Special Education

The U.S. Department of Education on Feb. 20 released four new resources to help students with disabilities, their families and schools understand the civil rights protections guaranteed to students with asthma, diabetes, food allergies, and gastroesophageal reflux disease (GERD) or gastroesophageal reflux (GER).

The resources explain how these medical conditions can impact a student's school experience, how the conditions could require protections for students under Section 504 of the Rehabilitation Act of 1973, and the options for parents and students if they believe schools aren't meeting their federal legal obligations. 

Additionally, the Education Department shared updated statistics showing there were 8.4 million students with disabilities who comprised 17% of the nation's pre-K-12 student population in 2020-21. About 3%, or 1.6 million, of the total student population were students with disabilities who received supports and services under only Section 504 that school year.

The documents remind K-12 schools and colleges of their federal legal responsibilities to provide accommodations, if needed, to students with these common medical conditions. For example, one of the resources noted that students with asthma may need to be excused from activities that risk triggering an asthma attack. If schools have not made this accommodation, they might have to correct student records regarding unexcused absences. 

Section 504 prohibits discrimination against students with disabilities by schools that get federal funding, which includes almost all public K-12 schools and universities in addition to private higher education institutions.

At the higher education level, students with disabilities accounted for 21% of undergraduates and 11% of post baccalaureate students during the 2019-20 school year, according to the Education Department’s National Center for Education Statistics.

“We issued these new resources to give students, including those with asthma, diabetes, food allergies, and GERD, as well as their families and schools, important tools to understand when and how they are protected by federal disability rights laws,” said Assistant Secretary for Civil Rights Catherine Lhamon, in a statement.

Updated statistics from the Education Department's Civil Rights Data Collection show ongoing disproportionate rates of discipline against students with disabilities. For example, while students with disabilities served under the Individuals with Disabilities Education Act represented 14% of the overall student population in 2020-21, they accounted for 81% of the students physically restrained, 75% of students secluded, and 24% of students receiving out of school suspensions that school year.

The Education Department is currently drafting proposed regulations for Section 504 that would be the first major update to the rules since 1977. Educators, parents and advocates have said they hope the proposed rules will clarify how student accommodations provided by schools under that law align or depart from the rights of students with disabilities under IDEA.

Updated rules are needed, the Education Department has said, to align with the Biden administration's goal of advancing equity for persons with disabilities. The department also wants to address barriers to access in schools for students with disabilities and update outdated language in the current regulations. 

The proposed rules were originally expected to be released by May 2023 and then by November 2023. Even after several delays, however, the proposed rules still aren't ready.

Schools must consider whether all students with disabilities could benefit from assistive technology, and they cannot deny tools and services due to costs, according to a new U.S. Department of Education resource aimed at quelling myths about assistive technology. 

The document and an accompanying Dear Colleague letter are targeted toward a wide audience, including parents, early intervention service providers, special and general educators, and school administrators. The Education Department also provided examples of how assistive technology can help students with disabilities access learning.

Assistive technology can increase students' opportunities for learning, social interactions and career and college readiness, the Education Department and disability experts said. While often electronic and digital, the tools can also include low-tech items like pencil grips, squishy balls and visual calendars.

“It is imperative that we continue to embrace the transformative power of assistive technology," said Jacqueline Rodriguez, CEO of the National Center for Learning Disabilities, a nonprofit that supports children and young adults with learning and attention challenges, in a statement to K-12 Dive. 

Rodriguez said the key lies in considering tools and services when developing individualized services for infants, toddlers and schoolchildren, as well as providing vivid examples of how tools can break down barriers and contribute to a more equitable educational system. 

"In embracing AT, we collectively contribute to dismantling obstacles and creating a learning environment that is truly inclusive,” Rodriguez said.

Determining whether a student needs assistive technology and services is done at the local level for every student with disabilities. The Education Department recommends that individualized family service plan teams for infants and toddlers and individualized education program teams for school-aged children understand how to procure, implement and evaluate the technology.

