Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 10967-10998 [2016-03938]

Download as PDF Vol. 81 Wednesday, No. 41 March 2, 2016 Part II Department of Education mstockstill on DSK4VPTVN1PROD with PROPOSALS2 34 CFR Part 300 Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities; Proposed Rules VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\02MRP2.SGM 02MRP2 10968 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules 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 Office of Special Education and Rehabilitative Services, Department of Education. ACTION: Notice of proposed rulemaking. AGENCY: The Secretary proposes to amend 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 in IDEA, the regulations would 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 such services for children from age 3 through grade 12, with and without disabilities. DATES: We must receive your comments on or before May 16, 2016. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments. If you are submitting comments electronically, we strongly encourage you to submit any comments or mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), we strongly encourage you to convert the PDF to print-to-PDF format or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a printto-PDF format allows the U.S. Department of Education (the Department) to electronically search and copy certain portions of your submissions. • Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for finding a rule on the site and submitting comments, is available on the site under ‘‘How to use Regulations.gov’’ in the Help section. • Postal Mail, Commercial Delivery, or Hand Delivery: The Department strongly encourages commenters to submit their comments electronically. However, if you mail or deliver your comments about these proposed regulations, address them to Kristen Harper, U.S. Department of Education, 550 12th Street SW., Room 5109A, Potomac Center Plaza, Washington, DC 20202–2600. Privacy Note: The Department’s policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available. FOR FURTHER INFORMATION CONTACT: Kristen Harper, U.S. Department of Education, 550 12th Street SW., Room 5109A, Potomac Center Plaza, Washington, DC 20202–2600. Telephone: (202) 245–6109. 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 proposed regulations is to promote equity in IDEA. The specific purposes are to (1) help ensure States appropriately identify significant disproportionality based on race and ethnicity in the State and LEAs of the State with regard to identification of children as children with disabilities, the placement of children in particular educational settings, and the incidence, duration, and type of disciplinary actions (including suspensions and expulsions); PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 and (2) help States and LEAs address and reduce significant disproportionality in the State and the LEAs identified. Specifically, the proposed 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 due to disciplinary removals. These proposed regulations specifically address the well-documented and detrimental overidentification of certain students for special education services, with particular concern that overidentification results in children being placed in more restrictive environments and not taught to challenging academic standards. At the same time, there have been significant improvements in the provision of special education, particularly with regard to placing children in general education classrooms with appropriate supports and services, and a commitment to instruction tied to college- and careerready standards for all children, all of which should play a positive role in improving student outcomes. Therefore, the intention of these proposed regulations is not to limit services for children with disabilities who need them; rather, their purpose is to ensure that children are not mislabeled and receive appropriate services. To accomplish this end, these proposed regulations would 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. IDEA does not define ‘‘significant disproportionality,’’ and, in the Department’s August 2006 IDEA Part B regulations, the Department left the matter to the discretion of the States. Since then, States have adopted different methodologies, and, as a result, far fewer LEAs are identified as having significant disproportionality than the disparities in rates of identification, placement, and disciplinary removal across racial and ethnic groups would suggest. 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. E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Further, these proposed regulations would clarify ambiguities in the existing regulations concerning significant disproportionality in the discipline of children with disabilities. Data and research show that children of color with disabilities are more likely to be suspended and expelled than white children with disabilities, and that suspensions are associated with negative student outcomes such as lower academic performance, higher rates of dropout, failures to graduate on time, decreased academic engagement, future disciplinary exclusion, and interaction with the juvenile justice system. (Lamont et al, 2013; Council of State Governments, 2011; Lee, Cornell, Gregory, & Xitao, 2011; Losen and Skiba, 2010; Brooks, Shiraldi & Zeidenberg, 2000; Civil Rights Project, 2000.) In order to improve the review of LEA policies, practices, and procedures when significant disproportionality is found, the Department is also proposing to clarify IDEA’s requirements regarding their review and, when appropriate, revision. Finally, to help address and reduce significant disproportionality when it is found in an LEA, the proposed regulations would expand the scope of and strengthen the remedies required under IDEA. Under section 618(d) of IDEA (20 U.S.C. 1418(d)), if a State determines that significant disproportionality is occurring in an LEA, the State must require the LEA to reserve the maximum amount of funds to provide comprehensive CEIS to serve children in the LEA, particularly children in those racial or ethnic groups that were significantly overidentified. The proposed regulations would require that LEAs identify and address the factors contributing to significant disproportionality as part of the implementation of comprehensive CEIS and would expand the authorized use of funds reserved for these services to serve children from age 3 through grade 12, with and without disabilities. Please refer to the Background section of this notice of proposed rulemaking for a detailed discussion of these proposals and their purposes. Summary of the Major Provisions of This Regulatory Action As described below, the proposed regulations would require States to use a standard methodology to identify significant disproportionality in the State and in its LEAs, including the use of: A risk ratio or, if appropriate given the populations in an LEA, an alternate risk ratio; a reasonable risk ratio threshold; and a minimum cell size of VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 not more than 10 as the standard methodology to determine whether there is significant disproportionality based on race or ethnicity in the State and its LEAs. States would retain 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. States would set risk ratio thresholds for three categories of analysis: • 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 IDEA; • The placement of children with disabilities in particular educational settings; and • The incidence, duration, and type of disciplinary actions, including suspensions and expulsions. These regulations would also provide States with flexibility in determining whether significant disproportionality exists, even if a risk ratio exceeds the risk ratio threshold established by the State. States have the flexibility to choose to identify an LEA as having significant disproportionality only after an LEA exceeds a risk ratio threshold for up to three prior consecutive years. In addition, a State need not identify an LEA with significant disproportionality if the LEA is making reasonable progress in lowering its risk ratios, where reasonable progress is determined by the State. The proposed regulations would clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions of children with disabilities, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities. Under these proposed regulations, States would also have to provide for the review and, if appropriate, revision of an LEA’s policies, practices, and procedures used in the identification or placement of children with disabilities in every year in which an LEA is determined to have significant disproportionality based upon race or ethnicity. Reporting of any revisions to an LEA’s policies, practices, and procedures would have to comply with the confidentiality provisions of FERPA, its implementing regulations in 34 CFR part 99, and section 618(b)(1) of IDEA. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 10969 Finally, the proposed regulations would expand the student populations that may receive comprehensive CEIS when an LEA has been identified with significant disproportionality. Funds reserved for these services under section 618(d)(2)(B) of IDEA (20 U.S.C. 1418(d)(2)(B)) could be used to serve children from age 3 through grade 12, with and without disabilities. Under current regulation, comprehensive CEIS may only serve children without disabilities, from kindergarten through grade 12. The proposed regulations would also require that, as part of implementing these services, an LEA must identify and address the factors contributing to the significant disproportionality. The Department also intends to monitor and assess these regulations once they are final to ensure they have the intended goal of improving outcomes for all children. To that end, the Department will publicly establish metrics by which to assess the impact of the regulations. These might include a comparison of risk ratios to national averages and across States. We welcome public comment on appropriate metrics to use to monitor these regulations. Please refer to the Significant Proposed Regulations section of this notice of proposed rulemaking for a detailed discussion of these proposals. Costs and Benefits As further detailed in the Regulatory Impact Analysis, we estimate that the total cost of these regulations over ten years would be between $47.5 and $87.18 million, plus additional transfers between $298.4 and $552.9 million. The major benefits of these proposed regulations, taken as a whole, include ensuring a standard methodology for determining significant disproportionality based on race and ethnicity in the State and the LEAs in the State with regard to identification of children as children with disabilities, the placement of children in particular educational settings, and the incidence, duration, and type of disciplinary actions, including suspensions and expulsions; ensuring increased transparency on each State’s definition of significant disproportionality; establishing an increased role for stakeholders through State Advisory Panels in determining States’ risk ratio thresholds; 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, and the incidence, duration, and type of disciplinary removals from E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 10970 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules placements, including suspensions and expulsions; and promoting and increasing comparability of data across States in relation to the identification, placement, or 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 flexibility to use IDEA Part B 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 such children at a later date. Invitation to Comment: We invite you to submit comments regarding these proposed regulations and directed questions. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations. We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department’s programs and activities. During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You also may inspect the comments in person in Room 5109A, Potomac Center Plaza, 550 12th Street SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT. Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 listed under FOR FURTHER INFORMATION CONTACT. Background IDEA Requirements Regarding Racial and Ethnic Disparities Under IDEA Part B, the Department provides grants to States, outlying areas, and freely associated States, as well as funds to the Department of the Interior, to assist them in providing special education and related services to children with disabilities. There are four key purposes of the Part B regulations in 34 CFR part 300: (1) To ensure that all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepares them for further education, employment, and independent living; (2) to ensure that the rights of children with disabilities and their parents are protected; (3) to assist States, localities, educational service agencies, and Federal agencies in providing for the education of all children with disabilities; and (4) to assess and ensure the effectiveness of efforts to educate children with disabilities. The overrepresentation of children from racial, cultural, ethnic, and linguistic minority backgrounds in special education programs has been a national concern for four decades. (Donovan & Cross, 2002.) When children of color are identified as children with disabilities at substantially higher rates than their peers, there is a strong concern that some of these children may have been improperly identified as children with disabilities, to their detriment. Misidentification interferes with a school’s ability to provide children with appropriate educational services. (Albrecht, Skiba, Losen, Chung & Middleberg, 2012.) The overidentification of children of color in special education, in particular, raises concerns of potential inequities in both educational opportunities and outcomes. Overidentification may differentially diminish the opportunities of children of color to interact with teachers and others within the larger school context, especially when education is provided in separate settings. Research has found that African American, Hispanic/Latino, and American Indian/Alaska Native children and English language learners have a greater chance of receiving placements in separate educational settings than do their peers. (De Valazuela, Copeland, Huaqing Qi, and PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Park, 2006.) Nationally, Black/AfricanAmerican, Asian, and Native Hawaiian and Other Pacific Islander children with disabilities (ages 6 through 21) were less likely than their White peers to be inside the regular classroom 80 percent or more of the day (56 percent, 57 percent, 54 percent, and 65 percent, respectively) during the 2012–2013 school year (SY). (36th Annual Report to Congress, 2014.) In issuing these proposed regulations, the Department’s goal is to promote equity in IDEA. We want to be clear that our intention is not to deny special education services to children who need them. It is, however, to ensure that children who need special education services receive them in the least restrictive settings. It is also to ensure that children who do not have disabilities and do not need special education services are not inappropriately identified as such, and to ensure that those children receive proper educational supports through the general education system. Congress first addressed racial and ethnic disparities in identification for special education in the IDEA Amendments of 1997 (1997 Amendments). It found that ‘‘[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates of minority children with disabilities,’’ Public Law 105–17, section 601(c)(8)(A) (1997), codified at 20 U.S.C. 1400(c)(12)(A), and noted that ‘‘more minority children continue to be served in special education than would be expected from the percentage of minority students in the general education population.’’ Public Law 105– 17, section 601(8)(B)(1997), codified at 20 U.S.C. 1400(c)(12)(B). The 1997 Amendments added the requirement that States collect and examine data to determine if significant disproportionality based on race was occurring in the identification and placement of children with disabilities. Public Law 105–17, section 618(c)(1) (1997). If States found significant disproportionality, Congress required them to review, and, if appropriate, revise the policies, practices, and procedures used in identification and placement. Public Law 105–17, section 618(c)(2) (1997). In 2004, Congress again found that greater efforts were needed to address misidentification of children of color with disabilities, and it specifically found that ‘‘African-American children are identified as having [intellectual disabilities] or emotional disturbance at rates greater than their White counterparts;’’ that ‘‘[i]n the 1998–1999 E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities;’’ and that ‘‘[s]tudies have found that schools with predominately White students and teachers have placed disproportionately high numbers of minority students into special education.’’ Public Law 108– 446, section 601(c)(12) (2004), codified at 20 U.S.C. 1400(c)(12)(C)–(E). Accordingly, in the Individuals with Disabilities Education Improvement Act of 2004, Congress expanded the provision on significant disproportionality in four respects: (1) Added ‘‘ethnicity’’ to section 618(d)(1) as a basis upon which to determine significant disproportionality (in addition to race); (2) added section 618(d)(1)(C) to require that States determine if significant disproportionality is occurring with respect to the incidence, duration, and type of disciplinary actions, including suspensions and expulsions; (3) added section 618(d)(2)(B) to require the mandatory use of funds for comprehensive CEIS; and (4) added 618(d)(2)(C) to require that LEAS publicly report on the revision of policies, practices, and procedures. In addition to changes to the significant disproportionality provision in section 618(d) of IDEA, Congress added a requirement that States, using quantifiable indicators, monitor LEAs for disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification. Public Law 108–446, section 616(a)(3)(C)(2004), codified at 20 U.S.C. 1416(a)(3). As such, IDEA currently requires each State to collect and examine data to determine if significant disproportionality based on race and ethnicity is occurring in the State and its LEAs in any of three categories of analysis: • 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 IDEA (identification); • The placement of children with disabilities in particular educational settings (placement); and • The incidence, duration, and type of disciplinary actions, including suspensions and expulsions (disciplinary removals). Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)). VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 If a State determines that an LEA has significant disproportionality based on race and ethnicity with respect to identification or placement, then the State must: (1) Provide for the review and, if appropriate, revision of policies, practices, and procedures used in the identification or placement to ensure that its policies, practices, and procedures comply with the requirements of IDEA; (2) require any LEA identified with significant disproportionality to reserve the maximum amount of funds under section 613(f) of IDEA (20 U.S.C. 1413(f)) to provide comprehensive CEIS to serve children in the LEA, particularly children in those groups that were significantly overidentified; and (3) require the LEA to publicly report on the revision of those policies, practices, and procedures. Section 618(d)(2) of IDEA (20 U.S.C. 1418(d)(2)). These requirements are separate and distinct from the requirement that States report in their State Performance Plans/ Annual Performance Reports on the percent of LEAs with disproportionate representation of racial and ethnic groups in special education and related services that is the result of inappropriate identification. Section 616(a)(3)(C) of IDEA; 20 U.S.C. 1416(a)(3)(C); § 300.600(d)(3). Finally, section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)) allows LEAs to voluntarily use up to 15 percent of their IDEA Part B funds (less any reduction by the LEA in local expenditures for the education of children with disabilities pursuant to § 300.205) to develop and implement CEIS,1 which may include interagency financing structures, for children in kindergarten through grade 12 (with a particular emphasis on children in kindergarten through grade three) 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. It is against this background that the Department issues this notice of proposed rulemaking (NPRM) to require a standard methodology for States to use in identifying significant disproportionality on the basis of race and ethnicity in the State and the LEAs of the State and to strengthen the statutory remedies whenever LEAs are identified. There are four parts to the 1 For the sake of clarity and consistency, we refer to ‘‘comprehensive CEIS’’ when an LEA provides coordinated early intervening services by mandate under section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)). When an LEA voluntarily provides these services under section 613(f) (20 U.S.C. 1413(f)), we refer to them as ‘‘CEIS.’’ PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 10971 Department’s proposal: A standard methodology that States must use to determine significant disproportionality; a clarification that the statutory remedies apply to disciplinary removals; a clarification that the review and revision of policies, practices, and procedures occur every year and be consistent with the Family Education Rights and Privacy Act (FERPA) (20 U.S.C. 1232g) and its implementing regulations in 34 CFR part 99 and section 618(b)(1) of IDEA; and an expansion of the allowable and required uses of IDEA Part B funds for comprehensive CEIS. I. Establishing a Standard Methodology States Must Use To Determine Significant Disproportionality A. Definitions of Significant Disproportionality Neither IDEA nor its implementing regulations in 34 CFR part 300 define the term ‘‘significant disproportionality.’’ While section 607(a) of IDEA (20 U.S.C. 1406(a)) explicitly authorizes the Department to issue regulations to ensure compliance with the statute, the Department has previously left the matter to the States. In the preamble to the 2006 IDEA Part B regulations, we 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 general. Therefore, in identifying significant disproportionality, a State may determine statistically significant levels.’’ 71 FR 46540, 46738 (Aug. 14, 2006). Thereafter, in Office of Special Education Programs (OSEP) Memorandum 07–09, April 24, 2007, the Office of Special Education and Rehabilitative Services (OSERS) stated that ‘‘[w]ith one important caveat, each State has the discretion to define what constitutes significant disproportionality for the LEAs in the State and for the State in general. The caveat is that a State’s definition of ‘significant disproportionality’ needs to be based on an analysis of numerical information and may not include considerations of the State’s or LEA’s policies, practices, and procedures.’’ The Department, in short, has historically afforded States discretion in establishing methodologies for identifying significant disproportionality. States, in turn, have adopted a range of methodologies, including different methods for calculating disparities between racial and ethnic groups, different considerations for the duration of those E:\FR\FM\02MRP2.SGM 02MRP2 10972 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules disparities, and different mechanisms for excluding LEAs from any determination of whether significant disproportionality exists. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 B. The 2013 GAO Study on Racial and Ethnic Overrepresentation in Special Education In February 2013, the Government Accountability Office (GAO) issued a study entitled ‘‘INDIVIDUALS WITH DISABILITIES EDUCATION ACT— Standards Needed to Improve Identification of Racial and Ethnic Overrepresentation in Special Education (GAO–13–137).’’ The GAO found that, in SY 2010–2011, States required about two percent of all school districts that received IDEA funding to use 15 percent of IDEA Part B funds for comprehensive CEIS to address significant disproportionality on the basis of race and ethnicity. Of a total of more than 15,000 districts nationwide, only 356 LEAs (roughly two percent of LEAs) were required to provide comprehensive CEIS. The GAO 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.) C. Actions Taken by the Department Since the GAO Study Like the GAO, the Department is concerned that the wide range of methodologies used to determine significant disproportionality creates significant challenges in assessing whether the problem of racial and ethnic disparities is being addressed. In fact, based on data collected by the Department’s OSEP and Office for Civil Rights, the Department is concerned that many States are not identifying LEAs with large disparities in identification, placement, and VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 discipline, thereby depriving a number of children of the remedies enumerated in statute, including comprehensive CEIS, for populations who are overidentified. Accordingly, in recent years the Department has taken a number of steps intended to address this problem. In a report to the President published in May 2014, the My Brother’s Keeper Task Force identified disparities in special education as a significant challenge that should be addressed. In June 2014, the Department published a request for information (RFI) inviting public comment on the GAO’s recommendation that the Department adopt a standard methodology for determining significant disproportionality. 79 FR 35154 (June 19, 2014). The 95 commenters responding to the RFI generally fell into two broad categories: Civil rights and advocacy organizations, and SEA representatives. For the most part, civil rights and advocacy organizations strongly urged the Department to require a standard methodology that would offer States flexibility and at the same time decrease inter-State variability in methodologies for determining significant disproportionality. Most SEA representatives, in contrast, did not support the adoption of a standard methodology and asserted that a single methodology would be unlikely to fit the circumstances of different States. SEA representatives also noted that there are a large number of districts in the country that vary greatly in population, number of children served, geographic size, student needs, per pupil expenditures, and range of services offered. These commenters noted that some States have established ‘‘intermediate school districts’’ that only serve children with disabilities and that there is a high incidence of disability among children in some communities because of environmental factors. These commenters argued that, in such instances, a standard methodology for determining significant disproportionality might unintentionally identify LEAs that have disparities in enrollment rather than LEAs that actually have disparities based on race and ethnicity in the identification, placement, or disciplinary removal of children with disabilities. Other commenters argued that comprehensive CEIS (as outlined in the current regulations) may be ineffective as a tool to address significant disproportionality, since States often identify the same LEAs every year even after comprehensive CEIS has been PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 employed. One commenter, representing an SEA, stated that clearer guidance regarding appropriate uses of funds for comprehensive CEIS would support more widespread implementation of multi-tiered systems of support. Other commenters, including an SEA representative and a group representing special education administrators, noted that States could not presently use comprehensive CEIS under section 618(d) of IDEA to provide services and support to children with disabilities even if they represent groups with significant disproportionality with respect to disciplinary removal and placement because of the limited population of children eligible for CEIS in section 613(f) of IDEA. Finally, the Department also undertook its own review of the State procedures for identifying LEAs with significant disproportionality. We reviewed methodologies for the 50 States, the District of Columbia, and the U.S. Virgin Islands, including whether States used the same or different methods across the three categories of analysis under section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) (identification, placement, and disciplinary removal).2 Additional information regarding the various methodologies currently in use is available in the IDEA Data Center’s Methods for Assessing Racial/Ethnic Disproportionality in Special Education: A Technical Assistance Guide (Revised), published at https://ideadata.org/files/ resources/54480c2b140ba0665d8b4569/ 54c90646150ba0e04f8b457c/idc_ta_ guide_for_508-051614/2015/01/28/idc_ ta_guide_for_508-051614.pdf. We examined the results of the States’ various methodologies for determining significant disproportionality by reviewing the LEAs identified based on the SY 2012–2013 IDEA section 618 data. We also analyzed data on the rates of identification, placement, and disciplinary removals submitted by the States under section 618. Further, we conducted a review of research to better understand the extent and nature of racial and ethnic disparities in special education. Through these efforts, the Department found the following. 1. Risk Ratio Is the Most Common Method of Determining Significant Disproportionality At the time of our review, 45 States used one or more forms of the risk ratio method to determine significant disproportionality. As there are a 2 As part of the SY 2013–2014 State Supplement Survey (SSS), each State was required to submit to the Department the methodology it uses to determine significant disproportionality. E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules number of different ways to calculate risk ratios for the purpose of identifying significant disproportionality, as well as alternatives to the risk ratio method, we provide an overview and background on how States are identifying LEAs with significant disproportionality. ‘‘Standard’’ Risk Ratio The ‘‘standard’’ risk ratio method compares the likelihood, or ‘‘risk,’’ that children in a particular racial or ethnic group in an LEA will be identified for special education and related services to the likelihood that children in a comparison group, usually all other children in the LEA, will be identified for special education and related services. For example, if an LEA serves 100 Black/African-American children and 15 of them are identified as being a student with a disability, the ‘‘risk’’ for Black/African-American children to be identified as a student with a disability would be 15 percent (15/100 = 15 percent). A risk ratio would then compare this ‘‘risk’’ for Black/AfricanAmerican children to the ‘‘risk’’ for all non-Black/African-American children in the LEA. A risk ratio calculation can also be used to compare the relative risk of placement in a particular setting or disciplinary removal. (Bollmer, Bethel, Garrison-Morgan & Brauen, 2007.) At the time of our review, 21 States used the ‘‘standard’’ form of the risk ratio method. Generally, a risk ratio of 1.0 indicates that children in a given racial or ethnic group are no more likely than children from all other racial or ethnic groups to be identified for special education and related services, be identified with a particular impairment, be placed in a particular educational setting, or face disciplinary removals from placement. A risk ratio greater than 1.0 indicates that the risk for the racial or ethnic group is greater than the risk for the comparison group. Accordingly, a risk ratio of 2.0 indicates that one group is twice as likely as other children to be identified, placed, or disciplined in a particular way; a risk ratio of 3.0 indicates that one group is three times as likely as other children to be identified, placed, or disciplined in a particular way; etc. 10973 For example, consider an LEA that serves 5,000 children, 1,000 of whom are Black/African-American. In total, there are 450 children with disabilities in the LEA, 150 of whom are Black/ African-American. As such, the likelihood, or ‘‘risk,’’ of any particular Black/African-American student in the LEA being identified as having a disability is 15 percent (150 Black/ African-American children with disabilities/1000 Black/AfricanAmerican children in the LEA * 100 = 15 percent). The likelihood of any nonBlack/African-American student in the LEA being identified as having a disability is 7.5 percent (300 non-Black/ African-American children with disabilities/4,000 non-Black/AfricanAmerican children in the LEA * 100 = 7.5 percent). As such, in the standard version of the calculation, the risk ratio for Black/African-American children being identified as children with disabilities in this LEA would be 2.0 (15 percent of Black/African-American children identified with disabilities/7.5 percent of non-Black/African-American children with disabilities = 2.0). TABLE 1—EXAMPLE STANDARD RISK RATIO CALCULATION FOR IDENTIFICATION OF BLACK/AFRICAN-AMERICAN CHILDREN IN AN LEA Black/African-American children mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Children with disabilities .......................... All children (with and without disabilities) Risk .......................................................... Risk ratio .................................................. Non-Black/African-American children 150 ........................................................... 