. For
example, they argued that increasing the
risk level for the lower incidence group
in the risk ratio comparison would also
reduce the risk ratio but not the overall
exclusion of children from the
classroom; according to the
commenters, that scenario should never
be considered reasonable progress.
Commenters stated that a necessary
component of any State’s determination
of reasonable progress must be that the
racial or ethnic group with the highest
risk level sees a reduction in its risk
level.
Discussion: The Department
recognizes and appreciates the
commenters’ concerns. For several
years, the Department has worked to
assist States to strengthen behavioral
supports to children with the goal of
reducing schools’ reliance on
suspensions and expulsions. For this
reason, the Department appreciates that
commenters examined this component
of the regulation for potential
unintended incentives that could inhibit
the progress of States and LEAs in
reducing disciplinary removals.
However, in considering the issues that
the commenters have raised, the
Department disagrees that allowing
States to use the risk ratio to measure
reasonable progress with respect to
disciplinary removals would create an
incentive to raise rates of suspension or
expulsion.
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92442 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
We find it highly unlikely that LEAs
would respond to a finding of
significant disproportionality by
systematically seeking out children with
disabilities in other racial or ethnic
groups and suspending or expelling
them solely to meet the State’s
definition of reasonable progress.
Further, to the extent that an LEA was
engaging in those practices, we would
expect a State to take strong
administrative action to prevent them,
as they clearly represent a denial of a
free appropriate public education in the
least restrictive environment. The Department has worked to
provide educators and schools with easy
access to information regarding school
discipline reform. Tools, data, and
resources are available at www.ed.gov/
school-discipline. Changes: None.
Comment: One commenter noted that,
in general, reducing discipline
frequencies will tend to increase, not
reduce, relative difference in discipline
rates. Discussion: We recognize that, in an
LEA that is generally reducing rates of
discipline for all children with
disabilities, it may become markedly
more difficult to demonstrate reasonable
progress in lowering risk ratios. For
example, if an LEA suspended 15
percent of Hispanic children with
disabilities and 3 percent of all other
children with disabilities, it would have
a risk ratio of 5.0. In order to
demonstrate a reduction in the risk ratio
of 0.1, the LEA would have to reduce
the suspension rate for Hispanic
children with disabilities to 14.7
percent if the rate for all other children
remained the same. However, if the LEA
reduced the suspension rates for non-
Hispanic children with disabilities to 2
percent, an LEA would actually have to
reduce its suspension rate for Hispanic
children with disabilities to 9.8 percent
to achieve the same 0.1 reduction in
their risk ratio, a much larger reduction
for the same ‘‘effect size.’’ Nonetheless,
the difficulty of demonstrating
reasonable progress in lowering the risk
ratio does not invalidate the worthy goal
of reducing disparities on the basis of
race and ethnicity. Further, we note
that, to the extent that the number of
children with disabilities being
suspended or expelled in an LEA
decreases below the State’s minimum
cell size, a State is not required to use
the standard methodology for
determining whether there is significant
disproportionality in the LEA. Changes: None.
Comment: One commenter suggested
that proposed § 300.647 include a
flexibility to not identify LEAs with significant disproportionality if the
State can identify through a review of
data that the disproportionality is not
the result of the actions of the LEA.
Discussion: The Department
recognizes that States have a vested
interest in ensuring that their support of
LEAs identified with significant
disproportionality is appropriately
targeted and may wish to avoid the
statutory remedies in the event that an
LEA with apparently strong policies,
practices, and procedures nonetheless
has significantly disproportionate rates
of identification, placement and
discipline for particular racial or ethnic
groups. However, as noted above, IDEA
section 618(d) (20 U.S.C. 1418(d))
clearly establishes that the basis for a
finding of significant disproportionality
is a disparity in the identification,
placement and discipline of children on
the basis of race and ethnicity and the
review of policies, practices, and
procedures a consequence of, rather
than a part of, a determination of
significant disproportionality. As such,
the Department is precluded from
waiving, or allowing States to waive,
such a finding on the basis of criteria
unrelated to those disparities. Further,
regardless of whether any particular
disparity in the identification,
placement, and discipline of children
on the basis of race and ethnicity can be
linked to a specific LEA action, LEAs
may still benefit from the review and, if
necessary, revision of their policies,
practices, and procedures and the
reservation of funds for comprehensive
CEIS to address those disparities. Changes: None.
Comment: None.
Discussion: Upon further
consideration of the regulatory language
originally proposed under
§ 300.647(c)(2), we believe that
provision includes an inappropriate,
and potentially confusing, reference to
alternate risk ratio thresholds. Under
§ 300.647(b)(1), States are required to
establish one or more reasonable risk
ratio thresholds, and, under
§ 300.647(b)(6), identify an LEA with
significant disproportionality if any of
the LEA’s risk ratios or alternate risk
ratios exceed the reasonable risk ratio
threshold. The Department did not
include in § 300.647 any provision that
would allow States to establish an
alternate risk ratio threshold—both risk
ratios and alternate risk ratios are to be
compared to the State’s reasonable risk
ratio threshold. While it was the Department’s
intention, with proposed
§ 300.647(c)(2), to allow States the
flexibility to not identify an LEA that
exceeds a risk ratio threshold when the LEA makes reasonable progress in
reducing the risk ratio or alternate risk
ratio for the applicable racial and ethnic
group and category of analysis, the
proposed provision inappropriately
extended this flexibility to
circumstances where LEAs exceeded an
alternate risk ratio threshold. This gives
the mistaken impression that States
have the option to create separate
alternate risk ratio thresholds.
Changes: We have revised proposed
§ 300.647(c)(2), now § 300.647(d)(2), to
remove the reference to an alternate risk
ratio threshold.
III. Clarification that Statutory
Remedies Apply to Disciplinary
Actions (§ 300.646(a)(3) and (c))
Comments: A number of commenters
supported our clarification in proposed
§ 300.646(c) that States must address
significant disproportionality in the
incidence, duration, and type of
disciplinary actions for children with
disabilities, including suspensions and
expulsions, just as they address
significant disproportionality in the
identification and placement of children
with disabilities—by ensuring the
review of and, if necessary, the revision
of and reporting on LEAs’ policies,
practices, and procedures and by setting
aside 15 percent of Part B IDEA funds
to provide comprehensive CEIS. Discussion: We appreciate
commenters’ support for the proposed
regulation that would incorporate the
Department’s long-standing position on
this issue. Changes: None.
Comments: One commenter argued
that the clarification, even if it embodies
a long-standing position of the
Department, misreads the statute. The
plain language of IDEA section 618(d)(1)
(20 U.S.C. 1418(d)(1)) requires States to
determine whether in the State and its
LEAs there is significant
disproportionality with respect to race
and ethnicity in the identification,
placement, and discipline of children
with disabilities. Section 618(d)(2) (20
U.S.C. 1418(d)(2)), however, only
mentions identification and placement.
As such, the commenter argued that the
application of the statutory remedies
based on a finding related to discipline
was not supported by the statute, a
reading the commenter stated was
supported by a number of canons of
statutory construction. Discussion: As we stated in the
NPRM, when Congress added discipline
to IDEA section 618(d)(1) (20 U.S.C.
1418(d)(1)), it made no corresponding
change to IDEA section 618(d)(2) (20
U.S.C. 1418(d)(2)), which created an
ambiguity because IDEA section
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618(d)(2) does not explicitly state that
the remedies in IDEA section 618(d)(2)
apply to removals from placement that
are the result of disciplinary actions.
The Department reads the term
‘‘placement’’ in the introductory
paragraph of section 618(d)(2) to
include disciplinary actions that are
also removals of the child from his or
her current placement for varying
lengths of time, including removals that
may constitute a change in placement
under certain circumstances. IDEA
section 615(k)(1), 20 U.S.C. 1415(k)(1).
A disciplinary removal of up to 10
school days is considered a removal
from placement under section
615(k)(1)(B) (‘‘[s]chool personnel under
this subsection may remove a child with
a disability who violates a code of
student conduct from their current
placement to an appropriate interim
alternative educational setting, another
setting, or suspension, for not more than
10 school days (to the extent such
alternatives are applied to children
without disabilities)’’), while a
disciplinary removal from placement
that exceeds 10 school days is
considered a change in placement under
section 615(k)(1)(C).
The Department is the agency charged
with administering IDEA and has the
authority under IDEA section 607(a) (20
U.S.C. 1406(a)) to issue regulations to
ensure compliance with the specific
requirements of IDEA. Therefore, the
Department has the authority to resolve
the statutory ambiguity and incorporate
into the regulations its long-standing
interpretation, which is and has been
that the required remedies in IDEA
section 618(d)(2) apply when there is
significant disproportionality in
identification, placement, or any type of
disciplinary removal from placement.
(See, 71 FR 46540, 46738 (August 14,
2006); OSEP Memorandum 07–09, April
24, 2007; OSEP Memorandum 08–09,
July 28, 2008; June 3, 2008, letter to Ms.
Frances Loose, Supervisor, Michigan
Office of Special Education and Early
Intervention.) Changes: None.
Comments: Some commenters sought
stronger monitoring, technical
assistance, and guidance from the
Department on significant
disproportionality in discipline, others
wrote in favor of applying discipline
consistently, and one commenter asked
the Department to establish national
criteria for disciplining children and
consistent guidelines for documenting
and reporting disproportionate
disciplinary actions. Discussion: While these issues are
largely beyond the scope of these
regulations, we appreciate the opportunity to address them. We agree
with the commenters that discipline
should be applied consistently
regardless of race or ethnicity. The
Department has recently engaged in
extensive outreach, technical assistance,
and guidance activities related to
discipline, which can be found online at
www.ed.gov/rethinkdiscipline
.
However, many aspects of this issue,
including establishing national
standards for school discipline, are
beyond the Department’s statutory
authority in the context of these
regulations.
Changes: None.
Commenters: One commenter
recommended a minor wording change
in the regulation, to reduce confusion.
This commenter suggested that the
Department rewrite proposed
§ 300.647(b)(4) so that disciplinary
removals, or proposed
§ 300.647(b)(4)(iv) through (viii), are
separated from educational placements
in proposed § 300.647(b)(4)(i) through
(iii), and placed under a heading of
discipline. The commenter argued that
‘‘given that many students with
disabilities are removed from regular
class settings, it is important to make
clear that data must be collected on
exclusionary removals of all students
with disabilities regardless of the
restrictiveness of the setting in which
that are served.’’
Discussion: We do not think it
necessary, nor appropriate, to change
proposed § 300.647(b)(4) so that
disciplinary removals are separated and
placed under a heading of discipline. As
written, § 300.647(b)(4) is consistent
with the language of IDEA section
618(d) (20 U.S.C. 1418(d)), which
directs States to collect and examine
data to determine whether significant
disproportionality based on race and
ethnicity is occurring with respect to
‘‘the incidence, duration and type of
disciplinary actions, including
suspensions and expulsion’’. As we
explained in the NPRM, we interpret the
statute to require States to apply the
statutory remedies if an LEA is
identified with significant
disproportionality with respect to
disciplinary removals from placement.
Therefore, we decline to change
proposed § 300.647(b)(4) so that
disciplinary removals are separated and
placed under a heading of discipline.
Changes: None. IV. Clarification of the Review and
Revision of Policies, Practices, and
Procedures (§ 300.646(c))
Review of Policies, Practices, and
Procedures—Requirements
Comments: A number of commenters
supported proposed § 300.646(c) and
our clarifying the requirement for the
annual review of an LEA’s policies,
practices, and procedures in the case of
a determination of significant
disproportionality. One commenter
noted that this review can change the
behavior of LEAs that are improperly
identifying children for special
education and related services. Other
commenters, however, objected to
proposed § 300.646(c), stating that an
annual review was unnecessary and
burdensome. Another commenter objected and
suggested that most significant
disproportionality arises as a result of
poor practices, a problem not addressed
by a review of policies and procedures.
This commenter recommended that the
review of policies and procedures only
occur when an LEA amends its policies
or procedures. Another commenter
suggested that no review be required if
an LEA’s policies, procedures, and
practices are compliant with IDEA,
appropriate, and fair, and suggested that
a review occur only once every three
years or at the end of a CEIS ‘‘cycle.’’
Additional commenters argued that the
underlying issues affecting
disproportionality in an LEA do not
change as quickly as annually, and so
the annual review, which can be
expensive, does not make sense. Discussion: As we stated in the
NPRM, the requirement to review
policies, practices, and procedures
subsequent to a determination of
significant disproportionality would
impose no new obligations. Under IDEA
section 618(d) (20 U.S.C. 1418(d)), every
year a State is required to collect and
examine data to determine whether
significant disproportionality based on
race and ethnicity is occurring the State
and the LEAs of the State with respect
to the identification, placement, and
discipline of children with disabilities.
Under IDEA section 618(d)(2)(A) (20
U.S.C. 1418(d)(2)(A)) and final
§ 300.646(c)(1), the review of policies,
practices, and procedures must be
conducted in every year in which an
LEA is identified as having significant
disproportionality. As the review and
determinations occur annually, each
year an LEA is identified as having
significant disproportionality represents
a separate determination and therefore
triggers the requirements of IDEA
section 618(d)(2). As such, the
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requirements of final § 300.646(c)(1) are
consistent with the statute and the
Department does not have the authority
to reduce the frequency of the review or
change the conditions under which it is
required by statute.
We understand and appreciate the
complexity of the many social and
societal factors that contribute to
disproportionality. Nonetheless, under
IDEA section 618(d)(2) (20 U.S.C.
1418(d)(2)), the review of policies,
procedures, and practices must occur in
every year in which an LEA is identified
with significant disproportionality. Changes: None.
Comments: A number of commenters
suggested that the Department
emphasize that, under proposed
§ 300.646(c)(1), an annual review of an
LEA’s policies, practices, and
procedures in the case of a
determination of significant
disproportionality should include
making certain that the LEA adheres to
child find procedures; conducting
robust and timely screenings and
assessments, manifestation
determinations, and functional
behavioral assessments; and developing
appropriate IEPs and behavioral
intervention Plans. Another commenter suggested that
the review should include a review of
any disciplinary practices that disrupt a
child’s placement, even if the disruption
does not amount to a change in
placement, such as a suspension for
fewer than 10 days. Discussion: We appreciate the
commenters’ suggestions regarding the
scope of review required whenever a
LEA reviews its policies, practices, and
procedures subsequent to a
determination of significant
disproportionality. Under IDEA section
618(d)(2)(A) (20 U.S.C. 1418(d)(2)(A))
the State must provide for the review,
and if appropriate, revision of policies,
procedures, and practices used in the
area in which an LEA is identified with
significant disproportionality
(identification, placement or
disciplinary removals) to ensure they
comply with the requirements of IDEA. For example, in an LEA identified
with significant disproportionality with
respect to identification, the State must
provide for the review of policies,
practices, and procedures used in
identification. This should include a
review of child find and evaluation
policies, practices, and procedures to
ensure they comply with IDEA.
Consider that LEA Y has a risk ratio for
identification of white students as
students with autism that exceeds the
State-defined risk ratio threshold. As a
result, the State identifies LEA Y as having significant disproportionality
and provides for a review of the LEA’s
policies, procedures, and practices as
required by IDEA section 618(d)(2)(A).
This review results in the LEA
identifying that it has a long-standing
practice of requiring students to have a
medical diagnosis of autism in order to
receive special education services as a
child with autism. However, minority
students in LEA Y were much less likely
to be able to obtain such a diagnosis for
a number of reasons, including a lack of
consistent care and early screening and
referral conducted by health
professionals. Given that LEAs are not
allowed, under the IDEA, to set
eligibility criteria for special education
and related services absent a State-wide
requirement or criteria that is consistent
with the IDEA (i.e.,
the child’s parent
does not incur a cost for the medical
diagnosis and the requirement does not
result in a delay in the special education
and related services that are required for
a child to receive a free appropriate
public education) and the fact that the
State where LEA Y is located does not
require a medical diagnosis for autism,
the LEA’s practice is inconsistent with
IDEA.
In this instance, the
overrepresentation that resulted in the
LEA being identified with significant
disproportionality in the identification
of white children as children with
autism is due to under-identification of
minority children, as a result of a
district practice that does not comply
with the requirements of the IDEA and
a failure of the LEA to appropriately
screen children and help them secure
diagnostic testing. To address the
significant disproportionality, the LEA
must eliminate or revise its practice of
requiring students to have a medical
diagnosis of autism in order to receive
special education services. In addition,
the LEA could address the impact of
that criteria by using funds reserved for
comprehensive CEIS to increase
developmental screenings.
Similarly, for an LEA identified with
significant disproportionality with
respect to discipline, the State must
provide for the review of policies,
practices, and procedures used in the
discipline of children with disabilities.
This should include a review of the
LEA’s polices, practices, and procedures
related to manifestation determinations,
functional behavioral assessments, or
behavioral intervention plans or school-
wide discipline rules to ensure they
comply with IDEA.
Changes: None. Guidance
Comments: A number of commenters,
remarking upon the complexity of the
various underlying social and societal
causes that may contribute to significant
disproportionality and the limited
ability of schools to provide a remedy
through a review of its policies,
practices and procedures, asked for
additional oversight and guidance from
the Department. Some sought evidence-
based practices that address economic,
cultural, and linguistic barriers to
instruction. Others invited the
Department to consult with the States to
find alternative means of addressing the
causes of significant disproportionality. Discussion: Under IDEA section
618(d)(2)(A) (20 U.S.C. 1418(d)(2)(A),
when States make a determination of
significant disproportionality, they must
provide for the review and, if
appropriate, revision of the policies,
procedures, and practices used in the
identification, placement or discipline
of children with disabilities. The
purpose of the review is to determine if
the policies, practices, and procedures
comply with the requirements of IDEA.