Additionally, the Education Department reminded districts they are responsible for ensuring students, families and educators know how assistive technology works. Students' IEP teams should consider how it will be integrated with other therapies and interventions. If teams determine that a student needs assistive technology services, those supports must be stated in their IEP so teachers and related service providers can comply.

In Virginia's Fairfax County Public Schools, for example, each school has an assistive technology coach who works with school teams to provide tools and supports to students, as well as ongoing help to students and teachers, according to the district's website.

But in many cases, "the AT consideration is either skimmed over or skipped entirely due to biases, assumptions or lack of knowledge about various AT devices and services that support and increase a child's access to the general curriculum in their classroom," said Denise Marshall, CEO of the Council of Parent Attorneys and Advocates, a nonprofit that works to protect the civil rights of children with disabilities, in a statement.

The Education Department's clarification that training must be provided to the child, their teacher and the family where needed is valuable, Marshall said.

The guidance also offered examples of types of assistive technology.

For infants and toddlers: 

• Tactile books that can be felt and experienced for those with sensory issues.
• Helmets, cushions, adapted seating and standing aids to support children with reduced mobility.
• Augmentative and alternative communication devices, such as tablets or objects, that can help very young children express their wants and needs.

For school-aged children:

• "Any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability."
• Screen readers, adapted daily living devices like a toothbrush holder, communication boards, modified scissors, calculator, digital recorder and voice recognition software.

Additionally, the Education Department clarified that assistive technology is not the same as accessible technology. Accessible technology can be used to help many different users or have built-in features for individualized supports. Assistive technology is selected to help a student perform a specific task.

National trends in special education dispute resolution for the 2021-22 school year show a return to pre-pandemic activity, according to data reported by the Center for Appropriate Dispute Resolution in Special Education, or CADRE, a federal technical assistance center that supports state and local efforts to prevent and resolve disputes between school systems and families of students with disabilities. 

Data from the 2020-21 school year — when many school districts were in virtual or hybrid mode — did not align with previous years' trends. For example, national data, excluding New York state, showed the number of due process complaints filed dropped 29% during the pandemic 2020-21 school year, according to CADRE.

Promising trends from the 2021-22 school year data include an increase in mediation requests and agreements reached at that voluntary stage, as well as a higher rate of agreements made during mandatory resolution periods, CADRE said.

Early dispute resolution approaches, such as voluntary mediation, can cut down on more adversarial and costly avenues to address school-family disagreements, CADRE said. Plus, since mediation can result in two parties reaching their own agreement — rather than a hearing officer or another third party making a decision — there's typically a higher rate of compliance with mediation agreements, according to CADRE.

The organization was encouraged to see the overall increase in mediation requests and expects this to be "the beginning of an upward trend," said Melanie Reese, director of CADRE, in an email.

Regarding more formal dispute resolution approaches, CADRE reports 11,290 due process complaints filed in 2021-22, where parents present their case to an administrative hearing officer. That is slightly less than the previous 10-year average. 

But that number excludes data from New York state, which CADRE called a "significant outlier." When including New York in the total due process complaints filed, the number jumps to 29,490 for 2021-22. That calculates to a 198% increase in filings over the previous 10-year period. 

More detailed data for New York is only updated through the 2020-21 school year. However, the statistics for that state show an increasing rate of due process complaints filed starting with the 2015-16 school year. The number of resolution meetings held in New York has also increased during that same time frame. 

CADRE is planning to release a national longitudinal database in the next few weeks that will allow for state-to-state comparisons of dispute resolution data from 2004 to the most current reporting year.

Written state complaints, which involve a state-led investigation into a concern brought forward by anyone, showed a 47% increase in 2021-22 over the previous year after remaining relatively steady between the 2011-12 and 2019-2020 school years. 

"The increase in state complaints and due process complaints did not come as a surprise based on what we’ve been hearing from the state agencies and parent centers for the past couple of years," Reese said. 