1,000 ........................................................ 150/1,000 = 15 percent ........................... 15 percent/7.5 percent = 2.0 ................... 300 ........................................................... 4,000 ........................................................ 300/4,000 = 7.5 percent .......................... N/A ........................................................... Risk ratios provide little information regarding racial and ethnic disparities when the risk to a racial or ethnic group of interest is zero. In this last example, if zero Black/African-American children were identified with a disability, and the risk to non-Black/African-American children remained at 7.5 percent, the risk ratio for Black/African-American children being identified as children with disabilities would be zero (0/7.5 percent). This ratio would remain zero, irrespective of the risk to non-Black/ African-American children, despite the appearance of some disparity in identification of non-Black/AfricanAmerican children. While a risk ratio of zero is a fully valid and reasonable result of these calculations, it cannot, in the absence of other information, provide context about the gaps in identification rates across racial or ethnic groups. Further, risk ratios cannot be calculated when the risk to a comparison group is zero, or when there are no children in a comparison group. In the above scenario, if the risk of VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 identification for Black/AfricanAmerican children remains at 15 percent, but the risk to non-Black/ African-American children is zero, the State cannot calculate a risk ratio for the identification of Black/AfricanAmerican children because it is not possible to divide a number by zero (15 percent divided by 0 is undefined). The result would be the same if there were no non-Black/African-American children in the LEA, though the issue would arise one step earlier in the calculation of the risk for non-Black/ African-American children rather than in the calculation of the risk ratio itself. Alternate Risk Ratio The use of the alternate risk ratio is one method for calculating risk ratios when there is an insufficient number of children in the comparison group at the LEA level to provide meaningful results (e.g., an LEA in which there are only 5 non-White children). (Bollmer et al. 2007.) Seven states use the alternate risk ratio method to compare the risk of a PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 Total children 450 5,000 N/A N/A subgroup in the LEA to the risk of all other subgroups in the State. For example, consider an LEA that serves 500 children, including 495 American Indian/Alaska Native children. We assume that the LEA serves 100 children with disabilities and only one of them is not American Indian/Alaska Native. We could calculate a risk for American Indian/ Alaska Native children by dividing the number of American Indian/Alaska Native children identified as children with disabilities (99) by the total number of American Indian/Alaska Native children in the LEA (495) and determine a risk of 20 percent (99/495 = 20 percent). However, when we attempt to calculate the ‘‘risk’’ for nonAmerican Indian/Alaska Native children, we notice that the total number of non-American Indian/Alaska Native children in the LEA (5) is sufficiently small that it is unlikely to generate stable risk calculations from year to year in the comparison group. As such, we need to use an alternate risk ratio calculation for non-American E:\FR\FM\02MRP2.SGM 02MRP2 10974 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules Indian/Alaska Native children. In this case, States would look at what the State-wide risk is for non-American Indian/Alaska Native children. In this example, we will assume the State-wide risk for non-American Indian/Alaska Native children is 15 percent. We then compare the risk for American Indian/ Alaska Native children in the LEA to the risk for non-American Indian/Alaska Native children Statewide to calculate the ‘‘alternate risk ratio’’ of 1.33 (20 percent/15 percent = 1.33). TABLE 2—EXAMPLE ALTERNATE RISK RATIO CALCULATION OF IDENTIFICATION FOR AMERICAN INDIAN/ALASKA NATIVE CHILDREN IN AN LEA American Indian/ Alaska Native children in LEA Children with Disabilities ................ All Children (with and without disabilities). Risk ................................................ Alternate Risk Ratio ....................... Non-American Indian/Alaska Native children in LEA 99 .................................................. 495 ................................................ 1 .................................................... 5 .................................................... 30,000 200,000 99/495 = 20 percent ..................... 20 percent/15 percent = 1.33 ....... N/A Below minimum cell size ....... N/A ................................................ 30,000/200,000 = 15 percent N/A Weighted Risk Ratio Separately, the Department also found that 25 States used a weighted risk ratio method, which addresses challenges associated with variances in LEA demographics by using State-level demographics to standardize LEA-level distributions of race and ethnicity. When using a weighted risk ratio method, 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 (e.g., if one racial or ethnic group comprises only five percent of children Statewide, the risk for that racial or ethnic group in each LEA will only comprise five percent of the calculated risk for the other groups). Stated mathematically, the weighted risk ratio is calculated as follows: where Ra is the LEA-level risk for racial or ethnic group a and pa is the Statelevel proportion of children from racial or ethnic group a. Rn is the LEA-level risk for the n-th racial or ethnic group and pn is the State-level proportion of children from the n-th racial or ethnic group. For example, consider a State with a population of school children that is 70 percent White, 10 percent Hispanic/ Latino, and 20 percent Black/AfricanAmerican. Within that State, LEA A has 10,000 children and very different demographics-–1,000 White children, 8,000 Hispanic/Latino children, and 1,000 Black/African-American children. Of them, 20 White children (2 percent), 80 Hispanic/Latino children (1 percent), and 50 Black/African-American children (5 percent) are identified for special education and related services. In order to calculate the weighted risk Non-American Indian/Alaska Native children Statewide ratio, the State would first weight the risks for the various racial or ethnic groups in the LEA by the proportion of total students Statewide that are in the same racial or ethnic group. They would then divide the weighted risks similar to the procedure in the standard risk ratio. The weighted risk ratio of identification for White children in the LEA is 0.55. The standard risk ratio, however, is 1.38. In LEA B, where demographics are more similar to the State—8,000 White children, 1,000 Hispanic/Latino children, and 1,000 Black/AfricanAmerican children—and the risk of identification for each group is the same as in LEA A (there are 160 White children, 10 Hispanic/Latino children, and 50 Black/African-American children with disabilities), the standard risk ratio of identification for White children is 0.67. However, the weighted risk ratio for LEA B would be 0.55, same as LEA A. TABLE 3—EXAMPLE STANDARD AND WEIGHTED RISK RATIO CALCULATION OF IDENTIFICATION FOR WHITE CHILDREN IN TWO LEAS Comparison group (i.e., Hispanic/ Latino and Black/AfricanAmerican children) in LEA A Comparison Group (i.e., Hispanic/ Latino and Black/AfricanAmerican children) in LEA B White children in LEA B 10 percent .................. 80 percent Hispanic/Latino; 10 80 percent .................. percent Black/African-American. Number of children .... 1000 ........................... Number of children with a disability. Risk ............................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Percentage of LEA enrollment. 20 ............................... Risk ratio .................... 2 percent/1.4 percent = 1.38. (20/1000) × (1 ¥ 0.7) = 0.6 percent. 8000 Hispanic/Latino + 1000 Black/African-American = 9000. 80 Hispanic/Latino + 50 Black/African-American = 130. (80 + 50)/(8000 + 1000) = 1.4 percent. Not applicable .............................. Weighted risk a ........... VerDate Sep<11>2014 20/1000 = 2 percent .. 18:15 Mar 01, 2016 Jkt 238001 For Hispanic/Latino (80/8000) × 0.1 = 0.1 percent. For Black/African-American (50/ 1000) × 0.2 = 1 percent. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 8000 ........................... 160 ............................. 160/8000 = 2 percent 2 percent/3 percent = 0.67. (160/8000) × (1 ¥ 0.7) = 0.60 percent. E:\FR\FM\02MRP2.SGM 10 percent Hispanic/Latino; 10 percent Black/African-American. 1000 Hispanic/Latino + 1000 Black/African-American = 2000. 10 Hispanic/Latino + 50 Black/African-American = 60. (10 + 50)/(1000 + 1000) = 3 percent. Not applicable. For Hispanic/Latino (10/1000) × 0.1 = 0.1 percent. For Black/African-American (50/ 1000) × 0.2 = 1 percent. 02MRP2 EP02MR16.000</GPH> White children in LEA A 10975 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules TABLE 3—EXAMPLE STANDARD AND WEIGHTED RISK RATIO CALCULATION OF IDENTIFICATION FOR WHITE CHILDREN IN TWO LEAS—Continued White children in LEA A Weighted risk ratio ..... Comparison group (i.e., Hispanic/ Latino and Black/AfricanAmerican children) in LEA A White children in LEA B Comparison Group (i.e., Hispanic/ Latino and Black/AfricanAmerican children) in LEA B 0.6 percent/(0.1 percent + 1 percent) = 0.55. Not applicable .............................. 0.6 percent/(0.1 percent + 1 percent) = 0.55. Not applicable. a Assumes racial and ethnic representation at the State level is 70 percent White, 10 percent Hispanic/Latino, and 20 percent Black/AfricanAmerican. Risk Difference Fewer than five States use the risk difference method, which is similar to the risk ratio method in approach and simplicity. While both compare the risk for a racial or ethnic group of interest to the risk for a comparison group (generally, children in all other racial and ethnic groups in the LEA), the risk difference method provides a percentage point difference between the two risks, while the risk ratio method provides a quotient. For example, in an LEA where 15 percent of Black/African-American children are identified with emotional disturbance and 10 percent of children in all other racial and ethnic groups are identified with emotional disturbance, the risk difference is 5 percentage points. TABLE 4—EXAMPLE RISK DIFFERENCE CALCULATION OF DISCIPLINE FOR BLACK/AFRICAN-AMERICAN CHILDREN IN AN LEA Black/African-American children Percent of children suspended fewer than 10 days. Risk Difference .................................................. Non-Black/African-American children Difference and Relative Difference in Composition Fewer than five States use a composition method as part of their significant disproportionality 10 percent. 15 percent ¥ 10 percent = 5 percent .............. N/A. methodology. The composition method compares a racial or ethnic group’s representation among all children identified, placed, or disciplined to the racial or ethnic group’s representation in another context, such as LEA enrollment. Consider, for example, an LEA where American Indian/Alaskan Native children represent 24 percent of all children with disabilities suspended or expelled from school for fewer than 10 The Department found that approximately five States used a variation of risk difference in which they compared the risk of an outcome for a racial or ethnic group to the risk of an outcome to a State, local, or national population. 15 percent ........................................................ days in a given year but only represent 8 percent of the LEA’s enrollment. Using the composition method, a State calculates the difference in composition by subtracting representation in LEA enrollment (8 percent) from representation in out-of-school suspensions and expulsions of fewer than 10 days (24 percent). A positive figure—16 percentage points in this case—is indicative of overrepresentation. TABLE 5—EXAMPLE CALCULATIONS OF DIFFERENCE IN COMPOSITION FOR DISCIPLINE FOR AMERICAN INDIAN/ALASKA NATIVE, BLACK/AFRICAN-AMERICAN, AND WHITE CHILDREN IN AN LEA American Indian/Alaska Native Percent of children suspended fewer than 10 days ........................................................ Percent of total enrollment .............................................................................................. Difference in composition ................................................................................................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Alternatively, a State may calculate the relative difference in composition by dividing the representation in LEA 24 8 24 ¥ 8 = +16 enrollment by representation in out-ofschool suspensions and expulsions of fewer than 10 days (24 percent/8 Black/AfricanAmerican 36 32 36 ¥ 32 = +4 White 40 60 40 ¥ 60 = ¥20 percent). A number greater than one— 3.0 in this case—is indicative of overrepresentation. TABLE 6—EXAMPLE CALCULATION OF A RELATIVE DIFFERENCE FOR DISCIPLINE IN COMPOSITION IN AN LEA American Indian/Alaska Native Percent of children suspended fewer than 10 days ........................................................ Percent of total enrollment .............................................................................................. Relative difference in composition ................................................................................... VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 Black/AfricanAmerican 24 8 24/8 = 3.0 E:\FR\FM\02MRP2.SGM 36 32 36/32 = 1.1 02MRP2 White 40 60 40/60 = 0.7 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules 2. Most States Use Risk Ratio Thresholds to Differentiate Disproportionality From Significant Disproportionality The 45 States using the risk ratio method or one of its variations define a risk ratio threshold, over which disproportionality is considered significant. The Department found that the most common risk ratio threshold used by States was 4.0 (16 States), with 7 States each using 3.0 or 5.0. Fewer than five States use the Eformula method to establish thresholds, which shift based on the size of the LEA analyzed. This approach can be used to develop thresholds for the risk ratio method, or for the composition method. (IDEA Data Center 2014.) The EFormula, when used with a composition method, is: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 where A is the percentage of the same ethnic minority group in the LEA enrollment, N is the total special education enrollment in the LEA, and E is the maximum percentage (the resulting threshold) of the total special education enrollment in an LEA allowed for a specific ethnic minority group. For example, consider a State using a composition method, analyzing an LEA where 10 percent of the population consists of Black/AfricanAmerican children and the total number of children with disabilities in the LEA is 1,000. Based on the E-formula, the threshold for that LEA for the identification of Black/AfricanAmerican children would be 10.9 percent (i.e., 10 + Sqrt [(100 × 90/1000)] = 10.9). In this case, a State would find an LEA to have significant disproportionality if the risk of identification for Black/AfricanAmerican children exceeded 10.9 percent. (IDEA Data Center 2014.) 