The review is statutorily required by
IDEA section 618(d)(2) as a consequence
of a determination of significant
disproportionality in an LEA. The Department understands that not
all factors contributing to a
determination of significant
disproportionality can be remedied
through a review of policies, practices,
and procedures. However, when aligned
with the other remedies required in
final § 300.646(c) and (d), we believe
that the review of policies, practices and
procedures can be a valuable tool to
LEAs when addressing significant
disproportionality. IDEA does not
prohibit States from using remedies,
other than those required in § 300.646(c)
and (d), to address significant
disproportionality in conjunction with
those required in § 300.646. That said, as we evaluate additional
information and research in the future,
we will consider whether there is
further guidance or technical assistance
we can provide that will make evidence-
based practices available. Changes: None.
Clarifications Comment: One commenter asked
whether, under proposed
§ 300.646(c)(2), an LEA must publicly
report on the revision of policies,
practices, and procedures if it concludes
after review of its policies, practices,
and procedures that no change is
necessary. Discussion: No, an LEA is not
required to publicly report if no
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revisions to its policies, practices, or
procedures are necessary.
Changes: None.
Comments: One commenter
supported the Department’s
clarification, in proposed
§ 300.646(c)(2), that LEAs must
safeguard children’s individual
confidential information when publicly
posting any revisions to policies,
practices, and procedures. Discussion: We appreciate the
commenter’s support for incorporating
into the regulation that LEAs must
safeguard children’s individual
confidential information when publicly
posting any revisions to their policies,
practices, or procedures. Changes: None.
Comment: Another commenter
requested that the Department clarify
whether and how the annual review of
policies, practices, and procedures are
not duplicative of a one-year
verification process for correcting
noncompliance as required by
§ 300.600(e) and explained in OSEP
Memorandum 09–02. The commenter
stated that, as correction of
noncompliance in larger LEAs generally
takes up to one year, a requirement that
LEAs repeat review of policies practices,
and procedures the following year is
duplicative. Discussion: A State’s identification of
significant disproportionality within an
LEA is not the same as a finding of
noncompliance. An LEA identified with
significant disproportionality is not
necessarily out of compliance with
IDEA; rather, the significant
disproportionality is an indication that
the policies, practices, and procedures
in the LEA warrant further attention. If
an LEA is identified with significant
disproportionality, the State must
provide for review and, if appropriate,
revision of policies, practices, and
procedures used in identification or
placement in particular education
settings, including disciplinary
removals, to ensure they comply with
the requirements of IDEA. If the State
identifies noncompliance with a
requirement of IDEA through this
review, the State must ensure, in
accordance with § 300.600(e), that the
noncompliance is corrected as soon as
possible, and in no case later than one
year after the State’s identification of the
noncompliance. As explained in OSEP
Memorandum 09–02 when verifying the
correction of identified noncompliance,
the State must ensure that the LEA has
corrected each individual case of
noncompliance, unless the child is no
longer within the jurisdiction of the
LEA and the State determines that the
LEA is correctly implementing the specific regulatory requirement(s) based
on a review of updated data such as data
subsequently collected through on-site
monitoring or a State data system. If in
a subsequent year, the LEA continues to
be identified with significant
disproportionality, the State must
continue to provide for a review of
policies, practices, and procedures to
determine if there is any new or
continuing non-compliance with IDEA.
The fact that an LEA was previously
identified with noncompliance through
the review process does not relieve the
State of its responsibility to conduct an
annual review of the LEA’s policies,
practices, and procedures. We note that
while IDEA section 618(d)(2)(A)
requires that States provide for the
review of policies, practices, and
procedures, the State may select another
entity, such as the LEA, to actually
conduct the review.
Changes: None.
V. Expanding the Scope of
Comprehensive Coordinated Early
Intervening Services (§ 300.646(d))
Use of Comprehensive CEIS for Specific
Populations Comments: Most commenters
supported proposed § 300.646(d)(2),
which would expand the population of
children who can be served with IDEA
Part B funds reserved for comprehensive
CEIS to include children with
disabilities and children ages three
through five, with and without
disabilities. One commenter provided a
legal argument supporting the
Department’s interpretation of IDEA to
allow the use of comprehensive CEIS to
serve children with disabilities and
children ages three through five. The
commenter argued that canons of
statutory construction support the
Department’s position. Further, the
commenter added that the proposed
flexibility ensures that an LEA can
address the significant
disproportionality in ways appropriate
to the context. The commenter also
stated that the flexibility to serve
children with disabilities recognizes
that these children have the potential to
develop behavioral needs if their
disability is misidentified, if their
placement is inappropriate, or if they
receive inappropriate behavioral
assessments and plans. Another
commenter noted that the expansion of
comprehensive CEIS removes a source
of inequity in previous interpretations,
in which the very children treated
disproportionately could not be the
beneficiaries of comprehensive CEIS.
One commenter argued that providing
comprehensive CEIS only to non- disabled children is unlikely to address
significant disproportionality in the
discipline of children with disabilities.
Most commenters supported the use
of funds reserved for comprehensive
CEIS for children with disabilities and
preschool children ages three through
five, with and without disabilities.
Some of these commenters elaborated
on their reasons for supporting
§ 300.646(d)(2), noting that research on
early intervention shows that it
improves outcomes and reduces
disproportionality. One noted that the
existing requirement that
comprehensive CEIS funds be used only
for non-disabled children was a
disincentive to change inappropriate
practices in special education. Another
commenter noted that the change would
make clear that children with
disabilities can participate in whole-
school programs meant to address
disproportionality, and a few stated that
the change would be consistent with the
September 14, 2015, statement by
Federal agencies on including children
with disabilities in early childhood
programs. U.S. Department of Education
& U.S. Department of Health and
Human Services, 2015. Discussion: We appreciate the
commenters’ support for the proposal,
and agree that the expansion of
comprehensive CEIS to include children
with disabilities and children ages three
through five, with and without
disabilities, is consistent with IDEA
section 618(d) (20 U.S.C. 1418(d)) and
will help LEAs to better address
significant disproportionality. Changes: None.
Comments: Several commenters
argued that the Department lacks the
authority to expand the population that
can be served with IDEA Part B funds
reserved for comprehensive CEIS under
IDEA. In particular, they argued that
proposed § 300.646(d)(2) is inconsistent
with IDEA because IDEA section 613(f)
(20 U.S.C. 1413(f)) allows LEAs to
voluntarily reserve IDEA Part B funds to
provide coordinated early intervening
services only to children in kindergarten
through grade 12 who have not been
identified as needing special education
and related services. These commenters also noted that
proposed § 300.646(d)(2) represents a
change in the Department’s position.
The commenters pointed out that OSEP
Memorandum 08–09, dated July 28,
2008, stated that IDEA section 613(f)
permits ‘‘IDEA funds for CEIS for
children in kindergarten through grade
12 . . . who are not currently identified
as needing special education or related
services . . . .’’ The commenters also
pointed out that the Department’s
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preamble to the 2006 IDEA Part B
regulations, in discussing current
§ 300.226, stated that early intervening
services ‘‘are for children who are not
currently identified as needing special
education or related services.’’ 71 FR
46626 (August 14, 2006).
Discussion: We disagree that the
Department lacks the authority to
permit LEAs identified with significant
disproportionality to use IDEA Part B
funds reserved for comprehensive CEIS
to serve children with disabilities and
preschool children ages three through
five, with and without disabilities. We
acknowledged in the NPRM that the
Department has previously interpreted
the terms ‘‘CEIS’’ and ‘‘comprehensive
CEIS’’ to apply to children in
kindergarten through grade 12 who are
not currently identified as needing
special education and related services
but who need additional academic and
behavioral support to succeed in a
general education environment. (81 FR
10979) The Department proposed to change
its interpretation in a proper and legally
permissible manner. Under IDEA
section 607(a) (20 U.S.C. 1406(a)), the
Secretary has the authority to issue
regulations to the extent regulations are
necessary to ensure compliance with the
requirements of Part B of IDEA. Based
on information in the 2013 GAO report,
comments received in response to the
June 2014 request for information
expressing concern about the
effectiveness of comprehensive CEIS,
and the Department’s experience over
the last twelve years in implementing
IDEA section 618(d) (20 U.S.C. 1418(d)),
the Department believes that these
changes are necessary to ensure that the
statutory remedies are implemented in a
manner that meaningfully addresses any
significant disproportionality identified. Our proposal to change our
interpretation was based on careful
review of the statutory language and
legislative history of the significant
disproportionality provision in IDEA
section 618(d) (20 U.S.C. 1418(d)). Under IDEA section 613(f) (20 U.S.C.
1413(f)), an LEA may voluntarily reserve
up to 15 percent of its IDEA Part B
funds to provide coordinated early
intervening services to students in
kindergarten through grade 12 who have
not been identified as needing special
education or related services, but who
need additional academic and
behavioral support to succeed in a
general education environment (K–12
children). IDEA section 618(d)(2)(B) (20
U.S.C. 1418(d)(2)(B)) provides that in a
case of a determination of significant
disproportionality, an LEA must reserve
the maximum amount of funds under section 613(f) (15 percent of its IDEA
Part B funds) to provide
‘‘comprehensive’’ CEIS to serve children
in the LEA, particularly children in
those groups that were significantly
overidentified. Congress did not define
‘‘comprehensive,’’ nor did it explain
how ‘‘comprehensive CEIS’’ in IDEA
section 618(d) differs from the ‘‘CEIS’’
in IDEA section 613(f). Congress’
inclusion of the term ‘‘comprehensive’’
in one provision and not the other
creates an ambiguity. Therefore, the
Department has the authority to
interpret the term ‘‘comprehensive
CEIS.’’
We believe that this interpretation is
consistent with the legislative history of
this provision, which indicates that in
prior versions of the bills, the House
used the phrase ‘‘comprehensive
coordinated prereferral support
services’’ in section 618(d) and section
613(f) and that the Senate version did
not include any provision for using
section 613(f) funds for CEIS in section
618(d)(2)(B) but did use the phrase
‘‘coordinated, early intervening
educational services’’ in section 613(f).
In the final conference bill and enacted
statute, however, without a clear
explanation, Congress used
‘‘comprehensive’’ to describe CEIS only
in section 618(d)(2)(B)—omitting the
term from section 613(f). We also believe that our
interpretation, under final § 300.646(d),
is reasonable given the purpose of the
statutory remedies in IDEA section
618(d)(2) (20 U.S.C. 1418(d)(2)). Other
commenters, both to the NPRM and to
the June 2014 request for information,
agreed and noted that States currently
cannot use IDEA Part B funds reserved
for comprehensive CEIS to provide
services to children with disabilities,
even if they were in the groups with
significant disproportionality in
identification, placement, and
disciplinary removal. In other words, it
is difficult for the very children whose
significant disproportionality gives rise
to the requirement to provide
comprehensive CEIS to directly benefit
from comprehensive CEIS. It is our intent that § 300.646(d)
improve comprehensive CEIS as a
remedy for significant
disproportionality. For example, as we
noted in the NPRM, providing
comprehensive CEIS to preschool
children may help LEAs to address
significant disproportionality in
identification by allowing funds
reserved for comprehensive CEIS to be
used to provide more timely supports
and services to younger children. For
example, an LEA identified with
significant disproportionality might use IDEA Part B funds reserved for
comprehensive CEIS to implement
universal screening to better identify
and support children with
developmental delays before they enter
kindergarten. These activities will also
assist in ensuring that children with
disabilities in the LEA are appropriately
identified.
Further, as we noted in the NPRM,
providing comprehensive CEIS to
children with disabilities is more likely
to address significant disproportionality
in placement and discipline by allowing
LEAs to directly improve the
supplementary aids and services and
positive behavioral interventions and
supports provided to children with
disabilities. We believe that final
§ 300.646(d)(2) is, therefore, consistent
with the purpose of the statutory
remedies, which is to reduce significant
disproportionality. Section 300.646(d)(2) does not
address voluntary CEIS, implemented
under IDEA section 613(f) (20 U.S.C.
1413(f)) and IDEA Part B funds an LEA
voluntarily reserves for CEIS must be
used to serve students in kindergarten
through grade 12 who have not been
identified as needing special education
or related services, but who need
additional academic and behavioral
support to succeed in a general
education environment. Changes: None.
Comments: Some commenters did not
support the expansion of
comprehensive CEIS to preschool
children with or without disabilities.
Some of these commenters stated that
comprehensive CEIS was unproven and
ineffective and that ‘‘more of the same’’
does not make for good public policy.
Others took a broader view, stating that
disproportionality in race and ethnicity
has many causes beyond the ability of
schools and LEAs to solve, such as
poverty, drug abuse, incarceration, and
the disproportionality of adverse
childhood experiences among children
of color. Expanding the use of
comprehensive CEIS funds, some of
these commenters stated, cannot
address these causes, and, therefore,
redirecting IDEA funds to
comprehensive CEIS is unfair to the
LEAs and the children who stand to lose
the use of, and services funded by, the
money diverted. Some commenters
noted that, generally, comprehensive
CEIS would negatively impact LEAs,
especially small LEAs, by adversely
impacting their ability to provide for the
needs of children with disabilities. Discussion: We understand that
disproportionality is deeply
complicated and that many social and
societal causes may contribute to racial
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disparities in special education.
Nonetheless, the Department has an
obligation to work within the statutory
framework in IDEA and with the tools
it provides.
The Department recognizes that
providing comprehensive CEIS will not,
by itself, eliminate all causes of racial
and ethnic disproportionality and that
LEAs cannot reach all of the causes of
disproportionality. There are, however,
causes of significant disproportionality
that LEAs can address and effects that
LEAs can mitigate. It is our intention
that, in implementing final
§ 300.647(d)(1)(ii), an LEA will identify
and address the factors that contribute
to the significant disproportionality by
carrying out activities that LEAs
typically conduct, such as providing
services and supports to students or
professional development to staff. We do not regard using
comprehensive CEIS funds to identify
and address factors contributing to the
significant disproportionality and
allowing LEAs to provide
comprehensive CEIS to preschool
children and children with disabilities
as ‘‘more of the same.’’ Previously,
IDEA’s implementing regulations did
not require LEAs to identify and address
factors contributing to the significant
disproportionality as part of their
implementation of comprehensive CEIS.
In addition, we believe allowing LEAs
to use funds reserved for comprehensive
CEIS to serve children with disabilities
is more likely to address significant
disproportionality in placement and
discipline. For example, as one
commenter suggested, if LEAs can use
IDEA Part B funds reserved for
comprehensive CEIS to implement a
schoolwide program to address
problems in discipline and serve both
children with and without disabilities,
then significant disproportionality in
discipline may be reduced or
eliminated. Similarly, using funds
reserved for comprehensive CEIS to
serve preschool children, where their
needs can be assessed and addressed
early, is likely to address significant
disproportionality in the identification
of children with disabilities. Based on its identification of the
factors contributing to the significant
disproportionality, an LEA may use
IDEA Part B funds reserved for
comprehensive CEIS to provide a
targeted array of services and supports
to address those factors, including
professional development and
educational and behavioral evaluations,
services and supports in both the
general and special education
population. Section 300.646(d)
underscores the importance of allowing an LEA to determine which factors
contribute to a determination of
significant disproportionality and how
to effectively target IDEA Part B funds
reserved for comprehensive CEIS to
address those factors.
It is important to note that while
States are required to include preschool
children in the State’s determination of
significant disproportionality related to
discipline and to identification
(beginning July 1, 2020), final
§ 300.646(d)(2) allows, but does not
require, LEAs to provide comprehensive
CEIS to preschool children, with or
without disabilities (unless, under
§ 300.646(d)(1)(ii), a State determines
that there is significant
disproportionality in an LEA, and the
LEA determines that providing
comprehensive CEIS to preschool
children is necessary to address the
factors contributing to the
disproportionality). Change: None.
Comments: One commenter
recommended that the Department
revise proposed § 300.646(d)(3) to limit
the use of comprehensive CEIS for
children with disabilities to an
established proportion, set by the
Department and based on an evidence-
based determination of the relative
advantages of (1) early intervention to
prevent disparities in disability
identification and (2) subsequent
interventions to address disparities in
placement and disciplinary removal. Discussion: While we agree with the
commenter that apportioning funds
reserved for comprehensive CEIS based,
in part, on the expectation that specific
uses will lead to reducing significant
disproportionality in the area or areas in
which the LEA is identified, we do not
believe it would be appropriate to set a
single, national percentage of funds to
be dedicated to each allowable activity
under comprehensive CEIS. Those
decisions are best made by LEAs based
on determining the best ways to address
the specific issues that face each LEA,
in accordance with final
§ 300.646(d)(1)(ii). Therefore, we
decline to make this change. Further, under final § 300.646(d)(3),
an LEA may not limit the provision of
comprehensive CEIS to children with
disabilities. Therefore, an LEA must use
some of the funds reserved for
comprehensive CEIS to serve children
who are not currently identified as
needing special education and related
services, but who need additional
academic and behavioral support to
succeed in a general education
environment. However, we decline to
limit the amount of comprehensive CEIS
funds an LEA may use to serve children with disabilities because we want to
give each LEA the flexibility to
determine the amount of funds it will
use for children with disabilities based
on its analysis of the factors
contributing to significant
disproportionality in in the LEA.
Change: None.
Comments: Some commenters, stating
both that IDEA is underfunded and that
there is a possibility of additional
reservations of IDEA Part B money for
comprehensive CEIS, argued that IDEA
funds should be used primarily or
exclusively for children with
disabilities, not children without
disabilities. One of the commenters
suggested an amendment to the
language at § 300.646(d)(3) which
prohibits LEAs from providing
comprehensive CEIS solely to children
with disabilities.