She added that the trend may be evidence of successful efforts to inform families of their dispute resolution rights under the Individuals with Disabilities Education Act. "There are certainly situations where due process or state complaints are the most appropriate options to address a dispute. However, the costs associated with the more adversarial options must be considered," Reese said.

A September 2023 report from the Council of Parent Attorneys and Advocates said the written state complaint process was flawed with some states having more favorable results for school systems. COPPA's report said that about 40% of complaints in 2019-20 resulted in findings of noncompliance against education agencies.

CADRE's report on the 2021-22 school year shows the number of written state complaint reports issued with findings of noncompliance at 55.6%, down from a 10-year average of 62.8%.

States and districts are taking steps to ensure that "informal removals," in which school days are shortened to address behavior issues for students with disabilities, do not violate civil and educational rights.

New state and local resources, including from Oregon, Illinois and Chicago Public Schools, have come in the wake of 18-month-old discipline guidance from the U.S. Department of Education. That guidance raised the concern that frequent short-term removals of students with disabilities by administrators and staff could indicate a school is not following procedures under the Individuals with Disabilities Education Act.  

Although informal removals are not defined under IDEA or in its regulations, disability rights advocates have raised alarms about the practice being overused as a way to sidestep IDEA discipline due process for students with disabilities. 

Those procedures include extra protections for students with disabilities who are disciplined, such as the right to receive special education services if they are removed from school for more than 10 days. The rules also require a district to review whether disruptive behavior is related to a student's disability.

A January 2022 report from the National Disability Rights Network, an organization that advocates for people with disabilities, said it's difficult to know how many informal removals are taking place because these "off the books" removals are not included in reports to the public. 

The group estimates informal removals occur "hundreds and perhaps thousands of times per year." NDRN, which is also a membership organization for the federally mandated Protection and Advocacy Systems that provide legal representation and advocacy services for people with disabilities, said an informal poll of P&As in 2021 found that repeated and shortened school days to be one of their most common areas of focus concerning school discipline. 

"Informal removals not only hurt children academically and emotionally, but also harm their families, communities, and society at large," the NDRN report said.

Autism Speaks, an organization that promotes the inclusion of individuals with autism, is also concerned about the negative impacts of informal removals, said CEO and President Keith Wargo.

Informal removals present "a clear impediment" to learning opportunities for students with disabilities, Wargo said.

Under the radar

Some of the updated guidance from states and districts also appears to be in response to a 2023 blog series on discipline and behavior written by Valerie Williams, director of the Education Department's Office of Special Education Programs. 

In a Feb. 22, 2023, post, Williams said she had spoken with parents who have had to leave work and go to their child's school to help calm them down. Sometimes in those cases, parents were told to take their child home, Williams said.

"These removals often go uncounted, are not reported as suspensions, and fly under-the-radar built to ensure that the Individuals with Disabilities Education Act’s (IDEA’s) discipline protections are exercised," Williams wrote. 

The Council of Administrators of Special Education has — in the past and currently — advised special education leaders to follow IDEA's provisions to record school removals for behavior the same as they do for discipline removals, according to Phyllis Wolfram, executive director of the organization of special education administration professionals. 

That ensures accountability for administrators and due process protections for students. It can also draw attention to opportunities for behavior interventions and supports, Wolfram said.

"W​hen you're looking at your data, you should be asking the following questions, 'Are we seeing some consistent removals? Are we seeing some patterns of removals? How do we program differently for the student? How do we program differently so that we can keep the student in school?'" Wolfram said. 

CASE — and the Education Department — note that, in general, a school day for a student with a disability should be the same length as a school day for a child without disabilities. But if a student's individualized education program team, which includes the student's parent, determines a student needs a longer or shorter school day to receive services under IDEA, then the IEP can be updated to reflect that change.

Wolfram also noted that special education administrators nationally are seeing a greater need for school-based mental health supports for students, but a lack of available providers and resources.

“This is the area where we need to be more impactful. We must work harder to collaborate with the behavioral healthcare facilities in our communities to assist in meeting the needs of our students and their families,” Wolfram said.