3. Many States Have Minimum Cell Size Requirements The Department also found that a number of States restrict their assessment of significant disproportionality to include only those LEAs that have sufficient numbers of children to generate stable calculations. When an LEA has a particularly small number of children in a particular racial or ethnic group, relatively small changes in enrollment could result in large changes in the calculated risk ratio. For example, if an LEA identified non-American Indian/Alaska Native children as being children with disabilities at a rate of 15 percent and had identified one of its four American VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 Indian/Alaska Native children as having a disability, its calculated risk ratio would be 1.67 (25 percent divided by 15 percent). However, if one additional American Indian/Alaska Native student with a disability moved into the LEA, the risk ratio would increase to 2.67 (40 percent divided by 15 percent). Alternatively, if the American Indian/ Alaska Native student with a disability left the LEA, the risk ratio would decrease to zero. Given the statutory consequences associated with being identified as having significant disproportionality, States have sought to minimize such large variations based on small changes in enrollment. Overall, 30 States and the District and Columbia reported using some form of minimum cell size requirement—where the cell is generally defined as the number of children for the racial or ethnic group of interest, the number of children in the comparison group, or both—to accomplish this goal. Of the States that use minimum cell size requirements, 11 use more than one cell definition. For example, nine States prescribe minimum cell sizes for both the number of children with disabilities in the racial or ethnic group being analyzed and the number of children with disabilities in the comparison group. That is, if an LEA does not have a sufficiently large population of children with disabilities in both the racial and ethnic group of interest and in the comparison group, the LEA will be excluded from any determination of significant disproportionality. Some States define the cell in other ways, including the number of children enrolled in the LEA in the racial or ethnic group being analyzed (seven States) and the total number of children with disabilities enrolled in the district (1 State and the District of Columbia). Of the 18 States that use the most common cell size definition—the number of children with disabilities in the racial or ethnic group being analyzed—9 States use a minimum cell size of 10 and 4 States use a minimum cell size of 30. In general, the use of a minimum cell size will eliminate a certain number of LEAs from all or parts of a State’s analysis. For example, if a State sets a minimum cell size of 10, any LEA with fewer than 10 children in the particular group being analyzed will be eliminated from the analysis of significant disproportionality. As the minimum cell size increases, the number of LEAs eliminated from the analysis also increases. However, while smaller minimum cell sizes increase the number of LEAs being analyzed, they also increase the chances that small changes PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 in enrollment will trigger a finding of significant disproportionality. (IDEA Data Center, 2014.) Note again the previous example in which a onestudent change in the LEA’s enrollment caused a large increase in the LEA’s calculated risk ratio. 4. Many States Use Multiple Years of Data To Determine Significant Disproportionality Another way States have identified significant disproportionality in LEAs with small numbers of children is to identify an LEA only after its risk ratio is above a certain threshold for a number of consecutive years (e.g., two or three years). Identifying an LEA as having significant disproportionality only if it is above a threshold for multiple, consecutive years is a way of separating LEAs that have high risk ratios that are statistical anomalies from those in which there are persistent underlying problems. For example, LEAs with generally low levels of disproportionality may experience an unexpectedly high level of disproportionality in one year due to factors that do not represent the kind of consistent, underlying problems in identification, placement, or disciplinary removals that may be addressed through comprehensive CEIS or revisions to policies, practices, and procedures. LEAs with consistent, high levels of disproportionality are more likely to need a revision of policies, practices and procedures, and, potentially, comprehensive CEIS, to address the underlying factors contributing to those high levels. (Bollmer, Bethel, Munk & Bitterman, 2014.) Of the 23 States that use multiple years of data, 13 States require an LEA to exceed the threshold for three consecutive years before finding significant disproportionality, while 9 States require 2 consecutive years. One State requires an LEA to exceed the threshold for four consecutive years prior to making a determination. 5. Low Overall Identification of Significant Disproportionality Across All States and All Methodologies Used The Department reviewed the frequency with which States identified significant disproportionality using IDEA section 618 data, and, during SY 2012–2013, 28 States and the District of Columbia identified any LEAs with significant disproportionality. Together, these States identified 491 LEAs (3 percent of LEAs nationwide), somewhat higher than the 356 LEAs identified in SY 2010–2011. The majority of the identified LEAs were in a small number E:\FR\FM\02MRP2.SGM 02MRP2 EP02MR16.001</GPH> 10976 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 of States—75 percent of all identified LEAs were located in seven States: California (10 percent of all LEAs identified), Indiana (12 percent), Louisiana (16 percent), Michigan (4 percent), New York (16 percent), Ohio (11 percent), and Rhode Island (6 percent). Based on the Department’s Digest of Education Statistics, these seven States accounted for only 20 percent of all regular school districts 3 in the country. (2011–12 and 2012–13.) Of the States that identified LEAs with significant disproportionality, the Department determined that 11 States identified LEAs in only one category of analysis. For example, Alabama, Arkansas, Connecticut, Delaware, and Virginia only identified significant disproportionality with respect to identification with a particular impairment. Only the District of Columbia and four States—Georgia, Indiana, Mississippi, and New York— identified LEAs with significant disproportionality in all three categories of analysis. 6. Overrepresentation and UnderIdentification of Children of Color in Special Education While decades of research, Congress, and GAO have found that the overrepresentation of children of color among children with disabilities is a significant problem, some experts and respondents to the June 2014 RFI have noted that under-identification in special education is a problem for children of color in a number of communities. These experts and respondents highlight the possibility that policies and practices intended to reduce overrepresentation may exacerbate inequity in special education by reducing access to special education and related services for children of color. (Morgan, P.L., Farkas, G., Hillemeier, M.M., Mattison, R., Maczuga, S., Li, H. & Cook, M., 2015.) Many of these experts suggest that, when taking into account differential exposure to various risk factors for disability, there is little to no evidence of over-identification for special education. Based on child count data submitted by the States under Section 618 of the IDEA, racial and ethnic minorities are identified as being children with disabilities at a higher rate than their white peers. (U.S. Department of Education and U.S. Census Bureau, 2013.) In SY 2012–2013, for example, 3 Regular school districts include both independent districts and those that are a dependent segment of a local government. Independent charter schools and other agencies are not included. VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 Black/African-American children were 2.1 times as likely as all other children to receive special education and related services for an emotional disturbance. American Indian/Alaska Native children were 1.8 times more likely than all other racial or ethnic groups to receive special education and related services for specific learning disabilities. At the LEA level, racial and ethnic disparities in special education are more pronounced. For example, while nationally Black/African-American children were 2.1 times more likely than their peers to be identified as having an emotional disability, the Department found that more than 1,500 individual LEAs identified at least one racial or ethnic group as having an emotional disability at 3 times or more the rate of other children in that LEA for 3 or more consecutive years (SY 2011–2012, SY 2012–2013, and SY 2013–2014). The rate of identification of children as children with disabilities varies across racial and ethnic groups both nationally and locally. However, as noted by numerous researchers, various racial and ethnic groups may have differential exposure to a number of other risk factors for disability including, but not limited to, low socioeconomic status, low birth weight, and lack of health insurance. (Morgan, P.L., et al., 2015.) Morgan, et al., (2015) compared Black/African-American, Hispanic/ Latino, and other children of color to their White peers with respect to identification for one of five impairments (learning disabilities, speech or language impairments, intellectual disabilities, health impairments, and emotional disturbance). After controlling for a number of covariates, the authors found that children of color were less likely than otherwise similar White, Englishspeaking children to be identified as having disabilities (in some cases, by up to 75 percent). While this study used nationally representative data from the Early Childhood Longitudinal Study— Kindergarten (ECLS–K), there were some limitations to the analysis. The authors studied a single cohort of children, limiting their ability to detect the impacts of external effects, such as changes in State or Federal policy, that may have impacted the findings. Additionally, the study was unable to include controls for local-level variation (e.g., school to school), which prior research (Hibel, Farkas, and Morgan 2010) has shown can mitigate such findings of under-identification. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 10977 A separate study examined the influence of school- and district-level characteristics—specifically racial and ethnic composition and economic disadvantage—on the likelihood of special education identification for Black/African-American and Hispanic/ Latino children. (Ramey, 2015.) The author found that, on average, schools and districts with larger Black/AfricanAmerican and Hispanic/Latino populations had lower rates of Black/ African-American and Hispanic/Latino children receiving services under IDEA for emotional disturbances or other health impairment. Further, the author found that, in less disadvantaged districts, there is a negative correlation between the percentage of Black/ African-American children in a school and receipt of IDEA services. On average, Black/African-American children in these more affluent school districts were less likely to receive IDEA services as the percentage enrollment of Black/African-American children’ increases. By contrast, the author found no significant association between Black/African-American enrollment and the likelihood of receiving IDEA services in more disadvantaged districts. Based on this review of recent research, and the analysis of child count data, the Department found clear evidence that overrepresentation on the basis of race and ethnicity continues to exist at both the national and local levels. The Department’s review of research found that overrepresentation and underidentification by race and ethnicity are both influenced by factors such as racial isolation and poverty. However, research that investigates whether overrepresentation and underidentification of children of color in special education co-occur at the local level is inconclusive. The Department has included a directed question to specifically request public comment on strategies to prevent the underidentification of children of color in special education. At the same time, the review also demonstrates that any effort to identify significant disproportionality in LEAs should be designed to ensure that children with disabilities receive the special education and related services that they need and not create incentives for LEAs not to identify children as children with disabilities or to place them in inappropriate educational settings. It is important to do so to ensure that all children have the opportunity to participate and succeed in the general education curriculum to the greatest extent possible. In addition, variation across States in how they measure and determine E:\FR\FM\02MRP2.SGM 02MRP2 10978 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules significant disproportionality inherently hampers efforts at national analyses. While all of the methodologies currently being used by States have strengths and weaknesses, the application of a standard methodology will help increase our understanding of these effects in LEAs across the country and may, in time, help strengthen our understanding of the variations in rates of identification, placement, and disciplinary removals of children with disabilities of different racial and ethnic groups while also identifying best practices in reducing inappropriate practices nationwide. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 D. The Proposed Standard Methodology To determine whether significant disproportionality on the basis of race and ethnicity is occurring in the State or the LEAs of the State, the Department proposes to require States to use a standard methodology that consists of specific methods for calculating racial or ethnic disparities, specific metrics that the States must analyze for racial and ethnic disparities, limitations on the minimum cell sizes State may use to exclude LEAs from any determinations of significant disproportionality, and specific flexibilities States may consider when making determinations of significant disproportionality. Accordingly, to determine significant disproportionality, we propose to require States to use the risk ratio method or the alternate risk ratio method (if the total number of children in the comparison group within the LEA is fewer than 10 or if the risk for the comparison group is zero, respectively). We propose that States calculate the risk ratio, or alternate risk ratio, for each category of analysis using the following long-standing section 618 data reporting as noted by the Department in OSEP Memorandum 08–09 (July 28, 2008) and established, following notice and comment, in OMB-approved data collections 1875–0240 and 1820–0517: • Identification of children ages 3 through 21 as children with disabilities; • Identification of children ages 3 through 21 as children with intellectual disabilities, specific learning disabilities, emotional disturbance, speech or language impairments, other health impairments, and autism; • Placement, including disciplinary removals from placement, of: (1) Children ages 6 through 21 inside a regular class less than 40 percent of the day, (2) Children ages 6 through 21 inside a regular class no more than 79 percent of the day and no less than 40 percent of the day, (3) Children ages 6 through 21 inside separate schools and residential facilities, not including homebound or hospital settings, correctional facilities, or private schools, VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 (4) Children ages 3 through 21 in out-ofschool suspensions and expulsions of 10 days or fewer, (5) Children ages 3 through 21 in out-ofschool suspensions and expulsions of more than 10 days, (6) Children ages 3 through 21 in in-school suspensions of 10 days or fewer, (7) Children ages 3 through 21 in in-school suspensions of more than 10 days, and (8) Disciplinary removals in total. We propose to require States to calculate the risk ratio or alternate risk ratio, as appropriate, based on a minimum cell size no greater than 10 children when analyzing identification and based on a minimum cell size no greater than 10 children with disabilities when analyzing disciplinary removal and placement. In all cases, especially those in which States opt to use a minimum cell size less than 10, States must be aware of, and conduct their analyses consistently with the confidentiality provisions of FERPA, its implementing regulations in 34 CFR part 99, and the reporting requirements of section 618(b) of IDEA. Under the proposed regulations, States may select risk ratio thresholds appropriate to their individual needs, provided that: (a) The thresholds are reasonable and (b) the thresholds are developed based on advice from stakeholders, including State Advisory Panels. Further, risk ratio thresholds would be subject to Departmental monitoring and enforcement for reasonableness. We propose to allow States to select different risk ratio thresholds for different categories of analysis (e.g., 3.5 for intellectual disability and 4.0 for emotional disturbance). However, the use of different thresholds for different racial and ethnic groups, may violate applicable requirements of federal statutes and the Constitution. Finally, we propose that, although States would still be required to calculate risk ratios for their LEAs to determine significant disproportionality on an annual basis, States would have the flexibility to identify as having significant disproportionality only those LEAs that exceed their risk ratio threshold(s) for up to three prior consecutive years. We also propose to allow States not to identify LEAs that exceed the risk ratio threshold if they are making reasonable progress, as determined by the State, in lowering risk ratios from the preceding year. II. Clarification That Statutory Remedies Apply to Disciplinary Removals When a State finds significant disproportionality based on race or PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 ethnicity with respect to identification or placement, IDEA and its implementing regulations require a set of remedies intended to address the significant disproportionality. The State must: (1) Provide for the review, and, if appropriate, revision of policies, practices, and procedures to ensure that they comply with the requirements of IDEA; (2) require any LEA identified with significant disproportionality to reserve 15 percent of IDEA Part B funds to provide comprehensive CEIS to serve children in the LEA, particularly, but not exclusively, children in those groups that were significantly overidentified; and (3) require the LEA to publicly report on the revision of policies, practices, and procedures. Section 618(d)(2) of IDEA (20 U.S.C. 1418(d)(2)); 34 CFR 300.646(b). When Congress added discipline to section 618(d)(1) in 2004, it made no specific corresponding change to the introductory paragraph of section 618(d)(2). Therefore, although States are required under section 618(d)(1) to collect and examine data to determine if significant disproportionality is occurring with respect to the incidence, duration, and type of disciplinary actions in their State and their LEAs, the required actions set forth in section 618(d)(2) are not explicitly applied if a State determines that there is significant disproportionality with respect to ‘‘disciplinary actions.’’ The Department believes that this has resulted in a statutory ambiguity because disciplinary actions are generally removals of the student from his or her placement for varying lengths of time and may constitute a change in placement under certain circumstances. (See section 615(k) of IDEA.) The Department has, therefore, previously taken the position that the required remedies in 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.) We propose to adopt that long-standing interpretation into the Part B regulations. III. Clarification of the Review and Revision of Policies, Practices, and Procedures As a consequence of a State determination of significant disproportionality in an LEA, a State must provide for the review and, if E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules appropriate, revision of policies, practices, and procedures to ensure compliance with the requirements of IDEA. Section 618(d)(2)(A) of IDEA (20 U.S.C. 1418(d)(2)(A)). In cases where it is appropriate to make revisions to policies, practices, or procedures, the LEA must publicly report on those revisions. Section 618(d)(2)(C) of IDEA (20 U.S.C. 1418(d)(2)(C)). Consistent with the plain language of section 618(d)(2)(A), the Department has previously interpreted the statute to require States to provide for a review of policies, practices, and procedures for compliance with the requirements of IDEA. See OSEP Memorandum 07–09. However, the Department notes that this guidance did not clearly explain that States must provide for this review in every year in which the LEA is identified with significant disproportionality. If significant disproportionality is found in identification, placement, or discipline, a review of policies, practices, and procedures in that area must take place to ensure compliance with the IDEA. Additionally, in accordance with their responsibility under 34 CFR 300.201, in providing for the education of children with disabilities, LEAs must have in effect policies and procedures and programs that are consistent with the State’s child find policies and procedures established under 34 CFR 300.111. Therefore, LEAs identified with significant disproportionality with respect to identification must continue to properly implement the State’s child find policies and procedures. An annual review of policies, practices, and procedures that includes a review for compliance with the State’s child find policies and procedures is intended to prevent such LEAs from inappropriately reducing the identification of children as children with disabilities. To ensure that LEAs identified in multiple years review their policies, practices, and procedures every year in which they are identified with significant disproportionality, we propose that the regulation clarify that the review of policies, practices, and procedures must take place in every year in which the LEA is identified with significant disproportionality. Further, as our proposed standard methodology allows States the flexibility to select a minimum cell size lower than 10, we propose to add language reminding States that public reporting of LEA revisions of policies, practices, and procedures must be consistent with the confidentiality provisions of FERPA, its implementing VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 regulations in 34 CFR part 99, and section 618(b)(1) of IDEA. IV. Expanding the Scope of Comprehensive Coordinated Early Intervening Services Under section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)), 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 three) who have not been identified as needing special education or related services but who need additional academic or behavioral support to succeed in a general education environment. The activities that may be included in implementing these services are: (1) Professional development for teachers and other school staff to enable them to deliver scientifically based academic and behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on the use of adaptive and instructional software; and (2) providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction. Section 613(f)(2) of IDEA (20 U.S.C. 1413(f)(2)). Section 618(d)(2)(B) of IDEA (20 U.S.C. 1418(d)(2)(B)) provides that, in the case of a determination of significant disproportionality, the State or the Secretary of the Interior must require any LEA so identified to reserve 15 percent of its Part B (section 611 and section 619) subgrant, the maximum amount of funds under section 613(f), 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’’ differs from ‘‘CEIS’’ in section 613(f) of IDEA (20 U.S.C. 1413(f)). The Department’s current regulations in 34 CFR 300.646(b)(2) only clarify that funds reserved for comprehensive CEIS must be used to serve particularly, but not exclusively, children from those groups that were significantly overidentified. In OSEP Memorandum 07–09, the Department 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. Thus, we interpreted IDEA as not allowing an LEA identified with significant PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 10979 disproportionality to use funds reserved for comprehensive CEIS to serve preschool children ages three through five, with or without disabilities, or children with disabilities in kindergarten through grade 12. We also did not interpret IDEA as requiring the State, as part of implementing comprehensive CEIS, to identify and address the factors contributing to the significant disproportionality. We now propose to amend the current regulation to interpret the term ‘‘comprehensive’’ in section 618(d)(2)(B) of IDEA to allow any LEA identified with significant disproportionality to expand the use of funds reserved for comprehensive CEIS to serve children from age 3 through grade 12, with and without disabilities. As part of the IDEA Part B LEA Maintenance of Effort (MOE) Reduction and CEIS data collection, States are required to report on the total number of children that 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. This is consistent with the information LEAs are required to report to States under IDEA section 613(f)(4) and 34 CFR 300.226(d). After these regulations are final, the Department is planning to provide guidance on what States must report in the LEA MOE Reduction and CEIS data collection and what LEAs must report to meet the requirement in IDEA section 613(f)(4) and 34 CFR 300.226(d). We also propose to require the LEA, as part of implementing comprehensive CEIS services, to identify and address the factors contributing to the significant disproportionality. These factors may include a lack of access to scientifically based instruction, and they may include economic, cultural, or linguistic barriers to appropriate identification, placement, or disciplinary removal. Comprehensive CEIS may also include professional development and educational and behavioral evaluations, services, and supports. Requiring LEAs to carry out activities to identify and address the factors contributing to the significant disproportionality is consistent with the statutory requirement that LEAs must use funds reserved for comprehensive CEIS to serve children in the LEA, particularly children in those groups that were significantly overidentified. Comprehensive CEIS funds must be used to carry out activities to identify and address the factors contributing to the significant disproportionality. Although not specifically prohibited, we generally would not expect LEAs to use E:\FR\FM\02MRP2.SGM 02MRP2 10980 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules these funds to conduct an evaluation to determine whether a child has a disability or to provide special education and related services already identified in a child’s IEP. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 References Albrecht, S.J., Skiba, R.J., Losen, D.J., Chung, C., & Middleburg, L. (2012). Federal Policy on Disproportionality in Special Education: Is it Moving us Forward? Journal of Disability Policy Studies, 23(1), 14–25. 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. Brooks, K., Schiraldi, V., & Zeidenberg, J. (2000). School house hype: two years later. Washington, DC: Justice Policy Institute/ Covington, KY: Children’s Law Center. Available at http://www.justicepolicy.org/ uploads/justicepolicy/documents/school_ house_hype.pdf. Center for American Progress. (2014). Why We Need a Federal Preschool Investment in 6 Charts. Washington, DC: HerzfeldtKamprath, R. & Adamu, Maryam. Retrieved from https://www.americanprogress.org/ issues/early-childhood/news/2014/12/09/ 102737/why-we-need-a-federal-preschoolinvestment-in-6-charts/. Civil Rights Project. (2000). Opportunities suspended: the devastating consequences of zero tolerance and school discipline policies. Cambridge, MA. Retrieved from http://civilrightsproject.ucla.edu/research/ k-12-education/school-discipline/ opportunities-suspended-the-devastatingconsequences-of-zero-tolerance-andschool-discipline-policies/crpopportunities-suspended-zero-tolerance2000.pdf. De Valazuela, J.S., Copeland, S.R., Huaqing Qi, C., & Park, M. (2006) Examining Educational Equity: Revisiting the Disproportionate Representation of Minority Students in Special Education. Exceptional Children, 72(4), 425–441. 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. Feinberg, E., Silverstein, M., Donahue, S. & Bliss, R. (2011). The impact of race on participation in Part C early intervention services. Journal of Developmental and Behavioral Pediatrics, 32(4), 1–8. Fernald, A., V.A. Marchman, & A. Weisleder. 2013. SES Differences in Language Processing Skill and Vocabulary Are Evident at 18 Months. Developmental Science 16(2), 234–48. Hart, B., & T.R. Risley. (1995). Meaningful Differences in the Everyday Experience of Young American Children. Baltimore, MD: Brookes. Hibel, J., Farkas, G., & Morgan, P. (2010). Who is placed into special education? Sociology of Education, 83(4), 312–332. IDEA Data Center. (2014). Methods for Assessing Racial/Ethnic Disproportionality VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 in Special Education: A Technical Assistance Guide (Revised), Rockville, MD: Bollmer, J., Bethel, J., Munk, T. & Bitterman, A. Lamont, J.H., Devore, C.D., Allison, M., Ancona, R., Barnett, S., Gunther, R., & Young, T. (2013). Out-of-school suspension and expulsion. Pediatrics, 131(3), e1000– e1007. Lee, T., Cornell, D., Gregory, A., & Xitao, F. (2011). High suspension schools and dropout rates for black and white students. Education & Treatment Of Children, 34(2), 167–192. Losen, D.J. & Skiba, R.J. (2010). Suspended education: urban middle schools in crisis. Montgomery, AL: Southern Poverty Law Center. Retrieved from www.splcenter.org/ sites/default/files/downloads/publication/ Suspended_Education.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. Morgan, P.L., Farkas, G., Hillemeir, M.M. & Maczuga, S. (2012). Are Minority Children Disproportionately Represented in Early Intervention and Early Childhood Education? Educational Researcher, 41(9), 339–351. My Brother’s Keeper Task Force. (2014). Report to the President. Washington, DC. Retrieved from www.whitehouse.gov/sites/ default/files/docs/053014_mbk_report.pdf. Ramey, D.M. (2015). The social structure of criminalized and medicalized school discipline. Sociology of Education, 88(3), 1–21. Reynolds, A., Temple, J., Robertson, D., Mann, E. (2001). Long-term effects of an early childhood interventions on educational achievement and juvenile arrest. JAMA, 285(18), 2339–2346, doi:10.1001/jama.285.18.2339. Rosenberg, S., Zhang, D. & Robinson, C. (2008). Prevalence of developmental delays and participation in early intervention services for young children. Pediatrics, 121(6), e1503–e1509, doi;10,1542/ peds.2007–1680. Shankoff, J. & Phillips, D. (Eds.) (2000). From Neurons to Neighborhoods: The Science of Early Childhood Development. Washington, DC: National Academy Press. U.S. Bureau of the Census. (2013). Intercensal Estimates of the Resident Population by Single Year of Age, Sex, Race, and Hispanic Origin for States and the United States: April 1, 2000 to July 1, 2013. Washington, DC. U.S. Department of Education, National Center for Education Statistics. (2012). First-Time Kindergartners in 2010–11: First Findings From the Kindergarten Rounds of the Early Childhood Longitudinal Study, Kindergarten Class of 2010–11 (ECLS– K:2011) (NCES 2012–049). Washington, DC: Mulligan, G.M., Hastedt, S., & McCarroll, J.C. Retrieved from http://nces. ed.gov/pubsearch. U.S. Department of Education, National Center for Education Statistics. ‘‘Common Core of Data (CCD): Local Education PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 Agency Universe Survey, 2011–12 and 2012–13.’’ Retrieved from http://nces.ed. gov/ccd/pubagency.asp. U.S. Department of Education, Office of Special Education Programs. ‘‘Disproportionality of Racial and Ethnic Groups in Special Education.’’ Memorandum OSEP 07–079, April 24, 2007. Retrieved from http://www2.ed.gov/ policy/speced/guid/idea/memosdcltrs/ osep07-09disproportionalityofracialand ethnicgroupsinspecialeducation.doc. 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 http://www2. ed.gov/policy/speced/guid/idea/ceis.html. U.S. Department of Education, Office of Special Education Programs. ‘‘Questions and Answers on Discipline Procedures, Revised June 2009.’’ Washington, DC. Retrieved from http://www2.ed.gov/policy/ speced/guid/idea/discipline-q-a.doc. U.S. Department of Education, Office of Special Education and Rehabilitative Services. (2014). 36th Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act 2014, Washington, DC. Retrieved from www.edpubs.gov/document/ed005594p. pdf?cd=299. U.S. Department of Education, EDFacts Metadata and Process System (EMAPS), OMB #1820 0689: ‘‘IDEA Part B Maintenance of Effort (MOE) Reduction and Coordinated Early Intervening Services (CEIS),’’ 2013. U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB #1875–0240: ‘‘IDEA Part B Child Count and Educational Environments Collection,’’ 2013. 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 http://www. gao.gov/products/GAO-13-137. Valdivia, R. (2006). Disproportionality at the Preschool Level. The Special Edge 20(1), 1. Retrieved from www.calstat.org/ publications/article_detail.php?a_id=67& nl_id=8. Summary of Proposed Changes These proposed regulations address what States must do to identify and address significant disproportionality based on race and ethnicity occurring in States and LEAs in the States. These proposed regulations would— • Add §§ 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; • Add § 300.647(c) to provide the flexibilities that States, at their discretion, may consider when determining whether significant disproportionality exists. States may E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules choose to identify an LEA as having significant disproportionality after an LEA exceeds a risk ratio threshold for up to three consecutive years. A State also has the flexibility not to identify an LEA with significant disproportionality if the LEA is making reasonable progress in lowering the risk ratios even if they are still above the State’s risk ratio thresholds, where reasonable progress is defined by the State; • Amend current § 300.646(b) (proposed § 300.646(c)) to clarify that the remedies in section 618(d)(2) of IDEA are triggered if a State makes a determination of significant disproportionality with respect to disciplinary removals from placement; • Amend 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 FERPA, its implementing regulations in 34 CFR part 99, and section 618(b)(1) of IDEA; and • Amend current § 300.646(b)(2) (proposed § 300.646(d)) to define which student populations 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. The proposed regulations would require that, as part of implementing the comprehensive CEIS, an LEA must identify and address the factors contributing to the significant disproportionality. Significant Proposed Regulations We group major issues according to subject, with sections of the proposed regulations in parentheses. Generally, we do not address proposed regulatory changes that are technical or otherwise minor in effect. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 I. A Standard Methodology for Determining Significant Disproportionality Risk Ratios (Proposed § 300.646(b); § 300.647(a)(2); § 300.647(a)(3); § 300.647(b)(6)) Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) requires every State that receives IDEA Part B funds to collect and examine data to determine if significant disproportionality based on race or ethnicity exists in the State or the LEAs of the State. IDEA does not VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 define ‘‘significant disproportionality’’ or instruct how data must be collected and examined. Current Regulations: Current § 300.646(a) imposes the same requirement as the statute and does not define ‘‘significant disproportionality’’ or instruct how data must be collected or examined. Proposed Regulations: Proposed § 300.646(b) would require that States use a standard methodology to determine whether significant disproportionality based on race or ethnicity exists in the State or in the LEAs of the State. Proposed § 300.647(b) would require the use of risk ratios as part of the standard methodology for determining significant disproportionality. Proposed § 300.647(a)(2) would define ‘‘risk’’ as the likelihood of a particular outcome (identification, placement, or disciplinary removal) for a particular racial or ethnic group within an LEA. Risk is calculated by dividing the number of children from a given racial or ethnic group identified with a disability, placed, or disciplined in the LEA by the total number of children from that racial or ethnic group enrolled in schools in the LEA. Proposed § 300.647(a)(3) would define ‘‘risk ratio’’ as the risk of an outcome for one racial or ethnic group in an LEA as compared to the risk of that outcome for all other racial and ethnic groups in the same LEA. Risk ratio is calculated by dividing the risk for children in one racial or ethnic group within an LEA by the risk of that same outcome for all other racial or ethnic groups within that LEA. Reasons: The Department proposes to require the use of this common analytical method for determining significant disproportionality to increase transparency in LEA identification across States for LEA, State, and Federal officials, as well as the general public. The Department proposes to require that States use the most common analytical method in use among the States during SY 2013–2014. Based on the SY 2013–14 SSS, 45 States use one or more forms of the risk ratio and, of these, 39 use the risk ratio as their sole method for determining significant disproportionality. We acknowledge that most of the methods currently in use by States, including the risk ratio, have benefits and drawbacks. In selecting a method, the Department prioritized methods that LEAs and members of the public could easily interpret and those that would create the least disturbance in States’ current methodologies for determining significant disproportionality. At the PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 10981 same time, we closely examined each method’s strengths and weaknesses in identifying disparities by race and ethnicity. The risk ratio is the method that would create the least burden for States and provide the public with information that is easily interpreted (a comparison of the risk of an outcome). We also found that the potential drawbacks of the risk ratio method’s utility in identifying disparities (i.e., volatility when applied to small populations, inability to calculate when risk to a comparison group is zero) can be minimized through the use of minimum cell sizes, multiple years of data, and, when needed, alternative forms of the risk ratio. In examining other methods, the Department found none that contain a balance of transparency, limited burden, and utility similar to the risk ratio. With respect to transparency and ease of comprehension, the alternate risk ratio (identical to the risk ratio, but with State-level data as the comparison group), the risk difference (another comparison of the risk of an outcome), and the composition methods (a comparison of representation in two contexts) are similar to the risk ratio. Additionally, the alternate risk ratio and risk difference methods can be used when risk to an LEA-level comparison group is zero. However, these methods are rarely used among the States. Further, the alternate risk ratio method uses State-level data in place of LEA-level data to compare risk to racial and ethnic groups. In cases where LEAlevel data are available and reliable, the Department determined that these numbers are preferable to State data. While the weighted risk ratio method is used in approximately half of the States, it is relatively more complex because it uses State-level demographic information to add weights to the standard risk ratio. Of the possible methodologies that the Department might require States to use, we believe that the risk ratio would provide the greatest utility while resulting in the least burden on, and disturbance of, States’ current methodologies for determining significant disproportionality. Categories of Analysis (Proposed § 300.647(b)(3) and (4)) Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)(A)–(C)) requires States to determine whether significant disproportionality based on race or ethnicity exists in the State or the LEAs of the State with respect to identifying children as children with disabilities; identifying children as children with E:\FR\FM\02MRP2.SGM 02MRP2 10982 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules disabilities in accordance with a particular impairment; placing children with disabilities in particular educational settings; and the incidence, duration, and type of disciplinary actions, including suspensions and expulsions. Current Regulations: Current § 300.646(a) includes the same requirements as the statute. Proposed Regulations: Proposed § 300.647(b)(3)(i)–(ii) and (b)(4)(i)–(viii) would provide additional specificity to the three categories of analysis required by IDEA and current § 300.646(a). These sections would impose no new data collection requirements upon States. Rather, the regulations would require States to use data they already collect, analyze, and report to the Department to identify significant disproportionality in LEAs. For each of the enumerated racial and ethnic groups in an LEA, States would calculate the risk ratio for the identification of children ages 3 through 21 as children with disabilities and the risk ratio for identification of children ages 3 through 21 as children with— • • • • • • Intellectual disabilities; Specific learning disabilities, Emotional disturbance; Speech or language impairments; Other health impairments; and Autism. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 For children with disabilities in each racial and ethnic group, States would calculate the risk ratio for placements into particular educational settings, including disciplinary removals— • For children ages 6 through 21, inside a regular class more than 40 percent of the day and less than 79 percent of the day; • For children ages 6 through 21, inside a regular class less than 40 percent of the day; • For children ages 6 through 21, inside separate schools and residential facilities, not including homebound or hospital settings, correctional facilities, or private schools; • For children ages 3 through 21, out-ofschool suspensions and expulsions of 10 days or fewer; • For children ages 3 through 21, out-ofschool suspensions and expulsions of more than 10 days; • For children ages 3 through 21, in-school suspensions of 10 days or fewer; • For children ages 3 through 21, in-school suspensions of more than 10 days; and • For children ages 3 through 21, disciplinary removals in total, including inschool and out-of-school suspensions, expulsions, removals by school personnel to an interim alternative education setting, and removals by a hearing officer. Reasons: It is the Department’s intention to create greater uniformity among States in the metrics used to make determinations of significant disproportionality and, at the same VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 time, disturb States’ current operations as little as possible. The calculations we would require reflect the guidance for collecting and analyzing data for determining significant disproportionality that was provided to the States in the July 28, 2008, OSEP Memorandum 08–09 to Chief State School Officers and State Directors of Special Education. These calculations also have been established, following notice and comment, in OMB-approved data collections 1875–0240 and 1820– 0517. As explained in OSEP Memorandum 08–09, the Department does not deem disproportionality for a given metric to be significant when there are very small numbers of children involved, as is the case with certain impairments, including deaf-blindness, developmental delay, hearing impairments, multiple disabilities, orthopedic impairments, traumatic brain injuries, and visual impairments. The Department’s proposed § 300.647(b)(3)(ii) includes 6 of the 13 impairments listed in 34 CFR 300.8(c), representing nearly 93 percent of all children with disabilities in SY 2012. (36th Annual Report to Congress, 2014.) Similarly, the Department does not propose to require States to analyze data for children who received special education and related services in homebound or hospital settings, correctional facilities, or in private schools (as a result of parental placement of the child in a private school) because those numbers are typically very small and an LEA generally has little, if any, control over these placements. The OSEP Memorandum 08–09 provides further justification of the Department’s new requirements regarding calculation of significant disproportionality for placement. As IDEA requires children with disabilities to be placed in the least restrictive environment (LRE), the first placement option to be considered is the regular classroom with appropriate supplementary aides and services. For that reason, the Department proposes that States analyze disparities in placement in the regular classroom for less than 79 percent of the day, which is one of the long-standing categories States use to report educational environment data under section 618 of IDEA. As States are currently required to annually collect and submit these data to the Department under section 618(a)(1) of IDEA, the Department anticipates that using these data to determine significant disproportionality will take minimal additional capacity. PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 Risk Ratio Thresholds (Proposed § 300.647(a)(4); § 300.647(b)(1); § 300.647(b)(2) and (6)) Statute: None. Current Regulations: None. Proposed Regulations: Proposed § 300.647(a)(4) would define ‘‘risk ratio threshold’’ as the threshold over which disproportionality based on race or ethnicity is significant under proposed § 300.646(a) and (b). Proposed § 300.647(b)(1) would require States to set reasonable risk ratio thresholds for each of the categories described in the proposed §§ 300.647(b)(3) and (4). Proposed § 300.647(b)(1)(i) would require that risk ratio thresholds are based on advice from stakeholders, including their State Advisory Panels. Proposed § 300.647(b)(1)(ii) would require that risk ratio thresholds be subject to monitoring and enforcement for reasonableness by the Secretary, consistent with section 616 of the Act. Proposed § 300.647(b)(2) would require States to apply the risk ratio thresholds to risk ratios (or alternate risk ratios, as appropriate) to each of the categories described in the proposed § 300.647(b)(3) and (4) and to the following racial and ethnic groups within each category: Hispanic/Latino of any race; and, for individuals who are non-Hispanic/Latino only, American Indian/Alaska Native; Asian; Black/ African American; Native Hawaiian or Other Pacific Islander; White; and two or more races. Proposed § 300.647(b)(6) would require States to identify as having significant disproportionality any LEA where the risk ratio for any racial or ethnic group in any category of analysis in proposed § 300.647(b)(3) and (4) is above the risk ratio threshold set by the State for that category. Reasons: Using a risk ratio to determine significant disproportionality necessitates setting a threshold that marks the boundary between disproportionality and significant disproportionality. The Department proposes limitations and requirements for establishing risk ratio thresholds to address current State practices. These proposed regulations are also intended to encourage States to differentiate LEAs with some disproportionality from LEAs with significant disproportionality. It is noteworthy that in SY 2012–2013, 21 States did not identify significant disproportionality in any LEAs. Given the degree of disproportionality across all States, the Department is concerned that a number of States using risk ratios may have, intentionally or