Discussion: We understand these
comments to refer to proposed
§ 300.646(d)(3), which prohibits LEAs
from providing comprehensive CEIS
solely to children with disabilities. As
we explained in the NPRM at 81 FR
10986, recognizing the statutory
emphasis on providing early behavioral
and academic supports before a child is
identified, we believe allowing LEAs to
provide comprehensive CEIS only to
children with disabilities works directly
against the aims and intentions of IDEA.
For example, limiting comprehensive
CEIS solely to children with disabilities
would prohibit an LEA from providing
early behavioral and academic supports
and services to children before they are
identified as having a disability, which
is one way to reduce significant
disproportionality in the identification
of children as children with disabilities.
Limiting comprehensive CEIS solely to
children with disabilities would
prohibit an LEA from using IDEA Part
B funds reserved for comprehensive
CEIS to implement a schoolwide
program to address problems in
discipline, which is one way to reduce
significant disproportionality in
discipline. Therefore, the Department
declines to revise § 300.646(d)(3) to
allow LEAs to provide comprehensive
CEIS solely to children with disabilities.
Under final § 300.646(d)(1)(ii), LEAs
would have to use IDEA Part B funds
reserved for comprehensive CEIS to
identify and address the factors
contributing to the significant
disproportionality identified by the
State. Nothing in the regulations
prohibits an LEA from providing
comprehensive CEIS primarily, but not
exclusively, to children with
disabilities.
Changes: None.
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92448 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Comments: One commenter noted
that the prohibition in proposed
§ 300.646(d)(3) on using comprehensive
CEIS funds solely for children with
disabilities does not make sense in the
context of placement in a restrictive
educational setting because only
children with disabilities who have IEPs
are subject to this kind of placement. Discussion: We agree that final
§ 300.646(d)(3) prohibits an LEA
identified with significant
disproportionality in placement from
using comprehensive CEIS funds solely
to provide comprehensive CEIS to
children with disabilities. However, we
note that, in many instances,
circumstances in the LEA that may give
rise to disproportionate placement in
segregated settings may have an impact
on children with and without
disabilities. We encourage LEAs that are
identified with significant
disproportionality to closely examine
their policies, practices, and procedures
to identify the root causes of their
disproportionality and target their use of
funds reserved for comprehensive CEIS
to address those causes. There are
appropriate ways that an LEA identified
with significant disproportionality
related to placement may use IDEA Part
B funds reserved for comprehensive
CEIS for children without disabilities.
For example, an LEA may provide
professional development to regular
education teachers on the supports that
they can provide to enable a child with
a disability to be educated in the regular
class and participate in extracurricular
and other nonacademic activities with
nondisabled children. We understand
some LEAs may find that there are a
number of children without disabilities
who are impacted by the same root
cause in other ways and could also
benefit from the funding. Changes: None.
Comments: One commenter objected
on practical grounds to proposed
§ 300.646(d)(2) and the use of
comprehensive CEIS funds for
preschool children. The commenter
indicated that, in some States, the range
of possible placements for preschool
children with disabilities includes
settings where the State does not have
general supervision authority to regulate
discipline procedures or practices or
require data reporting. Discussion: We appreciate the
commenter’s concern and note that
under final § 300.646(d)(2), an LEA may,
but is not required to, use funds
reserved for comprehensive CEIS for
children ages three through five. Separately, we note that under IDEA
section 612(a), a State must make FAPE
available to all eligible children with disabilities residing in the State,
including children with disabilities
aged three through five, and in some
States, two year old children who will
turn three during the school year. Thus,
all of the requirements in Part B of IDEA
apply equally to all preschool children
with disabilities. The SEA must ensure
that a child with a disability, including
a preschool child, who is placed in or
referred to a private school or facility by
a public agency is provided special
education and related services in
conformity with his or her IEP and at no
cost to the parents; is provided an
education that meets the standards that
apply to education provided by the SEA
and LEAs, including the requirements of
IDEA; and has all of the rights of a child
with a disability who is served by a
public agency. (See, 34 CFR 300.146.)
Changes: None.
Funding Comprehensive CEIS Comment: A number of commenters
indicated that IDEA has never been fully
funded, and a few of these commenters
stated that they could not support
proposed § 300.646(d) until Federal
funding under Part B of IDEA is
increased. Commenters stated that, as
current IDEA funding only covers a
fraction of special education’s high total
cost, some LEAs choose to devote the
full amount of their Federal dollars to
special education. Discussion: The Department
understands the concern about reserving
IDEA Part B funds to provide
comprehensive CEIS when IDEA is not
funded at the maximum level allowed
under IDEA section 611(a)(2)(B).
However, under IDEA section 618(d) (20
U.S.C. 1418(d)), an LEA found to have
significant disproportionality based on
race or ethnicity must reserve 15
percent of its IDEA B funds for
comprehensive CEIS while continuing
to properly identify children in need of
special education and related services
and to provide them with a FAPE in
accordance with the requirements of
IDEA and its implementing regulations.
Under IDEA sections 612(a)(11) and
616(a)(1)(C) (20 U.S.C. 1412(a)(11) and
1416 (a)(1)(C)), the State must conduct
monitoring activities to ensure that all
LEAs meet these statutory requirements. Changes: None.
Comment: Some commenters opposed
proposed § 300.646(d), concerned that it
would result in LEAs reserving more
money for comprehensive CEIS. This,
these commenters stated, may or may
not address significant
disproportionality but would create
hardships for children with disabilities
and their teachers and staff, such as
reduced services and the inability to hire special education teachers and
other support staff. Other commenters
noted that some LEAs already struggle
to support the needs of children with
disabilities. One commenter noted that
any reduction in funding for special
education services would be harmful,
due to increases in the number of
children identified with autism.
Discussion: The Department
appreciates the commenters’ concerns
and recognizes that LEAs function
within challenging funding
environments. However, regardless of
IDEA funding levels, States must
comply with all IDEA requirements,
including the requirements related to
significant disproportionality. Under IDEA section 618(d) (20 U.S.C.
1418(d)), an LEA found to have
significant disproportionality based on
race or ethnicity must reserve 15
percent of its IDEA B funds for
comprehensive CEIS. Under
§ 300.646(d)(1)(ii), in implementing
comprehensive CEIS, the LEA must
identify and address the factors
contributing to the significant
disproportionality. We acknowledge
that the provision of comprehensive
CEIS has the potential to benefit both
special education and general
education. However, we emphasize that
the LEA has the flexibility to determine,
based on its identification of factors
contributing to the significant
disproportionality identified in the LEA,
which activities will be funded using
IDEA Part B funds reserved for
comprehensive CEIS. Changes: None.
Comment: Some commenters noted
that ESEA, rather than IDEA, is the most
appropriate mechanism for providing
children not yet identified with
disabilities with support and that IDEA
is not the appropriate vehicle for
addressing significant
disproportionality. These commenters
also stated that other Federal funds,
such as those made available through
title I of the ESEA, as amended, should
also be used to provide comprehensive
CEIS. Discussion: The Department supports
the flexible use of Federal funds,
particularly in the area of school-wide
reforms, as long as the Federal funds are
used in accordance with applicable
requirements. To that end, we issued
guidance on maximizing flexibility in
the administration of Federal grants.
OESE Letter to State Directors
(September 13, 2013). Further, we note that section 613(f)(5)
of IDEA states that funds an LEA
voluntarily reserves for CEIS may be
used to carry out services aligned with
activities funded by, and carried out
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under, ESEA if those funds are used to
supplement, and not supplant, funds
made available under the ESEA for
those activities. Thus, if IDEA funds an
LEA voluntary reserves for CEIS, or is
required to reserve for comprehensive
CEIS, do not supplant ESEA funds, they
may be used to supplement school
improvement activities conducted
under other programs, such as title I,
that are being implemented in an LEA.
See, IDEA section 613(f)(5) (20 U.S.C.
1413(f)(5)); OSEP Memorandum 08–09
(July 28, 2008).
That said, however, the Department
does not have the authority to require
the reservation of funds under the ESEA
pursuant to a determination of
significant disproportionality under
IDEA unless specified in law. Changes: None.
Comments: A number of commenters
objected to proposed § 300.646(d),
which would require an LEA, upon a
determination of significant
disproportionality by the State, to
reserve 15 percent of its IDEA Part B
funds, the ‘‘maximum amount of funds
under section 613(f),’’ for
comprehensive CEIS. These commenters
argued that the requirement is rigid and
unnecessarily redirects money from
children with disabilities. The
commenters suggested a variety of
alternatives to requiring reservation of
IDEA Part B funds to address significant
disproportionality. Some commenters suggested limiting
the requirement for reserving 15 percent
of IDEA Part B funds to only those
circumstances in which a State finds an
LEA uses discriminatory policies,
practices, and procedures in
implementing IDEA. Some commenters
suggested taking the 15 percent from
unspecified administrative costs or
sources other than IDEA Part B funds.
Others suggested that LEAs found with
significant disproportionality be
required to create remediation plans
that may include reserving IDEA Part B
funds for comprehensive CEIS. Still
others suggested allowing LEAs to
remedy significant disproportionality
using whatever percentage of IDEA
funds (up to 15 percent) is appropriate
to the circumstances and the
interventions needed. One commenter
suggested that the Department provide
an exemption from the 15 percent
mandate for LEAs that already remedy
significant disproportionality
effectively. Another encouraged the
Department to approach the regulation
by providing supports, rather than
administering punitive action, such as
providing additional funds and support
to LEAs with disproportionate
disciplinary actions and identification methods, since the root cause of
disproportionality is an under-informed
or under-resourced work force. A few
commenters suggested eliminating the
15 percent mandate altogether or to
allow Congress to address the issue in
the next reauthorization of IDEA.
Discussion: We appreciate both the
range of ideas suggested and the
difficulties that reserving 15 percent of
IDEA Part B funds may cause LEAs.
Nevertheless, the language of IDEA
section 618(d)(2)(B) is explicit: ‘‘the
State shall . . . require’’ any LEA
identified with significant
disproportionality ‘‘to reserve the
maximum amount of funds under
section 613(f) to provide’’
comprehensive CEIS to serve children
in the LEA. Under section 613(f)(1), the
maximum amount that can be reserved
is 15 percent of the amount of IDEA Part
B funds the LEA receives for any fiscal
year. Therefore, the Department lacks
the authority either to vary the amount
that must be reserved or to eliminate the
requirement altogether. Further, each LEA, in implementing
comprehensive CEIS, may carry out
activities that include professional
development, behavioral evaluations,
hiring reading or math specialists or
providing other supports and services
that the LEA has determined will
address the factors contributing to the
significant disproportionality. In
addition, under certain conditions,
comprehensive CEIS funds may be used
in combination with funds available
under title I to supplement school
improvement activities that are being
implemented in the LEA to address an
‘‘under-informed and under-resourced’’
work force, as long as IDEA funds and
ESEA funds are used in accordance with
applicable program requirements. See,
OESE Letter to State Directors
(September 13, 2013). Changes: None.
Comments: A few commenters asked
whether funds for providing
comprehensive CEIS to preschool
children under proposed § 300.646(d)(2)
would have to come from funds
awarded to an LEA under IDEA Part B
section 611, IDEA section 619, or both. Discussion: Neither the final
regulations nor IDEA specify the
specific source of funding (section 611
or section 619) from which an LEA is
required to reserve funds if it is
determined that said LEA has
significant disproportionality. While the
amount of the 15 percent reservation
must be calculated on the basis of both
the LEA’s section 611 and 619
allocations, LEAs retain full flexibility
regarding whether they actually take the
reservation from section 611 funds, section 619 funds, or both. LEAs also
retain this flexibility regardless of the
age of the children receiving
comprehensive CEIS.
Changes: None.
Comment: None.
Discussion: When an LEA is
identified as having significant
disproportionality, it is required to
reserve funds for the provision of
comprehensive CEIS. This requirement
is, clearly, an LEA-level requirement.
Each LEA is required to maintain
documentation that 15 percent of its
IDEA Part B funds were reserved for that
purpose and that those funds were used
to support allowable activities under
§ 300.646(d). However, an LEA does
have flexibility in how these funds are
allocated within the LEA how these
funds are expended. Nothing in these
regulations prevents an LEA from
distributing funds reserved for
comprehensive CEIS to its schools to
carry out activities authorized under
final § 300.646(d), nor are there
requirements for the process an LEA
must use when deciding how to allocate
those funds if they choose to do so. As
such, if an LEA determines that it is best
able to address the root cause of the
identified significant disproportionality
by providing a portion of its reserved
funds to a particular subset of schools
to support comprehensive CEIS
activities, it is permitted to do so under
these regulations, so long as it ensures
that those funds are expended in
accordance with final § 300.646(d).
Under § 300.202(a)(1), an LEA must
expend IDEA Part B funds in
accordance with the applicable
provisions of Part B. Under 34 CFR
76.731, an LEA must keep records to
show its compliance with program
requirements. Therefore, an LEA must
maintain documentation to demonstrate
that it expended IDEA Part B funds
reserved for comprehensive CEIS in
accordance with final § 300.646(d). In a growing number of LEAs
nationwide, schools are implementing
the flexibilities provided under ESEA
section 1114(b) to consolidate Federal
funds in a schoolwide program. Section
300.206(a) makes clear that IDEA Part B
funds may be consolidated in such a
school and instructs States and LEAs
how to calculate the amount of funds
that may be used for this purpose.
Further, § 300.206(b)(1) and (2) provide
that these funds must be considered
Federal Part B funds for the purposes of
calculating LEA MOE and excess cost
under § 300.202(a)(2) and (3), and that
these funds may be used without regard
to the requirements of § 300.202(a)(1).
Regardless, the LEA is still responsible
for meeting all other requirements of
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IDEA Part B, including ensuring that
children with disabilities in schoolwide
program schools ‘‘[r]eceive services in
accordance with a properly developed
IEP [individualized education
program]’’ and ‘‘[a]re afforded all of the
rights and services guaranteed to
children with disabilities under the Act
[IDEA].’’ See, § 300.206(c)(1) and (2).
LEAs are not prohibited from
providing funds reserved for
comprehensive CEIS to schools
operating a schoolwide program.
Further, the requirement to reserve
funds for comprehensive CEIS does not
override the flexibilities described in
§ 300.206. Instead, LEAs are only
required to ensure that any school
operating a schoolwide program to
which it provides funds for
comprehensive CEIS is able to
appropriately document that at least the
amount of funds provided to the school
for that purpose were so expended. For
example, if an LEA provides $100 of the
funds it has reserved for comprehensive
CEIS to a school implementing a
schoolwide program, that school is not
required to separately track and account
for those funds if it is otherwise
consolidating IDEA Part B funds.
Instead, the LEA would only need to
ensure that it can document that the
school spent at least $100 on allowable
activities under comprehensive CEIS. It
is not required to demonstrate that the
school expended $100 of IDEA Part B
funds. We believe that this
interpretation of the applicable statutes
and regulations provide maximum
flexibility to both schools and LEAs in
implementing both title I schoolwide
programs and comprehensive CEIS. Changes: None.
Implications for IEPs Comments: Many commenters
responded to the Department’s Directed
Question #12, which sought comments
on whether additional restrictions,
beyond the requirement in § 300.646(d)
to use comprehensive CEIS to identify
and address the factors contributing to
significant disproportionality, on the
use of comprehensive CEIS funds, are
appropriate for children who are already
receiving services under Part B of IDEA.
Most commenters objected to any
restriction of how comprehensive CEIS
funds should be used for children
already receiving services under Part B
of IDEA. Instead, these commenters
discussed the many supports and
services where comprehensive CEIS
could be used to enhance student
progress. For example, some suggested
that the funds be used to provide
functional behavioral assessments
(FBAs) and behavioral intervention plans (BIPs). Additionally, the
commenters noted that comprehensive
CEIS funds could be used to train key
personnel on how to develop effective
FBAs and BIPS or other instructional
supports. Some of these commenters
stated that local officials are best
positioned to say how comprehensive
CEIS funds should be used and that they
should not be limited in their choices in
how to address significant
disproportionality.
Discussion: We appreciate the
concerns expressed by the commenters
and note that the services and activities
they mention—training and professional
development on effective FBAs and
BIPs, a review of behavioral
intervention and supports included in
IEPs, positive behavioral interventions
and supports, multi-tiered systems of
supports—are all permitted under
§ 300.646(d)(1)(i) (‘‘An LEA may carry
out activities that include professional
development and educational and
behavioral evaluations, services, and
supports . . .’’). These services and
activities are also permitted under
§ 300.646(d)(1)(ii) to the extent that they
address factors that the LEA has
identified as contributing to the
significant disproportionality identified
in the LEA. We agree that local officials
should have the flexibility and
discretion to decide how comprehensive
CEIS funds are best allocated and spent. Under proposed § 300.646(d)(1)(ii),
the LEA must use comprehensive CEIS
funds to address factors contributing to
the significant disproportionality
identified by the State. These factors
may include, as enumerated in
proposed § 300.646(d)(1)(ii), a lack of
access to scientifically based instruction
and economic, cultural, or linguistic
barriers to appropriate identification or
placement in particular educational
settings, including disciplinary
removals. This requirement is
fundamental to the use of
comprehensive CEIS funds, and it
carries with it a practical limitation: An
LEA may use comprehensive CEIS
funds for training and professional
development and behavioral evaluations
and supports, such as FBAs, BIPs, and
positive behavioral interventions and
supports, but only to the extent that it
is doing so to address the factors
identified by the LEA as contributing to
the significant disproportionality
identified by the State. Therefore, if
comprehensive CEIS funds are used to
provide services that address factors
contributing to the significant
disproportionality identified by the
State, then the fact that those services
are also identified in some children’s
IEPs does not make the services impermissible or the expenditures
improper. Conversely, however, we
generally would not expect that using
comprehensive CEIS funds for the
purpose of providing services already
identified on a child’s IEP would
address factors contributing to the
significant disproportionality identified
by the State, as is required by proposed
§ 300.646(d).