A proposed U.S. Department of Education rule intended to streamline the process of obtaining parental consent for Medicaid school-based health services has garnered about 9,700 comments — both from supporters saying the change could help expand health services and those in opposition who said it would limit parents' rights. 

The proposed rule, issued in May, is recommending a rare amendment under the Individuals with Disabilities Education Act, which guarantees supports for students with disabilities for learning and related services. No other parental consent procedure under IDEA would be impacted.

Reimbursements for the cost of school-based Medicaid services are the third or fourth largest revenue source for schools. However, the current parental consent process puts additional paperwork burdens on staff, and many parent consent forms remain incomplete, school administrative groups said. 

The proposed rule specifically seeks to eliminate an IDEA provision that requires one-time parental consent before schools file first-time invoices for school-based specialized services for children eligible for public benefits under Medicaid, the Children’s Health Insurance Program, or other public insurance and benefits programs.

Many children with disabilities eligible for IDEA are also enrolled in Medicaid due to their disability status or based on their family income. Children with disabilities and special healthcare needs are more likely to be low-income, and those covered by Medicaid are more likely to have greater healthcare needs than those covered by private insurance, the proposed rule said.

School-based Medicaid-eligible services for students with disabilities, for example, could include speech therapy and physical and mental supports. The proposed rule said both students with disabilities who are eligible for public insurance benefits and those who aren’t will continue to receive their free individualized education program services regardless of a school’s costs for the services or access to reimbursement.

Additionally, a school's parent consent form must include that the Medicaid billing for school-based services would not impact lifetime coverage or any other insured benefits.

If the proposed rule is finalized, parents would still give their consent for Medicaid providers, including schools, to access public benefits for billing purposes when enrolling a child or themselves in Medicaid.

But because parents are currently asked to provide consent at both these points, it leads to confusion, said Jenny Millward, executive director of the National Alliance for Medicaid in Education, or NAME.

"We find that parents are just so confused about the duplicity of this requirement," Millward said. Although NAME works as a neutral organization that focuses on providing Medicaid-related resources to schools, it was one of the co-signing organizations in a letter of support, led by the Council of Administrators of Special Education, for the proposed rules. 

A 2022 survey of school district leaders and Medicaid administrators found that a third of survey respondents said 26% to 50% of their Medicaid parental consent forms are not complete.

"We do strongly feel that this is a move towards improving and enhancing the access that children will have to receiving services, because we all know that kids are six times more likely to receive services when they can access them at school," Millward said.

Some commenters, however, voiced concern that the change would expand school-based health centers, bypass parental consent outreach, or negatively impact public insurance benefits.

The American Speech-Language-Hearing Association, in a letter, said that while the professional organization appreciates the Education Department's focus in this area, it finds the proposed rule "problematic" because it could inadvertently impact services students may receive outside of the school setting.

"Allowing a school district to unilaterally authorize billing for Medicaid without full knowledge of the child’s complementary needs outside of a school setting will negatively impact a child’s ability to receive the highest quality comprehensive services possible," the letter said.

The Education Department is planning to release a final rule in January. When the Education Department issued the proposed rule, it also released long-awaited guidance for school-based Medicaid services and billing.

Meanwhile, a tracker from the Kaiser Family Foundation shows that between this spring and Dec. 13, 2023, at least 2.4 million children had been disenrolled from Medicaid out of 6.2 million total disenrollments in the 21 states reporting age breakouts. KKF said data is limited but estimates that children account for four in 10 Medicaid disenrollments. The foundation also said a majority of disenrollments were due to procedural reasons. 

This Medicaid "unwinding" comes as public insurance programs transition from pandemic-era automatic renewals. The Centers for Medicare and Medicaid Services released a toolkit for schools to help families retain their benefits. The toolkit, for example, encourages schools to send communications to parents urging them to update their contact information with their state Medicaid and CHIP program and respond to renewal notices.

The federal process for approving state waiver requests to exceed a 1% cap on the number of students with significant cognitive disabilities who take alternate assessments is generally appropriate, according to an Office of Inspector General report released Dec. 6. 