Changes: None.
Comment: One commenter asked for
further explanation about how
including children with disabilities
within the scope of comprehensive CEIS
under proposed § 300.646(d)(2)(ii)
would affect services provided to these
children in accordance with their IEPs.
The commenter stated that, if a child is
receiving services under an IEP, then
receiving comprehensive CEIS is
‘‘contradictory.’’ In particular, the
commenter asked whether the
provisions guaranteeing FAPE to a child
with disabilities takes precedent over
provisions governing comprehensive
CEIS, who decides which services a
child gets, and whether proposed
§ 300.646(d) created a two-tiered system
of services that could treat some
children unfairly. Discussion: We believe that the
commenter’s concerns conflate the
obligation to provide FAPE to a child
with disabilities and the obligation to
reserve 15 percent of IDEA Part B funds
upon a finding by the State of
significant disproportionality. To begin with, it is optional under
final § 300.646(d)(2) for an LEA to use
IDEA Part B funds reserved for
comprehensive CEIS to serve children
with disabilities. If an LEA chooses to
do so, this in no way affects any child’s
entitlement to a FAPE. In implementing comprehensive
CEIS, an LEA must identify and address
the factors contributing to the
significant disproportionality identified
by the State. As we stated earlier, these
services may, but do not necessarily,
overlap with services identified on a
child’s IEP, given that we generally
would not expect that using funds
reserved for comprehensive CEIS to
provide services already identified on a
child’s IEP would address factors
contributing to the significant
disproportionality identified by the
State. The fact that services provided as
comprehensive CEIS may in some cases
overlap with services already identified
on a child’s IEP does not relieve the
LEA of its responsibility to ensure that
all of the special education and related
services and supplementary aids and
services identified on a child’s IEP are
provided to that child in accordance
with his or her IEP. There is no
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contradiction, no displacement of IEP
services by comprehensive CEIS
services, and no ‘‘two-tier’’ system
created.
To the extent that the commenter is
concerned about there being insufficient
Part B funds to fund services to children
with disabilities if 15 percent of an
LEA’s IDEA Part B funds are reserved
for comprehensive CEIS, we address
that issue under Use of Comprehensive
CEIS for Specific Populations elsewhere
in this document.
Implications for LEA Maintenance of
Effort (MOE)
Comment: A few commenters asked
whether extending comprehensive CEIS
to children with disabilities would
increase LEA maintenance of effort
(MOE) expenditures under § 300.203.
Several commenters indicated that they
did not support these regulations
because it could increase the amount of
local, or State and local, funds an LEA
would be required to expend for the
education of children with disabilities
to meet the LEA MOE requirement in
subsequent years including years in
which an LEA is no longer identified
with significant disproportionality.
For example, one commenter wrote
that if an LEA shifts special education
spending from its Part B funds to local
funds in order to meet its obligation to
set aside 15 percent of its Part B funds
for comprehensive CEIS, its local MOE
expenditure increases. However, when
the LEA is no longer identified with
significant disproportionality, the LEA
can’t subsequently reduce its local MOE
expenditures. Further, to ensure that
LEAs maintain their local expenditures
in case of a year-over-year reduction in
IDEA, Part B allocation, some
commenters requested that the
Department require that the maximum
amount of funds available for
comprehensive CEIS be reduced by the
reduction in the subgrant. Similarly,
another commenter noted that, given
that IDEA is underfunded, the
regulation would force LEAs to pass tax
increases so that local funds could
support the regulation. Other
commenters expressed that, since
special education must be provided
regardless of Federal funding, LEAs will
be forced to use State and local funds to
backfill 15 percent used for
comprehensive CEIS.
Discussion: Using IDEA Part B funds
reserved to provide comprehensive CEIS
for children with disabilities may, but
does not necessarily, affect the amount
of local, or State and local funds, an
LEA must expend to meet the MOE
requirement in § 300.203. Generally, under § 300.203(b), an LEA
may not reduce the amount of local, or
State and local, funds that it spends for
the education of children with
disabilities below the amount it spent
from the same source for the preceding
fiscal year. The calculation is based only
on local, or State and local—not
Federal—funds.
We understand that when an LEA
identified with significant
disproportionality is required to use 15
percent of its IDEA Part B funds for
comprehensive CEIS, it should consider
the effect that decreasing the available
IDEA Part B funds might have on the
amount of local or State and local funds
an LEA must expend to meet the LEA
MOE requirement. As one commenter
noted, if under § 300.646(d) an LEA is
required to reserve 15 percent of its
IDEA Part B funds for comprehensive
CEIS after a determination of significant
disproportionality, it may choose to use
local, or State and local, funds to
provide special education and related
services to children with disabilities to
replace IDEA Part B funds used to
provide comprehensive CEIS. If that is
the case, then the higher level of local,
or State and local, expenditures for the
education of children with disabilities
becomes the LEA’s new required level
of effort for the subsequent year.
The effect would be the same under
prior § 300.646 if, after a finding of
significant disproportionality, an LEA
reserved 15 percent of its IDEA Part B
funds for comprehensive CEIS and
increased by 15 percent the amount of
local, or State and local, funds it used
to provide special education and related
services to children with disabilities.
In short, § 300.646(d) makes no
changes to the regulations governing
LEA MOE.
We note that an LEA identified with
significant disproportionality will not
be able to take advantage of the LEA
MOE adjustment that would otherwise
be available under § 300.205 because of
the way that the MOE adjustment
provision and the authority to use Part
B funds for CEIS are interconnected. As
a result, no matter how much is
available for comprehensive CEIS or for
the MOE adjustment, an LEA that is
required to reserve the maximum 15
percent of its Part B allocation for
comprehensive CEIS will not be able to
use § 300.205(a) to reduce its MOE
obligation.
Appendix D to part 300 of the Code
of Federal Regulations sets out a number
of examples for the basic calculation.
We provide the following example
involving practical applications over
multiple fiscal years. Generally, an LEA may reserve IDEA
Part B funds that it is required to reserve
for comprehensive CEIS either from the
funds awarded for the Federal fiscal
year (FFY) following the date on which
the State identified the significant
disproportionality or from funds
awarded from the appropriation for a
prior FFY. For example, State X uses
data on identification collected for
school year 2015–2016, which is
reported in April 2016, to make a
determination in February 2017 that
LEA Y has significant disproportionality
related to identification and therefore
must set aside 15% of its IDEA Part B
funds for comprehensive CEIS. The
State makes this determination before
FFY 2017 funds become available on
July 1, 2017. The LEA has the following
three options. The LEA may set aside:
(1) 15 percent of the funds that the LEA
receives from its FFY 2017 IDEA Part B
allocation (available for obligation from
July 1, 2017, through September 30,
2019); (2) 15 percent of the funds that
the LEA received from its FFY 2016
IDEA Part B allocation (available for
obligation from July 1, 2016, through
September 30, 2018); or (3) 15 percent
of the funds that it received from the
FFY 2015 IDEA Part B allocation
(available for obligation from July 1,
2015 through September 30, 2017) only
if the LEA did not use the adjustment
to reduce its required level of effort in
the fiscal year covering school year (FY)
2015–2016 under § 300.205. If an LEA selects option 1, the LEA
will not be able to use the adjustment
to reduce its required level of effort
under § 300.205 in FY 2017–2018. If an LEA selects option 2, the LEA
will not be able to use the adjustment
to reduce its required level of effort
under § 300.205 in FY 2016–2017. An LEA can only select option 3 if the
LEA did not use the adjustment in
§ 300.205 to reduce its required level of
effort in FY 2015–2016. Because FY
2015–2016 would have ended at the
time the LEA is identified with
significant disproportionality in
February 2017, the LEA would already
know whether it used the adjustment in
§ 300.205 to reduce its required level of
effort in FY 2015–2016, and if it had
done so, could not use its FFY 2015
IDEA Part B funds to provide
comprehensive CEIS because of the way
the MOE adjustment provision and the
authority to use IDEA Part B funds for
comprehensive CEIS are interconnected. Information describing the actions
that States and LEAs must take to meet
MOE requirements and answers to
frequently asked questions about LEA
MOE can be found at www2.ed.gov/
about/offices/list/osers/osep/policy.htm.
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92452 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
(See, OSEP Memorandum 08–09,
Coordinated Early Intervening Services
(CEIS) under Part B of the Individuals
with Disabilities Education Act (IDEA)
dated July 28, 2008, response to
Question #23.)
Changes: None.
Comment: Some commenters
indicated that an expansion of the
allowable uses of comprehensive CEIS
to include K–12 children with
disabilities and preschool children with
and without disabilities would cause a
significant increase in the burden
associated with the Department’s IDEA
Part B Maintenance of Effort (MOE)
Reduction and Coordinated Early
Intervening Services (CEIS) data
collection. Others suggested that the
Department will have to expand this
data collection to account for the
additional children served by, and for
the funds spent on, comprehensive
CEIS. Some commenters suggested that
the Department require States to submit
data on CEIS expenditures,
disaggregated to show spending related
to identification, placement, and
disciplinary removals. Discussion: Current § 300.226(d)
requires each LEA that implements CEIS
to report to the State on the number of
children who received CEIS and the
number of those children who
subsequently received special education
and related services under Part B during
the preceding two-year period (i.e., the
two years after the child has received
CEIS). 71 FR 46540, 46628 (Aug. 14,
2006). A State’s decision to provide
comprehensive CEIS to children with
disabilities and preschool children with
or without disabilities may expand the
number of children who receive CEIS
and may increase the numbers reported.
We are sensitive to the practical
difficulties that might arise. After these
regulations become final, the
Department will consider what, if any,
modifications to IDEA Part B
Maintenance of Effort (MOE) Reduction
and Coordinated Early Intervening
Services (CEIS) data collection may be
needed to assist States and LEAs in
meeting their obligations under IDEA
section 613(f)(4) (20 U.S.C. 1413(f)(4))
and 34 CFR 300.226(d)). As we noted in
the NPRM, after finalizing these
regulations, the Department intends to
provide additional guidance on relevant
data collection and reporting
requirements. (81 FR 10979). Changes: None.
General Uses of Comprehensive CEIS
Funds Comments: Commenters suggested
many uses for IDEA Part B funds
reserved for comprehensive CEIS. These included a wide variety of detailed
suggestions for training and professional
development in particular subject areas
or in interventions, assessments, and
forms of instruction; hiring teachers and
staff with specific credentials, licenses,
or experience; implementing various
school-wide programs; and investing in
technology.
Some of these commenters asked the
Department whether comprehensive
CEIS funds, when used to identify and
address the factors contributing to
significant disproportionality, could be
‘‘braided’’ with other funds. Discussion: While the commenters
suggested important uses for IDEA Part
B funds reserved for comprehensive
CEIS, the question of whether they are
permissible uses of those funds depends
upon a State’s specific finding and
analysis of significant
disproportionality. That is, funds
reserved for comprehensive CEIS must
be used in accordance with the
requirements of § 300.646(d)(1)(i) and
(ii). Under § 300.646(d)(1)(i),
comprehensive CEIS funds may be used
to carry out a broad range of activities
that ‘‘include professional development
and educational and behavioral
evaluations, services, and supports.’’
Under § 300.646(d)(1)(ii),
comprehensive CEIS funds must be
used to identify and address factors
contributing to the significant
disproportionality identified by the
State. Finally, CEIS funds may be combined
with other Federal funds, provided that
the applicable requirements for both
funding streams are met. On September
13, 2013, the Department issued
guidance on maximizing flexibility in
the administration of Federal grants.
OESE Letter to State Directors. Changes: None.
Comments: Some commenters
supported proposed § 300.646(d)(1)(ii),
which would require that in
implementing comprehensive CEIS, an
LEA must identify and address the
factors contributing to significant
disproportionality. These commenters
stated that this promotes improved
outcomes and a more focused use of
resources and further added that the
exercise of identifying and addressing
contributing factors promoted better
transparency and accountability when
addressing significant
disproportionality. Other commenters
asked that the Department provide
specific technical assistance to help
States and LEAs to identify these factors
and evidence-based practices to address
significant disproportionality in the
LEA. One of these commenters pointed
out that there are practical limitations on personnel and funds and, therefore,
that States’ ability to provide assistance
to LEAs is limited. Another commenter
noted that simply requiring LEAs to
identify and address the factors
contributing to disproportionality does
not provide sufficient guidance or
information for an LEA to know what
those factors would be or how to bring
about systems change. That commenter
further noted that multiple indicators,
beyond the risk ratio, might be
necessary to self-assess and determine
effective methods of addressing these
factors. One commenter stated that,
unless States are required to assist LEAs
in their efforts to identify and address
the factors contributing to the
significant disproportionality, this
portion of the § 300.646(d)(1)(ii) will be
meaningless.
Discussion: We recognize the
commenters’ concern that LEAs would
like additional guidance or information
on identifying and addressing the
factors that may contribute to significant
disproportionality. Therefore, we have
added examples such as inappropriate
use of disciplinary removals; lack of
access to appropriate diagnostic
screenings; differences in academic
achievement levels; and policies,
practices, or procedures that contribute
to the significant disproportionality to
the list of factors in § 300.646(d)(1)(ii)
that may contribute to significant
disproportionality. We encourage LEAs
identified with significant
disproportionality in identification that
determine the overrepresentation of one
racial or ethnic group is occurring due
to under-identification of another racial
or ethnic group or groups, to consider
how differences in academic
achievement levels may contribute to
the significant disproportionality in
identification. We have also added a new
§ 300.646(d)(1)(iii) to clarify that as part
of implementing comprehensive CEIS,
an LEA must address a policy, practice,
or procedure it identifies as contributing
to the significant disproportionality,
including a policy, practice, or
procedure that results in a failure to
identify, or the inappropriate
identification of, a racial or ethnic group
(or groups). An LEA has the discretion
as to how to address the policy, practice
or procedure, by eliminating, revising or
changing how it is implemented to
ensure that it does not contribute to the
significant disproportionality, including
that it does not result in a failure to
identify, or the inappropriate
identification of, a racial or ethnic group
(or groups). In addition, the Department intends to
issue guidance to provide responsible
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92453 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
public agencies with information to
assist them in meeting their obligations
under IDEA and its implementing
regulations, including those provisions
related to significant disproportionality.
To that end, the Department maintains
a technical assistance and dissemination
network of services and supports that
address a variety of topics. For more
information, see
www.osepideasthatwork.org.
Changes: We have revised
§ 300.646(d)(1)(ii) to include additional
factors that may contribute to significant
disproportionality and added a new
§ 300.646(d)(1)(iii) to clarify that in
implementing comprehensive CEIS, an
LEA must address policies, practices, or
procedures it identifies as contributing
to significant disproportionality. Comment: One commenter noted that,
while administrators may choose to use
Federal funding for de-leading, this type
of expenditure may not be a wise use of
Federal special education resources. Discussion: While using funds
reserved for comprehensive CEIS for de-
leading activities is not specifically
prohibited by the final regulations, it is
our intention that LEAs will identify
and address the factors that contribute
to the significant disproportionality
identified by the State by carrying out
activities that LEAs typically conduct,
such as providing services and supports
to students or professional development
to staff. We agree with the commenter
that using funds reserved for
comprehensive CEIS for de-leading
activities may not be an effective use of
IDEA Part B funds reserved for
comprehensive CEIS, especially given
other potential funding sources
available for de-leading activities and
the amount of funds that may be needed
to carry out these activities. We note
that under IDEA section 605 (20 U.S.C.
1404), an LEA must obtain approval
from the State prior to using IDEA Part
B funds for equipment, construction, or
alteration of facilities. See also, 2 CFR
200.439. Changes: None.
Implications for Voluntary
Implementation of CEIS Comments: Many commenters
provided recommendations to address
the low utilization rate of voluntary
CEIS under IDEA section 613(f)(20
U.S.C. 1413(f)). A number of these
commenters suggested that the
Department should, or asked whether
the Department intended to, extend
voluntary CEIS to children with
disabilities and children ages three
through five under current § 300.226
(‘‘voluntary CEIS’’). One commenter in
particular noted that this would enable States and LEAs to provide CEIS prior
to being identified for significant
disproportionality and would address
the current low rate of voluntary CEIS
use among LEAs.
Further, commenters noted that the
voluntary use of IDEA funds to provide
early intervention services comes with
additional reporting requirements. Discussion: Under IDEA section 613(f)
(20 U.S.C. 1413(f)), an LEA may
voluntarily use up to 15 percent of its
IDEA Part B funds to provide CEIS to
children in kindergarten through grade
12 (with a particular emphasis on
children in kindergarten through grade
3) who have not been identified as
needing special education or related
services but who need additional
academic and behavioral support to
succeed in a general education
environment. Therefore, the Department
lacks the authority to expand the
population of children who can be
provided voluntary CEIS under IDEA
section 613(f). As to reporting requirements, the
State must report in the IDEA Part B
LEA Maintenance of Effort Reduction
and Coordinated Early Intervening
Services data collection on the amount
of IDEA Part B funds each LEA in the
State voluntarily uses for CEIS and,
consistent with the information each
LEA must report annually to the State
under § 300.226(d), the total number of
children who received CEIS during the
reporting period, and the number of
children who received CEIS during the
two school years prior to the reporting
period and received special education
and related services during the reporting
year for each LEA. See, www.ed.gov/
edfacts for further information.
Changes: None.
Comments: A few commenters,
though not opposing proposed
§ 300.646(d)(2), noted that including
children with disabilities and children
from ages three through five within the
scope of comprehensive CEIS, but not
voluntary CEIS, could create some
practical difficulties. One of these
commenters noted that this would
create different reporting requirements
for comprehensive and voluntary CEIS.
Another commenter stated that having
different reporting requirements was
burdensome and asked that the
disparate reporting requirements be
streamlined. Still another commenter
noted that the different eligibility
requirements for comprehensive CEIS
might create budgeting, accounting, or
documentation problems because
voluntary CEIS funds cannot be freely
substituted for comprehensive CEIS
funds. Services for children with
disabilities begun with funds reserved for comprehensive CEIS, for example,
could not be continued with funds
reserved for voluntary CEIS, which
cannot be used to provide
comprehensive early intervening
services to preschool children.
Discussion: We are sensitive to the
practical difficulties that might arise
from the differences between
comprehensive and voluntary CEIS. As
part of the Part B Maintenance of Effort
(MOE) Reduction and Coordinated Early
Intervening Services (CEIS) data
collection, States must report data
submitted by LEAs, pursuant to IDEA
section 613(f)(4) and § 300.226(d),
including the total number of children
who received CEIS during the reporting
period, and the number of children who
received CEIS during the two school
years prior to the reporting period and
received special education and related
services during the reporting year.
After these regulations become final,
the Department will consider what, if
any, modifications to the Part B
Maintenance of Effort (MOE) Reduction
and Coordinated Early Intervening
Services (CEIS) data collection may be
needed to assist States and LEAs in
meeting their obligations under IDEA
section 613(f)(4) (20 U.S.C. 1413(f)(4))
and § 300.226(d).
However, the Department disagrees
with commenters that the differences in
eligibility between CEIS and
comprehensive CEIS will present
significant challenges to LEAs working
to address significant disproportionality
and to prevent its reoccurrence.
Consider an LEA that includes children
with disabilities in its implementation
of comprehensive CEIS, and, in so
doing, successfully addresses the factors
contributing to the significant
disproportionality. In a year in which
the State does not identify the LEA with
significant disproportionality, the LEA
is not required to reserve 15 percent of
its IDEA Part B funds for comprehensive
CEIS. The LEA may not use funds it
voluntarily reserves under IDEA section
613(f) (20 U.S.C. 1413(f)) to provide
children with disabilities with CEIS;
however, the LEA may continue to serve
these children using its IDEA, Part B
funds in accordance with § 300.202 and
IDEA section 613(a)(2)(A) (20 U.S.C.
1413(a)(2)(A)). Further, the LEA may not
use funds it voluntarily reserves under
IDEA section 613(f) (20 U.S.C. 1413(f))
to provide CEIS to preschool children
ages three through five who are not in
kindergarten; however, the LEA may
continue to serve preschool children
with disabilities ages three through five
using its IDEA, Part B funds in
accordance with § 300.202 and IDEA
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92454 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
section 613(a)(2)(A) (20 U.S.C.
1413(a)(2)(A)).
Changes: None.
Miscellany Comment: Some commenters argued
that proposed § 300.646(d) would create
an incentive to not identify children for
special education and related services in
order to reduce disproportionality
numbers and show that comprehensive
CEIS is working. Discussion: As we noted earlier in this
document, under General— Proposed
Regulation Would Create Racial Quotas,
the Department recognizes the
possibility that, in cases where States
select particularly low risk ratio
thresholds, LEAs may have an
inappropriate incentive to avoid
identifying children from particular
racial or ethnic groups in order to avoid
a determination of significant
disproportionality and the reservation of
IDEA Part B funds for comprehensive
CEIS. However, these actions would be
inconsistent with IDEA’s child find
requirements in section 612(a)(3) (20
U.S.C. 1412(a)(3)) and the evaluation
requirements in section 612(a)(7) and
section 614(a)–(c) of IDEA (20 U.S.C.
1412(a)(7) and 20 U.S.C. 1414(a)–(c)).
All these provisions require an
individualized determination of
whether a child has a disability and the
nature and extent of the special
education and related services that a
child needs. IDEA requires that these
decisions be based solely on the
individual needs of the child, and not
to avoid a determination of significant
disproportionality. For this reason,
§ 300.647(b)(1) provides States the
flexibility to set their own reasonable
risk ratio thresholds, with input from
stakeholders and State Advisory Panels.
It is the Department’s expectation that,
as part of the process of setting risk ratio
thresholds, States will work with
stakeholders to identify particular risk
ratio thresholds that help the State to
address large racial and ethnic
disparities without undermining the
appropriate implementation of child
find and evaluation procedures. We
note that States have an obligation
under IDEA both to identify significant
disproportionality, based on race and
ethnicity, in the identification of
children with disabilities and to ensure
that LEAs implement child find and
evaluation procedures appropriately.
(20 U.S.C. 1412(a)(3); 34 CFR 300.111). Changes: None.
Comments: A commenter suggested
that, in proposed § 300.646(d)(2), the
Department replace the term ‘‘over-
identified’’ with ‘‘overrepresented’’ to
avoid misconceptions that the clause only refers to the over-identification of
disabilities.
Discussion: We appreciate the
commenter’s concern, however, the
language in question is taken directly
from IDEA and therefore we decline to
change it. Section 300.646(d)(2) refers to
comprehensive coordinated early
intervening services. The underlying
statute, IDEA section 618(d)(2)(B) (20
U.S.C. 1418(d)(2)(B), specifically
provides that States must require LEAs
identified with significant
disproportionality under section
618(d)(1) to reserve the maximum
amount of funds under 613(f) to provide
comprehensive coordinated early
intervening services to children in the
LEA, ‘‘particularly children in those
groups that were significantly
overidentified’’ under section 618(d)(1). Changes: None.
Comment: One commenter suggested
that the Department require States to
specify, as part of their reporting on
comprehensive CEIS, a listing of the
types of technical assistance and
professional development that will be
offered to LEAs. Discussion: While the Department
encourages States to make technical
assistance available to LEAs, and the
Department intends to do the same, we
decline to require States to specify, as
part of their reporting on comprehensive
CEIS, a listing of the types of technical
assistance and professional
development that will be offered to
LEAs. We believe that the benefit of
reporting on the technical assistance
that will be offered to LEAs would not
justify the burden of requiring States to
collect and report this information to
the Department. Changes: None.
References
Bollmer, J., Bethel, J., Garrison-Mogren, R., & Brauen, M. (2007). Using the Risk Ratio
to Assess Racial/Ethnic
Disproportionality in Special Education
at the School-District Level. Journal of
Special Education, 41(3), 186–198.
Data Accountability Center (2013). IDEA, Part B Dictionary (revised January 2013).
Retrieved from www2.ed.gov/programs/
osepidea/618-data/collection-
documentation/legacy-data-collection-
information/data-dictionary/b-
datadictionary.pdf.
Donovan, M.S., and Cross, T. (Eds.) (2002). Minority Students in Special and Gifted
Education. Washington, DC: National
Academies of Sciences, Committee on
Minority Representation in Special
Education.
Klingner, J.K., Artiles, A.J., Kozleski, E., Harry, B., Zion, S., Tate, W., Duran, G.Z.;
Riley, D. (2005). Addressing the
Disproportionate Representation of
Culturally and Linguistically Diverse Students in Special Education through
Culturally Responsive Educational
Systems. Education Policy Analysis
Archives, 13(38). Retrieved from http://
files.eric.ed.gov/fulltext/EJ846743.pdf.
Morgan, P.L., Farkas, G., Hillemeier, M.M., Mattison, R., Maczuga, S., Li, H. & Cook,
M. (2015). Minorities Are
Disproportionately Underrepresented in
Special Education: Longitudinal
Evidence Across Five Disability
Conditions. Education Researcher, 44(5),
1–15.
Oswald, Coutinho, & Best (2002). Community and School Predictors of
Overrepresentation of Minority Children
In Special Education. Harvard Education
Press, Cambridge: 375–377.
Skiba, R., Artiles, A., Kozleski, E., Losen, D. and Harry, E. (2015). Risks and
Consequences of Oversimplifying
Educational Inequities: A Response to
Morgan et al. Educational Researcher,
45(3), 221–225.
U.S. Department of Education, Office of Planning, Evaluation and Policy
Development. ‘‘FILE C002—Children
With Disabilities (IDEA) School Age File
Specifications.’’ Washington, DC, 2013.
Retrieved from www2.ed.gov/about/inits/ ed/edfacts/eden/non-xml/c002-10-0.doc.
U.S. Department of Education, National Center for Education Statistics.
‘‘Statistical Methods for Protecting
Personally Identifiable Information in
Aggregate Reporting.’’ NCES 2011–603
(December 2010, Brief 3). Retrieved from
https://nces.ed.gov/pubs2011/
2011603.pdf.
U.S. Department of Education, Office of Elementary and Secondary Education.
‘‘Maximizing Flexibility in the
Administration of Federal Grants: IDEA,
Title I, Title II, and Non-Federal Funds
in Schoolwide Programs.’’ September 13,
2013. Retrieved from www2.ed.gov/
programs/titleiparta/flexswp091313.pdf.
U.S. Department of Education, Office of Special Education Programs.
‘‘Disproportionality of Racial and Ethnic
Groups in Special Education.’’
Memorandum OSEP 07–09, April 24,
2007. Retrieved from www2.ed.gov/
policy/speced/guid/idea/memosdcltrs/
osep07-09disproportionalityofracialand
ethnicgroupsinspecialeducation.doc.
U.S. Department of Education, Office of Special Education Programs. ‘‘Reporting
on Correction of Noncompliance in the
Annual Performance Report Required
under Sections 616 and 642 of the
Individuals with Disabilities Education
Act.’’ Memorandum OSEP 09–02,
October 17, 2008. Retrieved from
www2.ed.gov/policy/speced/guid/idea/
memosdcltrs/osep09-02timelycorrection
memo.pdf.
U.S. Department of Education, Office of Special Education Programs.
‘‘Coordinated Early Intervening Services
(CEIS) Under Part B of the Individuals
with Disabilities Act (IDEA).’’
Memorandum OSEP 08–09, July 28,
2008. Retrieved from www2.ed.gov/
policy/speced/guid/idea/ceis.html.
U.S. Department of Education, Office of Special Education Programs. ‘‘Dear
VerDate Sep2014 22:15 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 E:FRFM19DER8.SGM 19DER8sradovich on DSK3GMQ082PROD with RULES8
92455 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Colleague Letter Regarding Education of
Children with Disabilities Attending
Public Virtual Schools.’’ August 5, 2016.
Retrieved from www2.ed.gov/policy/
speced/guid/idea/memosdcltrs/dcl-
virtual-schools-08-05-2016.pdf.
U.S. Department of Education, Office of Special Education Programs. ‘‘OSEP Dear
Colleague Letter on Ensuring Equity and
Providing Behavioral Supports to
Students with Disabilities.’’ August 1,
2016. Retrieved from www2.ed.gov/
policy/gen/guid/school-discipline/files/
dcl-on-pbis-in-ieps-08-01-2016.pdf.
U.S. Department of Education, Office of Special Education Programs. ‘‘Questions
and Answers on Disproportionality.’’
June 2009. Retrieved from www2.ed.gov/ policy/speced/guid/idea/
disproportionality-q-a.pdf.
U.S. Department of Education, Office of Special Education Programs. ‘‘A
Response to Intervention (RTI) Process
Cannot Be Used to Delay-Deny an
Evaluation for Eligibility under the
Individuals with Disabilities Education
Act (IDEA).’’ Washington, DC. Retrieved
from www2.ed.gov/policy/speced/guid/
idea/memosdcltrs/osep11-
07rtimemo.pdf.
U.S. Department of Education, Office of Special Education and Rehabilitative
Services (2015). 37th Annual Report to
Congress on the Implementation of the
Individuals with Disabilities Education
Act (2015), Washington, DC. Retrieved
from www2.ed.gov/about/reports/
annual/osep/2015/parts-b-c/index.html .
U.S. Department of Education, Office of Special Education Programs. ‘‘Letter to
Texas Education Agency Associate
Commissioner Susan Barnes.’’ December
8, 2003. Retrieved from www2.ed.gov/
policy/speced/guid/idea/letters/2003-4/
barnes121803charter4q2003.pdf .
U.S. Department of Education, Office of Special Education Programs. ‘‘Letter to
Ms. Frances Loose, Supervisor, Michigan
Office of Special Education and Early
Intervention.’’ June 3, 2008. Retrieved
from www2.ed.gov/policy/speced/guid/
idea/letters/2008-2/
loose060308disprop2q2008.pdf.
U.S. Department of Education, Office of Special Education and Rehabilitative
Services. (2015). Racial and Ethnic
Disparities in Special Education: A
Multi-Year Disproportionality Analysis
by State, Category, and Race/Ethnicity
Analysis, Washington, DC. Retrieved
from www2.ed.gov/programs/osepidea/
618-data/LEA-racial-ethnic-disparities-
tables/disproportionality-analysis-by-
state-analysis-category.pdf.
U.S. Department of Education, EDFacts Metadata and Process System (EMAPS),
OMB Control No. 1820–0689: ‘‘IDEA Part
B Maintenance of Effort (MOE)
Reduction and Coordinated Early
Intervening Services (CEIS),’’ 2015.
U.S. Department of Education, EDFacts Data
Warehouse (EDW), OMB Control No.
1875–0240: ‘‘IDEA Part B Child Count
and Educational Environments
Collection,’’ 2015.
U.S. Department of Education, EDFacts Data
Warehouse (EDW), OMB Control No. 1875–0240: ‘‘IDEA Part B Discipline
Collection,’’ 2014.
U.S. Department of Education, U.S.
Department of Health and Human
Services, 2015. Policy Statement on
Inclusion of Children With Disabilities
in Early Childhood Programs. Retrieved
from www2.ed.gov/about/inits/ed/
earlylearning/inclusion/index.html.
U.S. Government Accountability Office. (2013). INDIVIDUALS WITH
DISABILITIES EDUCATION ACT—
Standards Needed to Improve
Identification of Racial and Ethnic
Overrepresentation in Special Education
(GAO–13–137). Retrieved from
www.gao.gov/products/GAO-13-137 .
White House, Office of Management and Budget. ‘‘Statistical Policy Working
Paper 22: Report on Statistical Disclosure
Limitation Methodology.’’ Second
version, 2005. Retrieved at www.hhs.gov/ sites/default/files/spwp22.pdf.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is ‘‘significant’’ and,
therefore, subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget (OMB). Section 3(f) of Executive
Order 12866 defines a ‘‘significant
regulatory action’’ as an action likely to
result in a rule that may— (1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule); (2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; (3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order. This regulatory action is a significant
regulatory action subject to review by
OMB under section 3(f) of Executive
Order 12866. We have also reviewed these
regulations under Executive Order
13563, which supplements and
explicitly reaffirms the principles,
structures, and definitions governing
regulatory review established in
Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency— (1) Propose or adopt regulations only
upon a reasoned determination that their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify);
(2) Tailor their regulations to impose
the least burden on society, consistent
with obtaining regulatory objectives and
taking into account—among other
things, and to the extent practicable—
the costs of cumulative regulations; (3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity); (4) To the extent feasible, specify
performance objectives, rather than
specifying the behavior or manner of
compliance that regulated entities must
adopt; and (5) Identify and assess available
alternatives to direct regulation,
including providing economic
incentives—such as user fees or
marketable permits—to encourage the
desired behavior, or provide
information that enables the public to
make choices. Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’ We are issuing these final regulations
only upon a reasoned determination
that their benefits justify their costs. In
choosing among alternative regulatory
approaches, we selected those
approaches that maximize net benefits.
Based on the analysis that follows, the
Department believes that these
regulations are consistent with the
principles in Executive Order 13563. We also have determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions. In this Regulatory Impact Analysis we
discuss the need for regulatory action,
alternatives considered, the potential
costs and benefits, net budget impacts,
assumptions, limitations, and data
sources.
Need for These Regulations
As we set out in detail in the
preamble to the NPRM, the
overrepresentation of children of color
in special education has been a national
concern for more than 40 years. In its
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revisions of IDEA, Congress noted the
problem and put a mechanism in place
through which States could identify and
address significant disproportionality
on the basis of race and ethnicity for
children with disabilities. For a
description of how the significant
disproportionality statutory provisions
apply to States and LEAs along with the
corresponding remedies, please refer to
the text of the preamble.
Also, as stated in the preamble, IDEA
does not define ‘‘significant
disproportionality,’’ and, in our August
2006 regulations, the Department left
the matter to the discretion of the States.