The U.S. Department of Education's Office of Elementary and Secondary Education, however, has room for improvement. OIG recommends that OESE develop and implement written guidance and review procedures for staff involved in reviewing and approving waiver and waiver extension requests. Those efforts could bring "greater consistency and less subjectivity" to the process, OIG said.

OIG's recent inspection examined the waiver process for the 2021-22 school year and only focused on the waiver review process. It did not review OESE’s responses to states seeking waivers.

The Every Student Succeeds Act requires that all students participate in statewide testing. States can allow students with significant cognitive disabilities to participate in alternate assessments based on alternate academic achievement standards. The alternate academic achievement standards are reduced in complexity and depth compared to general achievement standards. 

States must limit the number of students participating in alternate assessments to no more than 1% of the total number of students in the state who are assessed in each subject tested. Students' individualized education program teams, however, are the decision-makers when it comes to what tests students with disabilities will take.

By design, the cap aims to prevent the over-assignment of students with disabilities to the alternate assessment. Students who take alternate assessments may be limited in post-school activities. 

ESSA regulations state that students who take the alternate assessment may not be prohibited from attempting to complete the requirements for a regular high school diploma. Parents must also be informed of how participation may delay or otherwise affect the student from completing the requirements for a regular high school diploma.

States that exceed the cap can have conditions placed on their Title I, Part A grant for educational programs for students from low-income families.

According to a Sept. 20 letter sent to states by OESE and the Office of Special Education Programs, the national alternate assessment participation rate has been decreasing since the 2016-17 school year. That year the reading and math participation rates were both 1.18%. By 2021-22, the alternate assessment participation rate declined to 1.07% for reading and dipped to 1.06% for math.

Plans for compliance

During the 2022-23 school year, the Education Department approved nine states for waivers or waiver extensions and denied 14 states' requests, according to a tally from The Advocacy Institute, a nonprofit that works to support people with disabilities. Reasons for waiver denials included failure to reduce participation rates in previous years and a state's inability to test at least 95% of all students and 95% of students with disabilities, as required.

Candace Cortiella, director and founder of The Advocacy Institute, said in an email she's disappointed that OIG's report had a narrow scope and relied on outdated information. The Advocacy Institute has been tracking waiver activity by state for seven years.

Cortiella would like to draw attention to OESE's practice of calling on states that do not have waivers and have exceeded the 1% cap to create plans to become compliant. The plans, Cortiella said, have no requirements attached to them unlike the formal waiver and waiver extension process, such as soliciting public comment and addressing disproportionality.

"I don't know where OESE finds the authority to do this instead of informing these states that they need to submit waiver requests," Cortiella said in an email. 

On Oct. 27, OESE sent separate letters to 15 states affirming each state's over-the-cap participation rate during the 2021-22 school year, while noting certain states’ progress on reducing alternate assessment participation. 

Some states barely pushed past the 1% cap, such as Vermont's 1.01% participation rate for reading/language arts alternate assessments. 

"If the State continues to have an AA-AAAS [alternate assessment based on alternate academic achievement standards] participation rate over 1.0 percent in future years, the Department may take additional action," said OESE's letter to the Vermont Agency of Education.

Pennsylvania's letter shows the state exceeded the participation cap for reading/language arts (1.97%), math (2.06%) and science (2.19%). Because the participation rates for all three subject areas are "substantially higher" than 1%, the state's Title I, Part A grant was placed on "high-risk" status, the letter said.

OESE's letters added that the office recognizes the 1% participation cap was a new requirement starting in the 2017-18 school year, and that most states previously exceeded 1% of students tested using an alternate assessment. 

The office also said that the COVID-19 pandemic impacted state efforts to reduce participation rates in the 2019-20 and 2020-21 school years. All states were allowed assessment waivers for the 2019-20 school year due to pandemic hardships.

To further support state assessment efforts, OESE hosted a conference session on the topic in September and has posted materials from that session, including federal guidance on the 1% cap and other resources.