Since then, States have adopted
different methodologies across the
country, and, as a result, far fewer LEAs
are identified as having significant
disproportionality than may be
anticipated given the widespread
disparities in rates of identification,
placement, and disciplinary removal
across racial and ethnic groups, as noted
by the GAO study and supported by the
Department’s own data analysis. The
lack of consistency, and relatively low
number of LEAs identified as having
significant disproportionality, raises
concerns about whether the prior
approach was being implemented to
meet Congress’ intent to address racial
and ethnic disparities in special
education and to ensure compliance
with IDEA. Therefore, there is a need for
a common methodology for States to
apply when making determinations of
significant disproportionality, to
address the complex, manifold causes of
the issue and ensure compliance with
the requirements of IDEA. In addition, there is a corresponding
need to expand comprehensive CEIS to
include children from age 3 through
grade 12, with and without disabilities,
and to require LEAs to provide
comprehensive CEIS to identify and
address factors contributing to the
significant disproportionality. The
current allowable uses of IDEA Part B
funds reserved for comprehensive CEIS
prohibit LEAs from directing resources
to children with disabilities directly
impacted by inappropriate
identification, placement, or discipline
and also prohibit LEAs from providing
early intervening services to preschool
children. This latter prohibition is
especially problematic, since early
intervening services have been shown to
reduce the need for more extensive
services in the future. Therefore,
expanding the provision of
comprehensive CEIS to preschool
children allows LEAs to identify and
address learning difficulties in early
childhood, reducing the need for
interventions and services later on. Alternatives Considered
Currently, IDEA does not define
‘‘significant disproportionality’’ or
prescribe to States how it must be
measured. As a result, States have
adopted numerous methodologies for
determining if LEAs demonstrated
significant disproportionality based on
race and ethnicity. In the NPRM, the
Department proposed that all States use
a standard methodology—the risk
ratio—to make determinations of
significant disproportionality in the
LEAs of the State. The Department
reviewed and considered various
alternatives to the proposed regulations
submitted by commenters in response to
the NPRM. The Department considered
comments requesting that the
Department withdraw the NPRM and
not require States to apply a standard
methodology to identify significant
disproportionality. Some of these
commenters suggested that the
Department first pilot a standard
methodology in several States, gather
that data for analysis, and then provide
resources and technical assistance to
help States and LEAs address significant
disproportionality. Other commenters
stated that LEAs are better positioned to
determine the factors that contribute to
significant disproportionality and are
uniquely positioned to address those
factors without the imposition of a
standard methodology that did not
consider local demographics. Other
commenters stated that schools had no
control over the poverty, health factors
or other social ills that contribute to
disability and that mandating a standard
methodology would do nothing to
address those issues or the number of
children of color in special education.
The Department’s effort to establish a
standard methodology for States and
LEAs to determine whether significant
disproportionality exists based on race
or ethnicity is designed to: (1) Address
Congress’ concern ‘‘that more minority
children continue to be served in
special education than would be
expected from the percentage of
minority children in the general
education.’’ IDEA section 601(c)(12)(B)
(20 U.S.C. 1400(c)(12)(B)); and (2)
address the GAO report (GAO–13–137)
which stated that the Department’s
oversight of racial and ethnic
overrepresentation in special education
is hampered by the flexibility States
have to individually define significant
disproportionality. The GAO
recommended that the Department, to
promote consistency, develop a
standard approach to defining
significant disproportionality to be used by all States. As to the potential impact
of a standard methodology, the
Department acknowledges that
mandating a standard methodology to
measure significant disproportionality
will not resolve poverty, poor health
and environmental conditions or other
factors thought to contribute to
significant disproportionality. However,
the Department believes that there is a
need for a common methodology for
determinations of significant
disproportionality in order for States
and the Department to better identify
and address the complex, manifold
causes of the issue and ensure
compliance with the requirements of
IDEA.
In applying the risk ratio method to
determine significant
disproportionality, the proposed
regulations required States to use a
standard methodology which included a
risk ratio, or if appropriate, an alternate
risk ratio; a reasonable risk ratio
threshold; and a minimum n-size
(referred to as ‘‘cell size’’ in the NPRM)
as the standard methodology to
determine whether there is significant
disproportionality based on race or
ethnicity in the State and its LEAs.
States would have to analyze an LEA for
significant disproportionality if the LEA
had at least 10 children in a racial or
ethnic group (for purposes of
identification), or at least 10 children
with disabilities in the racial or ethnic
group (for purposes of placement or
discipline). In general, most comments
about the minimum n-size addressed
the tension between setting a n-size too
low and producing unreliable results
and setting a n-size too high and
exempting LEAs from being reviewed
for significant disproportionality. Many
commenters opposed the n-size
limitation of 10 and requested that it be
raised to 30 or 40, or eliminated entirely
and leave the n-size to State discretion.
These commenters argued that a larger
minimum n-size is necessary for reliable
analysis to avoid LEA identification for
significant disproportionality based on a
very small numbers of children. Other
commenters expressed support for the
Department’s minimum n-size proposal
of 10 but were willing to accept an
increase to 15, to ensure that the
maximum number of LEAs is reviewed
for significant disproportionality. The
Department recognizes that selecting an
appropriate minimum number of
children necessary to include an LEA in
the State’s analysis of significant
disproportionality can be difficult. If the
minimum n-size is too small, more
LEAs would be included in the analysis
but the likelihood of dramatic,
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statistically anomalous changes in risk
ratio from one year to the next would
increase. By contrast, if the minimum
number is set too high, a larger number
of LEAs would be excluded from the
analysis and States would not identify
as many LEAs with significant
disproportionality as there might be.
The Department has amended its
proposal of a minimum n-size of 10 and
will now allow States to select
reasonable minimum n-sizes and
reasonable minimum cell sizes, based
on advice from stakeholders including
State Advisory Panels and subject to
monitoring and enforcement for
reasonableness, that strike a balance
between volatility and inclusion of
LEAs in the analysis for significant
disproportionality.
Many commenters agreed with the
Department’s requirement that all States
use the risk ratio as the standard
methodology for determining significant
disproportionality. These commenters
noted that the use of a common
analytical method for determining
significant disproportionality would
increase transparency in LEA
identification across States for LEA,
State and Federal officials, as well as the
general public. However, some
commenters indicated that the
Department should not allow States to
set a reasonable risk ratio threshold or
allow States to vary the application of
the risk ratio analysis to account for
State differences. These commenters
stated that methodological alignment
across States is needed to advocate on
behalf of children with disabilities,
reduce time and effort needed for data
analysis and to enact appropriate
policies, procedures and practices to
address disproportionality on the basis
of race or ethnicity. The Department
considered these concerns and
acknowledges the need for a common
methodology for determinations of
significant disproportionality in order to
better identify and address the complex
causes of significant disproportionality.
However, as some commenters noted,
LEAs vary widely as to size and
population. Some LEAs include
specialized schools, hospitals or
community services that may draw large
numbers of children with disabilities
and their families. States are better
positioned to identify and address the
factors contributing to significant
disproportionality in the LEAs. The
final regulations allow States, in the
determination of significant
disproportionality, to set reasonable risk
ratio thresholds, reasonable minimum
cell sizes and reasonable minimum n- sizes, based on advice from stakeholders
including the State Advisory Panel.
Discussion of Costs, Benefits and
Transfers
The Department has analyzed the
costs of complying with the final
requirements. Due to the considerable
discretion the final regulations provide
States (e.g., flexibility to determine their
own risk ratio thresholds, reasonable
minimum n-sizes and cell sizes, and the
extent to which LEAs have made
reasonable progress under
§ 300.647(d)(2) in lowering their risk
ratios or alternate risk ratios), we cannot
evaluate the costs of implementing the
final regulations with absolute
precision. However, we estimate that
the total cost of these regulations over
ten years would be between $50.1 and
$91.4 million, plus additional transfers
between $298.4 and $552.9 million.
These estimates assume discount rates
of three to seven percent. Relative to
these costs, the major benefits of these
requirements, taken as a whole, would
include: Ensuring increased
transparency regarding each State’s
definition of significant
disproportionality; establishing an
increased role for State Advisory Panels
in determining States’ risk ratio
thresholds, minimum n-sizes, and
minimum cell sizes; reducing the use of
potentially inappropriate policies,
practices, and procedures as they relate
to the identification of children as
children with disabilities, placements in
particular educational settings for these
children, along with the incidence,
duration, and type of disciplinary
removals from these placements,
including suspensions and expulsions;
and promoting and increasing
comparability of data across States in
relation to the identification, placement,
and discipline of children with
disabilities by race or ethnicity.
Additionally, the Department believes
that expanding the eligibility of children
ages three through five to receive
comprehensive CEIS would give LEAs
new flexibility to use additional funds
received under Part B of IDEA to
provide appropriate services and
supports at earlier ages to children who
might otherwise later be identified as
having a disability, which could reduce
the need for more extensive special
education and related services for these
children in the future.
Benefits
The Department believes this
regulatory action to standardize the
methodology States use to identify
significant disproportionality will
provide clarity to the public, increase comparability of data across States, and
enhance the overall level of
transparency regarding the
appropriateness of State-level policies,
practices, and procedures as they relate
to the identification, placement, and
discipline of children with disabilities
in LEAs. The Department further
believes that methodological alignment
across States will improve upon current
policy, which has resulted in numerous
State definitions of significant
disproportionality of varying
complexity that may be difficult for
stakeholders to understand and
interpret. The wide variation in
definitions and methodologies across
States under current policy also makes
it difficult for stakeholders to advocate
on behalf of children with disabilities,
and for researchers to examine the
extent to which LEAs have adequate
policies, practices, and procedures in
place to provide appropriate special
education and related services to
children with disabilities. We believe
that a standardized methodology will
accrue benefits to stakeholders in
reduced time and effort needed for data
analysis and a greater capacity for
meaningful advocacy. Additionally, we
believe that the standardized
methodology will accrue benefits to all
children (including children with
disabilities), by promoting greater
transparency and supporting the efforts
of all stakeholders to enact appropriate
policies, practices, and procedures that
address disproportionality on the basis
of race or ethnicity.
Requiring that States set reasonable
risk ratio thresholds, minimum n-sizes,
and minimum cell sizes based on the
advice from State Advisory Panels will
also give stakeholders an increased role
in setting State criteria for identifying
significant disproportionality. The
Department hopes that this will give
States and stakeholders an opportunity,
and an incentive, to thoughtfully
examine existing State policies and
ensure that they appropriately identify
LEAs with significant and ongoing
disparities in the identification of
children with disabilities, their
placements in particular educational
settings, and their disciplinary
removals. Further, we hope that States
will also take this opportunity to
consult with their State Advisory Panels
on the States’ approaches to reviewing
policies, practices, and procedures, to
ensure that they comply with IDEA and
have the capacity to provide appropriate
support. In addition, there is widespread
evidence on the short- and long-term
negative impacts of suspensions and
expulsions on student academic
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outcomes. In general, suspended
children are more likely to fall behind,
to become disengaged from school, and
to drop out of a school. (Lee, Cornell,
Gregory, & Xitao, 2011; Brooks, Shiraldi
& Zeidenberg, 2000; Civil Rights Project,
2000.) The use of suspensions and
expulsions is also associated with an
increased likelihood of contact with the
juvenile justice system in the year
following those disciplinary actions.
(Council of Statement Governments,
2011.)
The Department believes that
suspensions and expulsions can often
be avoided, particularly if LEAs use
appropriate school-wide interventions,
and appropriate student-level supports
and interventions, including proactive
and preventative approaches that
address the underlying causes or
behaviors and reinforce positive
behaviors. We believe that the final
regulations clarify each State’s
responsibility to implement the
statutory remedies whenever significant
disproportionality in disciplinary
removals is identified, and will prompt
States and LEAs to initiate efforts to
reduce schools’ reliance on suspensions
and expulsions as a core part of their
efforts to address significant
disproportionality. In so doing, we
believe that LEAs will increase the
number of children participating in the
general education curriculum on a
regular and sustained basis, thus
accruing benefits to children and society
through greater educational gains. Under section 613(f) of IDEA and
§ 300.226, LEAs are not authorized to
voluntarily use funds for CEIS to serve
children with disabilities or children
ages three through five. By clarifying
that comprehensive CEIS can also be
used to support children with
disabilities and children ages three
through five, the final regulations will
allow LEAs to direct resources in a more
purposeful and impactful way to
improve outcomes for those children in
subgroups that have been most affected
by significant disproportionality. For
example, LEAs would be able to use
comprehensive CEIS to expand the use
of multi-tiered systems of support,
which could help LEAs determine
whether children identified with
disabilities have access to appropriate,
targeted supports and interventions to
allow them to succeed in the general
education curriculum. Additionally, by
expanding the eligibility of children
ages three through five to receive
comprehensive CEIS, LEAs identified as
having significant disproportionality
will have additional resources to
provide high-quality early intervening
services, which research has shown can increase children’s language, cognitive,
behavioral, and physical skills, and
improve their long-term educational
outcomes. LEAs could use funds
reserved for comprehensive CEIS to
provide appropriate services and
supports at earlier ages to children who
might otherwise later be identified as
having a disability, which could reduce
the need for more extensive special
education and related services for these
children in the future.
While the Department cannot, at this
time, meaningfully quantify the
economic impacts of the benefits
outlined above, we believe that they are
substantial and outweigh the estimated
costs of these final regulations. The following section provides a
detailed analysis of the estimated costs
of implementing the requirements
contained in the new regulations.
Number of LEAs Newly Identified
In order to accurately estimate the
fiscal and budgetary impacts of these
regulations, the Department must
estimate not only the costs associated
with State compliance with these
regulations, but also the costs borne by
any LEAs that would be identified as
having significant disproportionality
under this new regulatory scheme that
would not have been identified had the
Department not regulated. However, at
this time, the Department does not
know, with a high degree of certainty,
how many LEAs will be newly
identified in future years. Given that a
large proportion of the cost estimates in
this section are driven by assumptions
regarding the number of LEAs that SEAs
might identify in any given year, these
estimates are highly sensitive to those
assumptions. In 2012–2013, the most
recent year for which data are available,
States identified 449 out of
approximately 16,000 LEAs nationwide
as having significant disproportionality.
For purposes of our estimates, the
Department used this level of
identification as a baseline, only
estimating costs for the number of LEAs
over 449 that would be identified in
future years. These regulations largely focus on
methodological issues related to the
consistency of State policies and do not
require States to identify LEAs at a
higher rate than they currently do. As
such, it is possible that these regulations
may not result in any additional LEAs
being identified as having significant
disproportionality. However, we believe
that this is unlikely and therefore would
represent an extreme lower bound
estimate of the cost of this regulation. We believe it is much more likely that
the regulation will provide States and advocates with an opportunity to make
meaningful and substantive revisions to
their current approaches to identifying
and addressing significant
disproportionality. To the extent that
States and State Advisory Panels, as part
of the shift to the new standard
methodology, establish risk ratio
thresholds, minimum n-sizes, and
minimum cell sizes that identify more
LEAs than they currently do, it is likely
that there will be an increase in the
number of LEAs identified nationwide.
We do not specifically know what risk
ratio thresholds, minimum n-sizes, and
minimum cell sizes States will set in
consultation with their State Advisory
Panels and therefore do not know the
number of LEAs that would be
identified under those new thresholds.
However, for purposes of these cost
estimates, we assume that those changes
would result in 400 additional LEAs
being identified each year nationwide.
This number represents an
approximately ninety percent increase
in the overall number of LEAs identified
by States collectively each year. The
Department assumes that changes in
State policies and procedures are one
potential and likely outcomes of these
regulations; therefore, the number of
new LEAs that may be identified is also
reflected in our cost estimates.
As noted in the Costs and Burden of
the Proposed Regulations section, the
Department does not agree with
commenters who assert that these final
regulations will result in determinations
of significant disproportionality for
nearly half the LEAs in the country.
Therefore, we have not changed the
number of LEAs identified and
corresponding costs associated with
those LEAs. The Department also
believes that changes in the final
regulations, outlined in the Minimum
Cell Sizes and Minimum N-Sizes
Section, that allow States to set
reasonable minimum n-sizes and cell
sizes within the bounds prescribed in
the preamble will likely result in far
fewer LEAs identified than some
commenters predict. To the extent that States identify
fewer than 400 additional LEAs in each
year or that the number of LEAs
identified decreases over time, the
estimates presented below are
overestimates of the actual costs. For a
discussion of the impact of this
assumption on our cost estimates, see
the Sensitivity Analysis section of this
Regulatory Impact Analysis.
General Changes in the Cost Estimates
From the NPRM
The Department has increased the
estimated cost of these regulations in
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4Unless otherwise noted, all hourly wages are
loaded wage rates and are based on median hourly
earnings as reported in the May 2014 National
Occupational Employment and Wage Estimates
from the Bureau of Labor Statistics (see
www.bls.gov/oes/current/999201.htm) multiplied
by an employer cost for employee compensation of
1.57 (see www.bls.gov/news.release/ecec.toc.htm).
response to both changes to the final
regulations and comments from the
public. The final regulations require
States to set reasonable minimum n-
sizes, minimum cell sizes, and if the
State uses the flexibility described in
§ 300.646(d)(2), standards for
determining reasonable progress in
consultation with their State Advisory
Panels, which could result in additional
burden for Federal and State level staff.
States will also have some additional
burden associated with reporting these
data to the Department. The Department
also agrees with commenters that the
NPRM likely underestimated the time
required to modify data collection
protocols, technical assistance activities,
and communication required to
implement the rule. We have therefore
increased the estimated number of
hours to better reflect the work required
to adequately implement these
regulations in a number of sections,
including the ‘‘State-level Review and
Compliance With the New Rule,’’ the
‘‘Annual Calculation of Risk Ratios and
Notification of LEAs,’’ and the ‘‘Federal
Review of State Risk Ratio Thresholds’’
sections. Finally, the Department
modified the State level cost estimates
in the NPRM because the final
regulations do not require the use of the
standard methodology when both the
LEA and the State fail to meet the
State’s minimum n-size and minimum
cell size. Therefore, in this final
estimate, the Department removed costs
associated the Bureau of Indian
Education (BIE) because BIE will not
typically have a comparison group and
mathematically cannot calculate risk
ratios for any racial or ethnic group.
This change resulted in a slight decrease
for State level costs associated with BIE.
Cost of State-Level Activities
These regulations require every State
to use a standard methodology to
determine if significant
disproportionality based on race and
ethnicity is occurring in the State and
LEAs of the State with respect to the
identification of children as children
with disabilities, the placement in
particular educational settings of these
children, and the incidence, duration,
and type of disciplinary removals from
placement, including suspensions and
expulsions. These regulations require
States to set and report to the
Department risk ratio thresholds, above
which LEAs would be identified as
having significant disproportionality,
and provide States the flexibility to: (1)
Use up to three years of data to make a
determination of significant
disproportionality; (2) set and report to
the Department reasonable minimum n- sizes and minimum cell sizes consistent
with the limitations outlined in these
regulations, and; (3) if a State uses the
flexibility described in paragraph (d)(2),
set and report standards for determining
whether LEAs have made reasonable
progress under § 300.647(d)(2) in
lowering their risk ratios or alternate
risk ratios. Finally, these regulations
clarify that LEAs must identify and
address the factors contributing to
significant disproportionality when
implementing comprehensive CEIS.
State-Level Review and Compliance
With the New Rule
The extent of the initial burden
placed on States by the regulation will
depend on the amount of staff time
required to understand the new
regulation, modify existing data
collection and calculation tools, meet
with State Advisory Panels to develop
and report to the Department risk ratio
thresholds, minimum n-sizes, minimum
cell sizes, and standards for reasonable
progress, draft and disseminate new
guidance to LEAs, and review and
update State systems that examine the
policies, practices, and procedures of
LEAs identified as having significant
disproportionality. To comply with the final regulations,
States will have to take time to review
the regulations, determine how these
regulations will affect existing State
policies, practices, and procedures, and
plan for any actions necessary to
comply with the new requirements. To
estimate the cost per State, we assume
that State employees involved in this
work would likely include a Special
Education Director ($63.04), a Database
Manager ($52.32), two Management
Analysts ($44.64), and a Lawyer
($61.66), at 16 hours each for a total
one-time cost for the 50 States, the
District of Columbia, Puerto Rico,
Guam, American Samoa, and the Virgin
Islands of $234,345.
4
Since no State currently calculates
significant disproportionality using the
exact methodology in this regulation,
each State will need to modify its data
collection tools. To estimate the cost per
State, the Department doubled the time
estimates contained in the NPRM. We
assume that State employees would
likely include a Database Manager
($52.32) and a Management Analyst
($44.64) at 32 hours each for a total one- time cost for the 50 States, the District
of Columbia, Puerto Rico, Guam,
American Samoa, and the Virgin Islands
of $170,648. While we recognize that
these costs will vary widely from State
to State, we believe that this total
represents an appropriate estimate of
the costs across all States.
States will also need to draft, issue,
and disseminate new guidance
documents to LEAs regarding these
regulatory changes, including a
discussion of any new data collection
tools or processes and revised
procedures for identifying and notifying
LEAs. We assume States would have to
communicate changes in policy and
would likely use a mixture of
teleconferences, Webinars, and
guidance documents to ensure that
LEAs understand and comply with
revised policies. To estimate the cost
per State, the Department doubled the
previous time estimates from the NPRM.
We assume that State employees would
likely include a Special Education
Director ($63.04) for 6 hours, 5
Management Analysts ($44.64) for 32
hours, 2 Administrative Assistants
($25.69) for 16 hours, a Computer
Support Specialist ($35.71) for 4 hours,
and 2 lawyers ($61.66) for 32 hours, for
a total one-time cost for the 50 States,
the District of Columbia, Puerto Rico,
Guam, American Samoa, and the Virgin
Islands of $683,748. Additionally, changes under
§ 300.646(d) require LEAs identified as
having significant disproportionality to
use funds reserved for comprehensive
CEIS to identify and address the factors
contributing to significant
disproportionality. States will have to
review their existing processes to ensure
that LEAs are provided with appropriate
support to identify these contributing
factors and use funds for comprehensive
CEIS in ways that are appropriately
targeted to address those factors. To
estimate the cost per State, we assume
that State employees involved in these
activities would likely include a Special
Education Director ($63.04) for 4 hours,
2 Management Analysts ($44.64) for 16
hours, an Administrative Assistant
($25.69) for 2 hours, and a Manager
($51.50) for 8 hours for a total one-time
cost for the 50 States, the District of
Columbia, Puerto Rico, Guam, American
Samoa, and the Virgin Islands of
$117,922. Under the new regulations, States
must also determine risk ratio
thresholds, minimum n-sizes, minimum
cell sizes, and a standard for reasonable
progress, based on the advice of
stakeholders, including State Advisory
Panels, as provided under IDEA section
612(a)(21)(D)(iii). In order to estimate
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92460 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
5Wages in this section do not reflect loaded wage
rates.
6Hourly earnings were estimated using the
annual salary for this job classification as reported
in the May 2014 National Occupational
Employment and Wage Estimates from the Bureau
of Labor Statistics (see http://www.bls.gov/oes/
current/999201.htm) divided by the number of
workdays and hours per day assuming 200
workdays and 8 hours per day. 7Hourly earnings were estimated using the
annual salary for this job classification as reported
in the May 2014 National Occupational
Employment and Wage Estimates from the Bureau
of Labor Statistics (see http://www.bls.gov/oes/
current/999201.htm) divided by the number of
work weeks and hours per week assuming 52 weeks
and 40 hours per week.
the cost of implementing these
requirements including the new
requirement that States set reasonable
minimum n-sizes and cell sizes, the
Department doubled the previous time
estimates from the NPRM. We assume
that the average State would likely
initially meet this requirement in Year
1 and revisit the thresholds and cell
sizes every five years thereafter. We
further assume that the meetings with
the State Advisory Panels would
include at least the following
representatives from the statutorily
required categories of stakeholders: One
parent of a child with disabilities; one
individual with disabilities; one teacher;
one representative of an institution of
higher education that prepares special
education and related services
personnel; one State and one local
education official, including an official
who carries out activities under subtitle
B of title VII of the McKinney-Vento
Homeless Assistance Act; one
Administrator of programs for children
with disabilities; one representative of
other State agencies involved in the
financing or delivery of related services
to children with disabilities; one
representative of private schools and
public charter schools; one
representative of a vocational,
community, or business organization
concerned with the provision of
transition services to children with
disabilities; one representative from the
State child welfare agency responsible
for foster care; and one representative
from the State juvenile and adult
corrections agencies. To estimate the
cost of participating in these meetings
for the required categories of
stakeholders, we assume that each
meeting would require 16 hours of each
participant’s time (including
preparation for and travel to and from
the meeting and the time for the meeting
itself) and use the following national
median hourly wages
5for full-time
State and local government workers
employed in these professions:
Postsecondary education administrators,
$44.28 (1 stakeholder); primary,
secondary, and special education school
teachers, $35.66
6(1 stakeholder); State
social and community service managers,
$32.86 (5 stakeholders); local social and
community service managers, $37.13 (1 stakeholder); other management
occupations, $40.22 (1 stakeholder);
elementary and secondary school
education administrator, $42.74 (1
stakeholder).
7For the opportunity cost
for the parent and individual with
disabilities, we use the average median
wage for all workers of $17.09. We also
assume that State staff would prepare
for and facilitate each meeting,
including the Special Education
Director ($63.04) for 4 hours, one State
employee in a managerial position
($51.50) for 32 hours, one Management
Analyst ($44.64) for 32 hours, and one
Administrative Assistant ($25.69) for 32
hours. Based on these participants, we
estimate that consultation with the State
Advisory Panels would have a
cumulative one-year cost of $578,988 for
the 50 States, the District of Columbia,
Puerto Rico, Guam, American Samoa,
and the Virgin Islands. New § 300.647(b)(7) will require
States to report all risk ratio thresholds,
minimum cell sizes, minimum n-sizes,
standards for measuring reasonable
progress, and the rationales for each to
the Department at a time and in a
manner determined by the Secretary. To
estimate the cost per State, we assume
that State employees would likely
include a Database Manager ($52.32) for
5 hours and a Management Analyst
($44.64) for 20 hours for an annual cost
for the 50 States, the District of
Columbia, Puerto Rico, Guam, American
Samoa, and the Virgin Islands of
$63,491.
Annual Calculation of Risk Ratios and
Notification of LEAs
In addition to the costs outlined
above, States will incur annual costs
associated with calculating risk ratios,
making determinations of significant
disproportionality, and notifying LEAs
of determinations. New § 300.647 requires every State to
annually calculate significant
disproportionality for each LEA using a
risk ratio or alternate risk ratio method
in every category of analysis (as defined
in this document) that meets the
minimum n-size and cell size
requirements, as determined by the
State. States are required to identify
LEAs above the risk ratio threshold with
significant disproportionality. When
making a determination of significant
disproportionality, States will be allowed to use up to three years of data,
and take into account whether LEAs
demonstrate reasonable progress, under
§ 300.647(d)(2), in lowering their risk
ratios or alternate risk ratios. To
estimate the annual cost per State, the
Department doubled the time estimates
included in the NPRM. In this notice of
final regulations, we assume that State
employees involved in this calculation
will include 3 Management Analysts
($44.64) for 48 hours and one
Administrative Assistant ($25.69) for 12
hours for an annual cost of $370,500 for
the 50 States, the District of Columbia,
Puerto Rico, Guam, American Samoa,
and the Virgin Islands.
After identifying LEAs with
significant disproportionality, States
would have to notify LEAs of their
determination. We assume that a State
employee in a managerial position
($51.50) would call each identified LEA
with the assistance of one
Administrative Assistant ($25.69) and
take approximately 15 minutes per LEA.
We assume 400 new LEAs will be
identified with significant
disproportionality, resulting in an
annual cost of $7,719.
Review and Revision of Policies,
Practices, and Procedures
States are required to provide for the
review and, if appropriate, revision of
policies, practices, and procedures
related to the identification, placement,
and discipline of children with
disabilities to ensure the policies,
practices, and procedures comply with
requirements of IDEA and publicly
report any revisions. We assume States
will ensure LEAs are complying with
these requirements though desk audits,
meetings or phone calls with LEAs,
analysis of data, or sampling of IEPs and
evaluations. To estimate the annual cost
at the State level, we assume that State
employees would likely include one
Special Education Director ($63.04) for
0.5 hours, one State employee in a
managerial position ($51.50) for 1 hour,
one Administrative Assistant ($25.69)
for 1 hour, and 1 Management Analyst
($44.64) for 6 hours for each LEA. We
assume 400 new LEAs are identified
with significant disproportionality each
year, the annual cost would be $150,621
for the 50 States, the District of
Columbia, Puerto Rico, Guam, American
Samoa, and the Virgin Islands. States are required to ensure that
LEAs identified with significant
disproportionality review their policies,
practices, and procedures related to the
identification, placement, and
discipline of children with disabilities
to ensure the policies, practices, and
procedures comply with requirements
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92461 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
8Hourly earnings were estimated using the
annual salary for this job classification as reported
in the May 2014 National Occupational
Employment and Wage Estimates from the Bureau
of Labor Statistics (see www.bls.gov/oes/current/
999201.htm) divided by the number of work days
and hours per day assuming 200 workdays and 8
hours per day.
9Hourly earnings were determined using the
annual salary for this job classification as reported
in the May 2014 National Occupational
Employment and Wage Estimates from the Bureau
of Labor Statistics (see www.bls.gov/oes/current/
999201.htm) divided by the number of work weeks
and hours per week assuming 52 weeks and 40
hours per week.
10This loaded hourly wage rate is based on the
hourly earnings of a GS–13 step 3 federal employee
in Washington, DC. (See: www.opm.gov/policy-
data-oversight/pay-leave/salaries-wages/salary-
tables/16Tables/html/DCB_h.aspx).
of IDEA. We assume this would require
LEAs to examine data, identify areas of
concern, visit schools, review IEPs and
evaluations, and review any other
relevant documents. To estimate the
annual cost to review policies, practices,
and procedures at the LEA level, we
assume that LEA employees would
likely include one District
Superintendent ($85.74) for 5 hours, one
local employee in a managerial position
($58.20) for 60 hours, one local Special
Education Director ($66.52) for 20
hours, two local Administrative
Assistants ($28.43) for 15 hours, four
Special Education teachers ($58.47
8) for
2 hours, and two Education
Administrators ($70.37
9) for 8 hours for
each LEA. If we assume 400 new LEAs
are identified with significant
disproportionality, the annual cost to
LEAs would be $3,079,030. After reviewing their policies,
practices, and procedures related to the
identification, placement, and
discipline of children with disabilities,
LEAs are required, if appropriate, to
revise those policies, practices, and
procedures to ensure they comply with
requirements of IDEA. We assume LEAs
will have to spend time developing a
plan to change any policies, practices,
and procedures identified in their
review based on relevant data. To
estimate the annual cost to revise
policies, practices, and procedures we
assume that LEA staff would likely
include one District Superintendent
($85.74) for 2 hours, one local employee
in a managerial position ($58.20) for 60
hours, one local Special Education
Director ($66.52) for 20 hours, and two
local Administrative Assistants ($28.43)
for 8 hours for each LEA. If we assume
half of the new LEAs identified with
significant disproportionality (200
LEAs) would need to revise their
policies, practices, and procedures the
annual cost would be $1,089,730.
Planning for and Tracking the Use of
Funds for Comprehensive CEIS
LEAs identified with significant
disproportionality are required by
statute to reserve 15 percent of their IDEA Part B funds for comprehensive
CEIS. Any LEAs fitting into this
category will also have to plan for the
use of funds reserved for comprehensive
CEIS. To estimate the annual cost of
planning for the use of IDEA Part B
funds for comprehensive CEIS, we
assume that LEA employees involved in
these activities would likely include one
District Superintendent ($85.74) for 1
hour, one local employee in a
managerial position ($58.20) for 16
hours, one local Special Education
Director ($66.52) for 4 hours, and one
local Budget Analyst ($49.97) for 24
hours for each LEA. If we assume 400
new LEAs are identified with significant
disproportionality, the annual cost
would be $992,890.
LEAs reserving IDEA Part B funds for
comprehensive CEIS will also have to
track the actual use of those funds. We
assume LEAs will have to commit staff
time to ensure they are meeting the
fiscal requirements associated with the
use of funds for comprehensive CEIS.
To estimate the annual cost of tracking
the use of funds for comprehensive
CEIS, we assume that one local Budget
Analyst ($49.97) would be required for
8 hours for each LEA. If we assume 400
new LEAs are identified with significant
disproportionality, the annual cost
would be $159,900. LEAs providing comprehensive CEIS
are also currently required to track the
number of children served under
comprehensive CEIS and the number of
children served under comprehensive
CEIS who subsequently receive special
education and related services during
the preceding two-year period. To
estimate the annual cost of tracking
children receiving services under
comprehensive CEIS, we assume that
LEA employees would likely include
one Database Manager ($50.63) for 40
hours and one local Administrative
Assistant ($28.43) for 8 hours for each
LEA. If we assume 400 new LEAs are
identified with significant
disproportionality, the annual cost
would be $901,016. States are required to annually review
each LEA’s application for a subgrant
under IDEA Part B. As noted above,
LEAs identified with significant
disproportionality are required to
reserve 15 percent of their Part B funds
for comprehensive CEIS and many
States require LEAs to reflect that
reservation as part of their application
for IDEA Part B funds. To estimate the
annual cost stemming from State
reviews of LEA applications to ensure
compliance for all newly identified
LEAs, we assume that State employees
would likely include one Management
Analyst ($44.64) and take 0.25 hours for each LEA. If we assume 400 new LEAs
are identified with significant
disproportionality, the annual cost
would be $4,464.
Federal Review of State Risk Ratio
Thresholds
Under § 300.647(b)(1)(iii), the risk
ratio thresholds, minimum n-sizes,
minimum cell sizes, and standards for
reasonable progress established by
States are subject to monitoring and
enforcement by the Department. At this
time, the Department expects that it
would conduct monitoring of all States
in the first year that States set the
thresholds, minimum n-sizes, minimum
cell sizes, and standards for reasonable
progress and then monitor the
thresholds, minimum n-sizes, minimum
cell sizes, and standards for reasonable
progress again in any year in which a
State changes these standards. To
estimate the annual cost of reviewing
risk ratio thresholds, minimum n-sizes,
minimum cell sizes, and the standards
for reasonable progress, the Department
assumes the new requirements would
increase staff time four fold. We assume
that Department staff involved in these
reviews would likely include one
management analyst at the GS–13 level
($73.95
10), and take 4 hour each for the
50 States, the District of Columbia,
Puerto Rico, Guam, American Samoa,
and the Virgin Islands. If we assume the
Department would have to review every
State in year one, 25 States in year 2, 10
States in year 3, and 5 States in each
year thereafter, the average annual cost
over the ten year time horizon would be
$3,058 at a 7 percent discount rate.
Transfers
Under IDEA, LEAs identified with
significant disproportionality are
required to reserve 15 percent of their
IDEA Part B allocation for
comprehensive CEIS. Consistent with
the Office of Management and Budget
Circular A–4, transfers are monetary
payments from one group to another
that do not affect total resources
available to society; therefore, this
reservation constitutes a transfer. Using
data collected under section 618 from
the SY 2011–2012, the Department
estimates that 15 percent of the average
LEA section 611 and section 619
subgrants will be $106,220. Assuming
400 new LEAs are identified with
significant disproportionality each year,
the total annual transfer would be
$42,488,000. It is important to note that
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92462 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
these formula funds would not be
subgranted to new entities, but rather
that the beneficiaries of these funds
would change. As noted elsewhere in
this final rule, the regulations clarify
that funds reserved for comprehensive
CEIS can be used to provide services to
children with disabilities. To the extent
that LEAs use their funds reserved for
comprehensive CEIS to provide services
to these children, the total amount of
the transfer will be lower than what is
estimated here.
Sensitivity Analysis
As noted elsewhere in the Discussion
of Costs, Benefits, and Transfers, the
estimated costs associated with this
regulation are highly sensitive to the
Department’s assumption regarding the
total number of LEAs nationwide that
States will identify in each year. For
purposes of the estimates outlined
above, the Department assumed that 400
additional LEAs above the baseline of
449 would be identified in each year. However, since we do not know how
many LEAs States will actually identify
as a result of the changes, for the
purpose of this sensitivity analysis, we
develop and present what we consider
to be reasonable upper- and lower-
bound estimates. To establish a
reasonable lower-bound, we estimate
that no additional LEAs above the
baseline number would be identified in
the out years. We believe that this
would represent an extreme lower
bound for the likely costs of this
regulation because we consider it highly
unlikely that there would be no
additional LEAs identified. As noted
above, the Department’s estimate of 400
LEAs is based on a view that at least
some, if not most, States will take
advantage of the opportunity presented
by the transition to the standard
methodology to set risk ratio thresholds
and reasonable n-size and cell size
requirements that identify more LEAs.
We believe that this assumption of 400
LEAs above baseline represents the most reasonable estimate of the likely costs
associated with these final rules. In
order to estimate an upper bound, the
Department assumes that States could
set much more aggressive thresholds or
small n-size or cell size requirements for
identifying LEAs with significant
disproportionality, ultimately
identifying an additional 1,200 LEAs
above baseline each year. As with the
estimate of 400 LEAs, it is important to
note that the regulation itself would not
require States to identify additional
LEAs. Rather, the Department is
attempting to estimate a range of
potential State-level responses to the
regulation, including making proactive
decisions to shift State policies related
to identification of LEAs. In the table
below, we show the impact of these
varying assumptions regarding the
number of additional LEAs identified on
the estimated costs. Costs and transfers
outlined in this table are calculated at
a three percent discount rate.
TABLE 2—S ENSITIVITY OF COST ESTIMATES TO NUMBER OF ADDITIONAL LEA SASSUMED TOBEIDENTIFIED
Category
Costs
0 LEAs 400 LEAs 1,200 LEAs
State-level review and compliance with the new rule (modifying data col
lection tools, meeting with State Advisory Panels, drafting and issuing guidance to LEAs, repor
ting data) ............. $3,362,902 $3,362,902 $3,362,902
Annual calculation of risk ratios and notification of LEAs ........................................................... 4,821,062 4,921,510 5,122,405 Review and, if necessary, revision of policies, practices, and procedure
s ................................0 56,312,177 168,722,536 Planning for and tracking the use of funds for comprehensive CEIS ......................................... 0 26,782,849 80,348,546
Category Transfers
Reservation of funds for comprehensive CEIS ........................................................................
... 0 552,867,164 1,658,601,491
Paperwork Reduction Act of 1995
This final rule contains information
collection requirements that are
approved by OMB under OMB control
number 1820–0689. It also contains a
new regulatory requirement, in
§ 300.647(b)(7), that implicates the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520) (PRA). We will meet
all applicable PRA requirements before
we collect any information pursuant to
the new requirement.
Intergovernmental Review
This program is subject to Executive
Order 12372 and the regulations in 34
CFR part 79. One of the objectives of the
Executive Order is to foster an
intergovernmental partnership and a
strengthened federalism. The Executive
Order relies on processes developed by
State and local governments for
coordination and review of proposed
Federal financial assistance. This document provides early
notification of the Department’s specific
plans and actions for this program. Assessment of Educational Impact
In the NPRM we requested comments
on whether the proposed regulations
would require transmission of
information that any other agency or
authority of the United States gathers or
makes available. Based on the response to the NPRM
and on our review, we have determined
that these final regulations do not
require transmission of information that
any other agency or authority of the
United States gathers or makes
available. Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format (e.g., braille, large
print, audiotape, or compact disc) on
request to the program contact person
listed under
FOR FURTHER INFORMATION CONTACT .
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is available via the Federal Digital System
at:
www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
List of Subjects in 34 CFR Part 300
Administrative practice and
procedure, Education of individuals
with disabilities, Elementary and
secondary education, Equal educational
opportunity, Grant programs—
education, Privacy, Private schools,
Reporting and recordkeeping
requirements.
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92463 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
Dated: December 12, 2016.
John B. King, Jr.,
Secretary of Education.
For the reasons discussed in the
preamble, the Secretary of Education
amends title 34 of the Code of Federal
Regulations as follows:
PART 300—ASSISTANCE TO STATES
FOR THE EDUCATION OF CHILDREN
WITH DISABILITIES
■1. The authority citation for part 300
continues to read as follows:
Authority: 20 U.S.C. 1221e–3, 1406, 1411–
1419, 3474, unless otherwise noted.
■2. Section 300.646 is revised to read
as follows:
§ 300.646 Disproportionality.
(a) General. Each State that receives
assistance under Part B of the Act, and
the Secretary of the Interior, must
provide for the collection and
examination of data to determine if
significant disproportionality based on
race and ethnicity is occurring in the
State and the LEAs of the State with
respect to— (1) The identification of children as
children with disabilities, including the
identification of children as children
with disabilities in accordance with a
particular impairment described in
section 602(3) of the Act; (2) The placement in particular
educational settings of these children;
and (3) The incidence, duration, and type
of disciplinary removals from
placement, including suspensions and
expulsions. (b) Methodology. The State must
apply the methods in § 300.647 to
determine if significant
disproportionality based on race and
ethnicity is occurring in the State and
the LEAs of the State under paragraph
(a) of this section. (c) Review and revision of policies,
practices, and procedures. In the case of
a determination of significant
disproportionality with respect to the
identification of children as children
with disabilities or the placement in
particular educational settings,
including disciplinary removals of such
children, in accordance with paragraphs
(a) and (b) of this section, the State or
the Secretary of the Interior must— (1) Provide for the annual review and,
if appropriate, revision of the policies,
practices, and procedures used in
identification or placement in particular
education settings, including
disciplinary removals, to ensure that the
policies, practices, and procedures
comply with the requirements of the
Act. (2) Require the LEA to publicly report
on the revision of policies, practices,
and procedures described under
paragraph (c)(1) of this section
consistent with the requirements of the
Family Educational Rights and Privacy
Act, its implementing regulations in 34
CFR part 99, and Section 618(b)(1) of
the Act. (d) Comprehensive coordinated early
intervening services. Except as provided
in paragraph (e) of this section, the State
or the Secretary of the Interior shall
require any LEA identified under
paragraphs (a) and (b) of this section to
reserve the maximum amount of funds
under section 613(f) of the Act to
provide comprehensive coordinated
early intervening services to address
factors contributing to the significant
disproportionality. (1) In implementing comprehensive
coordinated early intervening services
an LEA— (i) May carry out activities that
include professional development and
educational and behavioral evaluations,
services, and supports. (ii) Must identify and address the
factors contributing to the significant
disproportionality, which may include,
among other identified factors, a lack of
access to scientifically based
instruction; economic, cultural, or
linguistic barriers to appropriate
identification or placement in particular
educational settings; inappropriate use
of disciplinary removals; lack of access
to appropriate diagnostic screenings;
differences in academic achievement
levels; and policies, practices, or
procedures that contribute to the
significant disproportionality. (iii) Must address a policy, practice,
or procedure it identifies as contributing
to the significant disproportionality,
including a policy, practice or
procedure that results in a failure to
identify, or the inappropriate
identification of, a racial or ethnic group
(or groups). (2) An LEA may use funds reserved
for comprehensive coordinated early
intervening services to serve children
from age 3 through grade 12,
particularly, but not exclusively,
children in those groups that were
significantly overidentified under
paragraph (a) or (b) of this section,
including— (i) Children who are not currently
identified as needing special education
or related services but who need
additional academic and behavioral
support to succeed in a general
education environment; and (ii) Children with disabilities.
(3) An LEA may not limit the
provision of comprehensive coordinated early intervening services under this
paragraph to children with disabilities.
(e) Exception to comprehensive
coordinated early intervening services.
The State or the Secretary of the Interior
shall not require any LEA that serves
only children with disabilities
identified under paragraphs (a) and (b)
of this section to reserve funds to
provide comprehensive coordinated
early intervening services. (f) Rule of construction. Nothing in
this section authorizes a State or an LEA
to develop or implement policies,
practices, or procedures that result in
actions that violate the requirements of
this part, including requirements related
to child find and ensuring that a free
appropriate public education is
available to all eligible children with
disabilities.
(Authority: 20 U.S.C. 1413(f); 20 U.S.C.
1418(d))
■3. Section 300.647 is added to read as
follows:
§ 300.647 Determining significant
disproportionality.
(a) Definitions. (1) Alternate risk ratio
is a calculation performed by dividing
the risk of a particular outcome for
children in one racial or ethnic group
within an LEA by the risk of that
outcome for children in all other racial
or ethnic groups in the State. (2) Comparison group consists of the
children in all other racial or ethnic
groups within an LEA or within the
State, when reviewing a particular racial
or ethnic group within an LEA for
significant disproportionality. (3) Minimum cell size is the minimum
number of children experiencing a
particular outcome, to be used as the
numerator when calculating either the
risk for a particular racial or ethnic
group or the risk for children in all other
racial or ethnic groups. (4) Minimum n-size is the minimum
number of children enrolled in an LEA
with respect to identification, and the
minimum number of children with
disabilities enrolled in an LEA with
respect to placement and discipline, to
be used as the denominator when
calculating either the risk for a
particular racial or ethnic group or the
risk for children in all other racial or
ethnic groups. (5) Risk is the likelihood of a
particular outcome (identification,
placement, or disciplinary removal) for
a specified racial or ethnic group (or
groups), calculated by dividing the
number of children from a specified
racial or ethnic group (or groups)
experiencing that outcome by the total
number of children from that racial or
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92464 Federal Register/ Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
ethnic group or groups enrolled in the
LEA.
(6) Risk ratio is a calculation
performed by dividing the risk of a
particular outcome for children in one
racial or ethnic group within an LEA by
the risk for children in all other racial
and ethnic groups within the LEA. (7) Risk ratio threshold is a threshold,
determined by the State, over which
disproportionality based on race or
ethnicity is significant under
§ 300.646(a) and (b). (b) Significant disproportionality
determinations. In determining whether
significant disproportionality exists in a
State or LEA under § 300.646(a) and
(b)— (1)(i) The State must set a:
(A) Reasonable risk ratio threshold;
(B) Reasonable minimum cell size;
(C) Reasonable minimum n-size; and
(D) Standard for measuring reasonable
progress if a State uses the flexibility
described in paragraph (d)(2) of this
section. (ii) The State may, but is not required
to, set the standards set forth in
paragraph (b)(1)(i) of this section at
different levels for each of the categories
described in paragraphs (b)(3) and (4) of
this section. (iii) The standards set forth in
paragraph (b)(1)(i) of this section: (A) Must be based on advice from
stakeholders, including State Advisory
Panels, as provided under section
612(a)(21)(D)(iii) of the Act; and (B) Are subject to monitoring and
enforcement for reasonableness by the
Secretary consistent with section 616 of
the Act. (iv) When monitoring for
reasonableness under paragraph
(b)(1)(iii)(B) of this section, the
Department finds that the following are
presumptively reasonable: (A) A minimum cell size under
paragraph (b)(1)(i)(B) of this section no
greater than 10; and (B) A minimum n-size under
paragraph (b)(1)(i)(C) of this section no
greater than 30. (2) The State must apply the risk ratio
threshold or thresholds determined in
paragraph (b)(1) of this section to risk
ratios or alternate risk ratios, as
appropriate, in each category described
in paragraphs (b)(3) and (4) of this
section and the following racial and
ethnic groups: (i) Hispanic/Latino of any race; and,
for individuals who are non-Hispanic/
Latino only; (ii) American Indian or Alaska Native;
(iii) Asian; (iv) Black or African American;
(v) Native Hawaiian or Other Pacific
Islander; (vi) White; and
(vii) Two or more races.
(3) Except as provided in paragraphs
(b)(5) and (c) of this section, the State
must calculate the risk ratio for each
LEA, for each racial and ethnic group in
paragraph (b)(2) of this section with
respect to: (i) The identification of children ages
3 through 21 as children with
disabilities; and (ii) The identification of children ages
3 through 21 as children with the
following impairments: (A) Intellectual disabilities;
(B) Specific learning disabilities;
(C) Emotional disturbance;
(D) Speech or language impairments;
(E) Other health impairments; and
(F) Autism.
(4) Except as provided in paragraphs
(b)(5) and (c) of this section, the State
must calculate the risk ratio for each
LEA, for each racial and ethnic group in
paragraph (b)(2) of this section with
respect to the following placements into
particular educational settings,
including disciplinary removals: (i) For children with disabilities ages
6 through 21, inside a regular class less
than 40 percent of the day; (ii) For children with disabilities ages
6 through 21, inside separate schools
and residential facilities, not including
homebound or hospital settings,
correctional facilities, or private
schools; (iii) For children with disabilities ages
3 through 21, out-of-school suspensions
and expulsions of 10 days or fewer; (iv) For children with disabilities ages
3 through 21, out-of-school suspensions
and expulsions of more than 10 days; (v) For children with disabilities ages
3 through 21, in-school suspensions of
10 days or fewer; (vi) For children with disabilities ages
3 through 21, in-school suspensions of
more than 10 days; and (vii) For children with disabilities
ages 3 through 21, disciplinary removals
in total, including in-school and out-of-
school suspensions, expulsions,
removals by school personnel to an
interim alternative education setting,
and removals by a hearing officer. (5) The State must calculate an
alternate risk ratio with respect to the
categories described in paragraphs (b)(3)
and (4) of this section if the comparison
group in the LEA does not meet the
minimum cell size or the minimum n-
size. (6) Except as provided in paragraph
(d) of this section, the State must
identify as having significant
disproportionality based on race or
ethnicity under § 300.646(a) and (b) any
LEA that has a risk ratio or alternate risk
ratio for any racial or ethnic group in
any of the categories described in
paragraphs (b)(3) and (4) of this section
that exceeds the risk ratio threshold set
by the State for that category.
(7) The State must report all risk ratio
thresholds, minimum cell sizes,
minimum n-sizes, and standards for
measuring reasonable progress selected
under paragraphs (b)(1)(i)(A) through
(D) of this section, and the rationales for
each, to the Department at a time and in
a manner determined by the Secretary.
Rationales for minimum cell sizes and
minimum n-sizes not presumptively
reasonable under paragraph (b)(1)(iv) of
this section must include a detailed
explanation of why the numbers chosen
are reasonable and how they ensure that
the State is appropriately analyzing and
identifying LEAs with significant
disparities, based on race and ethnicity,
in the identification, placement, or
discipline of children with disabilities.
(c) Exception. A State is not required
to calculate a risk ratio or alternate risk
ratio, as outlined in paragraphs (b)(3),
(4), and (5) of this section, to determine
significant disproportionality if:
(1) The particular racial or ethnic
group being analyzed does not meet the
minimum cell size or minimum n-size;
or
(2) In calculating the alternate risk
ratio under paragraph (b)(5) of this
section, the comparison group in the
State does not meet the minimum cell
size or minimum n-size.
(d) Flexibility. A State is not required
to identify an LEA as having significant
disproportionality based on race or
ethnicity under § 300.646(a) and (b)
until—
(1) The LEA has exceeded a risk ratio
threshold set by the State for a racial or
ethnic group in a category described in
paragraph (b)(3) or (4) of this section for
up to three prior consecutive years
preceding the identification; and
(2) The LEA has exceeded the risk
ratio threshold and has failed to
demonstrate reasonable progress, as
determined by the State, in lowering the
risk ratio or alternate risk ratio for the
group and category in each of the two
prior consecutive years.
(Authority: 20 U.S.C. 1418(d).)
[FR Doc. 2016–30190 Filed 12–16–16; 8:45 am]
BILLING CODE 4000–01–P
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**On May 22, 2019, the Office of Special Education and Rehabilitative Services posted the following to the department’s site:
- On May 6, 2019, the Department of Justice filed a Notice of Appeal in COPAA v. DeVos. The filing of this Notice of Appeal does not stay the district court order or alter the fact that the December 19, 2016 Equity in IDEA regulation on significant disproportionality is currently in effect.
** On May 20, 2019, the Office of Special Education and Rehabilitative Services posted the following to the department’s site:
- Pursuant to the plain language of the December 19, 2016 Equity in IDEA regulation on significant disproportionality, and in conjunction with the March 7, 2019 decision in COPAA v. Devos, the department expects states to calculate significant disproportionality for the 2018–2019 school year using the 2016 rule’s standard methodology, or to recalculate using the 2016 rule’s standard methodology if a different methodology has already been used for this school year.
** The department postponed the compliance date of this regulation from July 1, 2018 to July 1, 2020 through 83 FR 31306 published July 3, 2018. The regulation also postpones the compliance date for including children ages three through five in significant disproportionality analysis from July 1, 2020 to July 1, 2022. **
Changes effective Jan. 18, 2017
- Final regulations under Part B of the Individuals with Disabilities Education Act governing the Assistance to States for the Education of Children with Disabilities program and the Preschool Grants for Children with Disabilities program
These changes:
- Establish a standard methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its local educational agencies (LEAs);
- Clarify that states must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities;
- Clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found; and
- Require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services (comprehensive CEIS) and allow these services for children from age 3 through grade 12, with and without disabilities.
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