E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules unintentionally, set thresholds high enough to effectively nullify the statutory requirement that they identify LEAs with significant disproportionality. To address this, proposed § 300.647(b)(1)(ii) requires that a risk ratio threshold be reasonable and subject to Departmental monitoring and enforcement. By requiring that States abide by a standard of reasonableness, the Department may initiate enforcement action against a State that selects an unreasonable risk ratio threshold. There are a number of factors that may influence whether a risk ratio threshold is reasonable for the State. For example, the Department may determine that a State has selected a reasonable threshold if it is likely to lead to a reduction in disparities on the basis of race or ethnicity or if it results in identification of LEAs in greatest need of intervention. By contrast, the Department may determine that a State has selected an unreasonable risk ratio threshold if it avoids identifying any LEAs (or significantly limits the identification of LEAs) with significant disparities 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. While a number of States rely on statistical significance tests and confidence intervals to set risk ratio thresholds, there may be some cases in which these may be unreasonable when compared with racial and ethnic disparities in the LEAs of the State. In States with non-normal distributions of LEA risk ratios, individual LEAs that significantly deviate from the typical range of risk ratios in other LEAs in the State (i.e., outliers), or a small number of total LEAs, a risk ratio threshold set two standard deviations above the Statewide average risk ratio may fail to identify LEAs in which significant racial or ethnic discrepancies exist in the identification, placement, and/or discipline of students with disabilities. Solely because a risk ratio threshold is the result of an objective calculation does not guarantee that the resulting threshold itself would be considered reasonable when it is compared to the racial and ethnic disparities taking place at the LEA level. Further, for States that identified no LEAs with significant disproportionality in SY 2012–2013, a standard of reasonableness will help to determine whether the State’s choice of risk ratio threshold was appropriate. For example, 10983 selection of a risk ratio threshold that results in no determination of significant disproportionality may nonetheless be reasonable if a State has little or no overrepresentation on the basis of race or ethnicity. Put another way, a risk ratio threshold under which no LEAs are determined to have significant disproportionality could be reasonable if there is little or no overrepresentation on the basis of race or ethnicity in the LEAs of the State, much less significant disproportionality. In a case where a State does have some degree of racial or ethnic disparities, a risk ratio threshold that results in no determination of significant disproportionality may nonetheless be reasonable if none of its LEAs are outliers in a particular category when compared to other LEAs nationally. There are many ways that a State might make this comparison, and we provide one example here. For identification, we used IDEA section 618 data to, first, calculate a national median risk ratio based on LEA-level risk ratios, and, second, identify outlier LEAs based on the national median. The Department repeated this procedure for placement and disciplinary removal to develop 15 risk ratio thresholds, as outlined in Table 7. TABLE 7—NUMBER AND PERCENTAGE OF LEAS EXCEEDING A RISK RATIO THRESHOLD, EQUALING TWO MEDIAN ABSOLUTE DEVIATIONS ABOVE THE MEDIAN OF ALL LEAS,ab IN SY 2011–12, SY 2012–13, AND SY 2013–14 Percent of LEAs d exceeding the risk ratio threshold for three years (SY 2011–12, SY 2012–13, and SY 2013–14) All disabilities ........................................................................................................................................... Autism ...................................................................................................................................................... Emotional disturbance ............................................................................................................................. Intellectual disabilities .............................................................................................................................. Other health impairments ........................................................................................................................ Specific learning disabilities ..................................................................................................................... Speech or language impairments ............................................................................................................ Inside regular class 40 percent through 79 percent of the day .............................................................. Inside regular class less than 40 percent of the day .............................................................................. Separate settings ..................................................................................................................................... In-school suspensions ≤10 days ............................................................................................................. In-school suspensions >10 days ............................................................................................................. Out-of-school suspensions/expulsions ≤10 days .................................................................................... Out-of-school suspensions/expulsions >10 days .................................................................................... Total removals .................................................................................................................................. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Metrics used to measure three categories of analysis (identification, placement, and disciplinary removals) Risk ratio threshold (based on two median absolute deviations above the median for LEA risk ratios c 1.67 2.41 2.96 2.48 2.38 1.97 2.03 ................................ 1.65 2.13 1.97 2.94 2.01 3.00 1.87 16.7 11.9 9.2 12.8 11.5 15.2 10.6 ................................ 5.1 3.1 3.5 0.5 5.7 1.3 6.9 aN = 17,371 LEAs. LEAs in one State, for any of the identification metrics, and all but one LEA in a second State, for the disciplinary removal metrics. and MADs exclude risk ratios of 0. d Only includes LEAs with outlier risk ratios for those racial and ethnic groups with at least 10 children. b Excludes c Medians Additional information regarding the Department’s example may be found at http://www2.ed.gov/programs/osepidea/ VerDate Sep<11>2014 19:18 Mar 01, 2016 Jkt 238001 618-data/LEA-racial-ethnic-disparitiestables/index.html. In proposing § 300.647(b)(1)(ii), it is the Department’s intention that the PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 States’ selection of risk ratio thresholds be subject to a Departmental monitoring and enforcement for reasonableness. If E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 10984 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules the Department identifies a State that may have an unreasonable threshold, it would notify the State and request clarification regarding how the State believes the selection of risk ratio thresholds is reasonable. If a State provides an insufficient response, the Department would notify the State that it is not in compliance with the IDEA regulation requiring the State to set a reasonable risk ratio threshold, and the Department would take an 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. The Department anticipates that the requirement of reasonableness in proposed § 300.647(b)(1) will not only help ensure the statutory requirement is meaningful but will also result in States requiring those LEAs with the largest disparities to direct resources to identify and correct practices that may violate not just IDEA but also Federal civil rights laws that prohibit discrimination on the basis of race, color, and national origin, such as Title VI of the Civil Rights Act of 1964. Nothing in this proposed regulation will limit or insulate an LEA or SEA from enforcement action under other statutes. Proposed § 300.647(b)(1) would require States to select reasonable risk ratio thresholds that effectively identify LEAs with large racial and ethnic disparities, so that their policies, practices, and procedures may be reviewed consistent with section 618(d)(2)(A) of IDEA. This valuable self-examination may, depending upon the factual circumstances in the State or the LEA, reduce the risk of further compliance concerns. Proposed § 300.647(b)(1)(i) would clarify the role of the State Advisory Panel in determining the risk ratio thresholds. Under section 612(a)(21)(D) of IDEA (20 U.S.C. 1412(a)(21)(D)), 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 SEAs will submit to the Department under section 618 of IDEA—including the LEAs identified with significant disproportionality and the reason for the identification—the State Advisory Panel should have a meaningful role in advising the SEA on these selections. Proposed § 300.647(b)(1) would clarify that States may set a different VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 risk ratio threshold for each of the categories in proposed § 300.647(b)(3) and (4). States may need different thresholds in order to reasonably identify significant disproportionality for categories with different degrees of disparity. For example, if the LEAs in a State, on average, identify any one racial or ethnic group for emotional disturbance at a rate three times that of all other children but use disciplinary removals for any one racial or ethnic group at a rate five times that of all other children, the State may find it difficult to set a single threshold that would be reasonable for both emotional disturbance and disciplinary removals. In directed question 9, the Department has requested public comment on the proposed requirements regarding the development and application of risk ratio thresholds. The use of different risk ratio thresholds for different racial and ethnic groups may be constitutionally impermissible. Lastly, proposed § 300.647(b)(2) would provide a complete list of the racial and ethnic groups that each State must analyze as part of the approach to defining and identifying significant disproportionality. This list of racial and ethnic groups is the same list of groups required for States’ current IDEA section 618 data submissions, as explained in the Department’s Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the U.S. Department of Education. 72 FR 59266 (October 19, 2007). Again, within these guidelines, there are many ways a State may set reasonable risk ratio thresholds. For example, States may choose an appropriate value based on previous experience with particular thresholds (e.g., if, in the past, LEAs with risk ratios above 2.5 were, after a review of policies, practices, and procedures, found to be non-compliant with the requirements of IDEA, while those under that threshold were generally not), or they may calculate the value using a data analysis that complies with proposed § 300.647(b)(2). Minimum Cell Sizes (Proposed § 300.647(b)(3) and (4)) Statute: None. Current Regulations: None. Proposed Regulations: Proposed § 300.647(b)(3) and (4) would require a minimum cell size no greater than 10 for risk ratio calculations. Specifically, to determine significant disproportionality in identification, States would calculate, for each LEA, risk ratios for all racial and ethnic groups that include a minimum number of children not larger than 10. To determine significant PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 disproportionality in placement, including disciplinary removals from placement, States would calculate, for each LEA, risk ratios for all racial and ethnic groups that include a minimum number of children with disabilities not larger than 10. Reasons: The proposal to use a minimum cell size no greater than 10 would ensure that States examine as many racial and ethnic groups for significant disproportionality in as many LEAs as possible while minimizing the effect that minor variations in the number of children in a given racial or ethnic group, or in the comparison group, have on LEAs risk ratios. For example, the graduation of a relatively small number of children with disabilities, while not reflecting any change in the policies, practices, and procedures of the LEA, could result in a large change in the calculated risk ratio for a particular category of analysis, particularly if those graduating children represented a sizable proportion of the total number of children with disabilities in a given racial or ethnic group. The minimum cell size included in proposed § 300.647(b)(3) and (4) would allow States to exclude certain LEAs from a determination of significant disproportionality based on the number of children in the racial or ethnic group of interest and the number of children with disabilities in the racial or ethnic group of interest. For example, if an LEA has fewer than 10 Hispanic/Latino children, then the State may choose to exclude that LEA from a determination of whether significant disproportionality exists in the identification of Hispanic/Latino children. If an LEA has fewer than 10 Hispanic/Latino children with disabilities, then the State may choose to exclude that LEA from a determination of whether significant disproportionality exists in the placement or disciplinary removal of Hispanic/Latino children with disabilities. 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 cell size is too small, more LEAs would be included in the analysis, but the likelihood of dramatic, 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 disparities as there might be. E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Current research demonstrates that a minimum cell size of 10 provides for a reasonable analysis without excluding too many LEAs from a determination of whether significant disproportionality on the basis of race exists. (Bollmer, et al., 2007; IDEA Data Center 2014). Alternate Risk Ratios (Proposed § 300.647(a)(1); § 300.647(b)(5)) Statute: None. Current Regulations: None. Proposed Regulations: Proposed § 300.647(b)(5) would require States to use the alternate risk ratio in place of the risk ratio when, for any analysis category, an LEA has fewer than 10 children in the comparison group—all other racial and ethnic groups in the LEA—or the risk for children in all other racial and ethnic groups is zero. Proposed § 300.647(a)(1) would define ‘‘alternate risk ratio.’’ Like risk ratio, alternate risk ratio measures the risk of an outcome for one racial or ethnic group in the LEA, but compares it to the risk of that outcome for all other racial and ethnic groups in the State, not all other racial and ethnic groups in the LEA. An alternate risk ratio is calculated by dividing the risk for children in one racial or ethnic group within an LEA by the risk of that same outcome for all other racial or ethnic groups within the State. Reasons: As explained in the discussion of minimum cell sizes, a risk ratio can produce more volatile results when applied to small numbers. Setting an appropriate minimum cell size is one way of addressing this limitation when there are too few children in the racial or ethnic group of interest. However, when an LEA has too few children in the comparison group—fewer than 10— experts recommend the use of the alternate risk ratio. (Bollmer, et al., 2007.) With the alternate risk ratio, the State population replaces the LEA population for the comparison group, permits the calculation, and produces results that are less volatile. Further, a risk ratio cannot be calculated at all if there are no children in the comparison group, or if the risk to children in the comparison group is zero (because a number cannot be divided by zero). In these specific cases, the Department has proposed to require States to use the alternate risk ratio as the method for measuring disparities in the LEA. Flexibilities (Proposed § 300.647(c)) Statute: None. Current Regulations: None. Proposed Regulations: Proposed § 300.647(c) would provide States with additional flexibility in making determinations of significant VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 disproportionality. In proposed § 300.647(c)(1), although States would still calculate annual risk ratios for their LEAs, they would have the flexibility to identify only those LEAs that exceed the risk ratio threshold for a number of consecutive years, but no more than three. Proposed § 300.647(c)(2) would allow States not to 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 from the immediate preceding year. Reasons: It is the Department’s intention to reduce the likelihood that LEAs will be inappropriately identified with significant disproportionality by allowing States the flexibility to identify only those LEAs showing significant racial and ethnic disparities over a number of consecutive years. Measures of disproportionality can be variable if the number of children included in the analysis is small, as may be the case in small LEAs or in LEAs with a small racial or ethnic subgroup. However, LEAs are less likely to be identified based on volatile data if multiple years of data are taken into consideration. (IDEA Data Center, 2014.) This flexibility also adopts an existing common practice among States. Based on the SY 2013–14 SSS, 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. The Department proposes to allow States to use up to three prior consecutive years of data before an LEA is identified, which reflects the current most common practice among the States. States using this flexibility must use data from prior school years to determine whether any LEAs in their State should be identified as having significant disproportionality in the first (or second, as appropriate) year after the proposed regulation is adopted. Finally, with this regulation, the Department intends to empower States to focus their attention on those LEAs in which the level of disproportionality is not decreasing. We intend to allow States to leave undisturbed IDEA Part B funds that may be achieving the goal of reducing disparities in certain LEAs, as evidenced by reasonable progress determined by the State, in lowering their risk ratio, even though the LEA has a risk ratio that exceeds the State’s risk ratio threshold. PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 10985 II. Clarification That Statutory Remedies Apply to Disciplinary Actions (Proposed § 300.646(a)(3) and (c)) Statute: Section 618(d)(1)(C) of IDEA (20 U.S.C. 1418(d)(1)(C)) specifies that a State must provide for the collection and examination of data with respect to the incidence, duration, and type of disciplinary actions, including suspension and expulsions, to determine if significant disproportionality with respect to race and ethnicity is occurring in the State or the LEAs of the State. Section 618(d)(2) of IDEA (20 U.S.C. 1418(d)(2)) specifies the actions a State must take if it finds significant disproportionality based on race or ethnicity in the identification of children as children with disabilities or in their placement in particular educational settings. A State must provide for the review and, if appropriate, revision of the policies, practices, and procedures used in the identification or placement to ensure that these policies, practices, and procedures comply with the requirements of IDEA. The State must also require any LEA identified with significant disproportionality to reserve 15 percent of its IDEA Part B subgrant to provide comprehensive CEIS to children in the LEA, particularly children in those groups that were significantly overidentified, and require the LEA to publicly report on the revision of policies, practices, and procedures. Current Regulations: Current § 300.646(a)(1) and (b)(1) restate the statute largely verbatim. Current § 300.646(a)(1) requires LEAs to provide comprehensive CEIS particularly, but not exclusively, to children in those groups that were significantly overidentified. Proposed Regulations: Proposed § 300.646(a)(3) would clarify that disciplinary actions under IDEA are considered removals from current placement, which is consistent with current § 300.530. Proposed § 300.646(c) would clarify that the State must implement the statutory remedies in section 618(d)(2) to address significant disproportionality with respect to disciplinary removals from placement. Reasons: Ensuring that States implement the statutory remedies will help address significant disproportionality in disciplinary removals from placement. Proposed § 300.646(c) is based, in part, on the use of the term ‘‘placement’’ in the introductory paragraph of section 618(d)(2). The Department reads the term ‘‘placement’’ to include E:\FR\FM\02MRP2.SGM 02MRP2 10986 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 disciplinary removals of children with disabilities from their current placement, in accordance with section 615(k)(1) of IDEA (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). To the extent that section 618(d)(2) of IDEA specifies the remedies that States and LEAs must implement following a determination of significant disproportionality with respect to placement, the Department seeks to clarify that these remedies also follow a determination of significant disproportionality with respect to disciplinary removals from placement of any duration. This reading of ‘‘placement’’ aligns with OSERS’ prior interpretations and guidance both on this issue—as outlined in the OSEP Questions and Answers on Discipline Procedures, Revised June 2009—and the determination required under section 618(d)(1). III. Clarification of the Review and Revision of Policies, Practices, and Procedures (§ 300.646(c)) Statute: Section 618(d)(2)(A) (20 U.S.C. 1418(d)(A)) requires the State or the Secretary of Interior to provide for the review, and if appropriate, revision of policies, practices, and procedures to ensure compliance with the requirements of IDEA. Section 618(d)(2)(C) (20 U.S.C. 1418(d)(C)) requires LEAs identified as having significant disproportionality to publicly report on any revisions to policies, practices, and procedures. Current Regulation: Current § 300.646(b)(1) and (3) restate the statute largely verbatim. Proposed Regulation: Proposed § 300.646(c)(1) would clarify that the review of policies, practices, and procedures must be conducted in every year in which any LEA is identified as having significant disproportionality. Proposed § 300.646(c)(2) would restate the statutory requirement that, in the case of a determination of significant disproportionality, the LEA must publicly report on the revision of VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 policies, practices, and procedures and add new language requiring that the report be consistent with the confidentiality provisions of FERPA and its implementing regulations in 34 CFR part 99, and section 618(b)(1) of IDEA. Reasons: While the Department interprets section 618(d)(2)(A) of IDEA to require States to provide for an annual review of policies, practices, and procedures resulting from a determination of significant disproportionality, the requirement that LEAs identified in multiple years must review their policies, practices, and procedures every year in which they are identified with significant disproportionality is not sufficiently clear in the current regulation. When LEAs review and revise their policies, practices, and procedures, and publicly report on those revisions, there is a risk of disclosing personally identifiable information, particularly if the subgroup under examination is particularly small (e.g., 10 American Indian/Alaska Native children in an LEA, five of whom are children with disabilities). To reduce the risk of disclosing personally identifiable information, we have proposed § 300.646(c)(2) to clarify that LEA reporting on the revision of policies, practices, and procedures be consistent with the confidentiality provisions of FERPA, its implementing regulations in 34 CFR part 99, and section 618(b)(1) reporting requirements. IV. Expanding the Scope of Comprehensive Coordinated Early Intervening Services (§ 300.646(d)) Statute: Section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)) requires any LEA identified as having significant disproportionality to reserve the maximum amount of funds under section 613(f) to provide comprehensive CEIS to serve children in the LEA, ‘‘particularly children in those groups that were significantly overidentified.’’ Current Regulation: There are minor differences between the statutory language and current § 300.646(b)(2). Current § 300.646(b)(2) requires comprehensive CEIS for children in the LEA, ‘‘particularly, but not exclusively, children that were significantly overidentified.’’ Proposed Regulation: Proposed § 300.646(d)(1) and (2) would amend current § 300.646(b)(2) to require the State to permit an LEA identified with significant disproportionality to provide comprehensive CEIS to preschool children ages 3 through 5, with or without disabilities, and children with disabilities in kindergarten through grade 12. The proposed regulation PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 would also require the LEA, as part of implementing comprehensive CEIS, to identify and address the factors contributing to the significant disproportionality, which may include a lack of access to evidence-based instruction and economic, cultural, or linguistic barriers to appropriate identification, placement, or disciplinary removal. Proposed § 300.646(d)(3) would prohibit LEAs from limiting the provision of comprehensive CEIS to children with disabilities. In directed question 10, the Department has requested public comment regarding restrictions on the use of comprehensive CEIS for children already receiving services under Part B of the IDEA. Reasons: We have determined it is appropriate to expand the population of children that can be served with IDEA Part B funds reserved for comprehensive CEIS to include children with disabilities (while prohibiting the exclusive use of comprehensive CEIS for children with disabilities) and preschool children with and without disabilities. We have also determined that it is appropriate to require LEAs, in implementing comprehensive CEIS, to identify and address the factors contributing to the significant disproportionality. Regarding the use of comprehensive CEIS for children with disabilities, commenters responding to the June 2014 RFI noted that providing comprehensive CEIS only to children without disabilities is unlikely to address racial and ethnic disparities in the placement or disciplinary removal of children with disabilities. Commenters specifically questioned how comprehensive CEIS could address significant disproportionality in an LEA as to placement if IDEA Part B funds reserved for comprehensive CEIS can only be used for children who are not currently identified as needing special education and related services. The Department agrees with the commenters and proposes to allow LEAs to use IDEA Part B funds reserved for comprehensive CEIS to serve children with disabilities in order to provide services that address factors contributing to significant disproportionality related to placement, including disciplinary removals from placement. However, recognizing the statutory emphasis on early behavioral and academic supports and services before children are identified with a disability, the Department proposes to prohibit LEAs from limiting services solely to children with disabilities. E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules Regarding the use of comprehensive CEIS for preschool children, the Department notes that there is robust research supporting the conclusion that the early childhood years are a critical period in the development of children’s language, social, and cognitive skills. (National Research Council and Institute of Medicine, 2000.) A child’s early years set the foundation for later school success. Providing engaging and supportive learning opportunities as early as possible, particularly for children with and at risk for, delays and disabilities, can change developmental trajectories and set children on a path for achieving expected developmental and learning outcomes. Participation in preschool programs is also associated with significantly lower rates of special education services between the ages of 6 and 18. (Reynolds et al., 2001.) When young children enter kindergarten with skills behind their same age peers, they often have difficulty catching up and instead fall further behind. Disparities in early literacy skills put many children at risk for diminished later school success. By 18 months of age, gaps in language development have been documented when comparing children from low-income families to their more affluent peers. (Fernald, Marchman, & Weisleder 2013; Hart and Risely, 1995.) Additionally, scores on reading and math were lowest for firsttime kindergartners in households with incomes below the Federal poverty level and highest for those in households with incomes at or above 200 percent of the Federal poverty level. (Mulligan, Hastedt, & McCarroll, 2012.) Racial disparities have also been identified in the early literacy and math skills of children entering kindergarten with White children, on average, having higher reading and math scores than children of color with the exception of Asian children. (Mulligan, Hastedt, & McCarroll, 2012.) Research has underscored the critical role high-quality preschool programs can play to help address these disparities by providing a variety of rich early learning experiences and individualized supports needed to foster children’s development and learning. However, Black/African-American children and children from low-income families are the most likely to be in lowquality settings and the least likely to be in high-quality settings. (Center for American Progress, 2014.) In one large State, Hispanic/Latino children make up two-thirds of children entering kindergarten, but, of all racial and ethnic groups, are least represented in the State’s preschool programs. (Valdivia, 2006.) VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 Additionally, research suggests that there are racial disparities in the receipt of early intervention and early childhood special education services. For example, researchers found that racial disparities emerged by 24 months of age. African-American children are almost five times less likely to receive early intervention services under Part C of IDEA, and by 48 months of age, African-American children are disproportionately underrepresented in preschool special education services. (Feinberg et al., 2011; Rosenberg et al., 2008; Morgan et al., 2012.) Providing high-quality early intervention services can increase children’s language, cognitive, behavioral, and physical skills and improve their long-term educational outcomes. (Morgan, Farkas, Hillemeir & Maczuga, 2012.) Finally, data indicate that specific groups of children are being disproportionately expelled and suspended from their early learning settings, a trend that has remained virtually unchanged over the past decade. Children most in need of the benefits of preschool programs are the ones most often expelled from the system. Recent data indicate that African-American boys make up 18 percent of preschool enrollment but 48 percent of preschoolers suspended more than once. Hispanic/Latino and AfricanAmerican boys combined represent 46 percent of all boys in preschool but 66 percent of their same-age peers who are suspended (see http://www2.ed.gov/ policy/gen/guid/school-discipline/ policy-statement-ece-expulsionssuspensions.pdf). While more research is needed to understand the impacts of disciplinary removal on preschool children, research shows the detrimental impacts on their older peers. Expulsion and suspension early in a child’s education predicts expulsion or suspension in later grades. (Losen and Skiba, 2010.) Children who are expelled or suspended are as much as 10 times more likely to experience academic failure and grade retention. (Lamont et al., 2013.) Using IDEA Part B funds to provide comprehensive CEIS to preschool children with or without disabilities may help improve early intervening services available and over time reduce significant disproportionality. Specifically, IDEA Part B funds reserved for comprehensive CEIS could be used to implement program-wide models of interventions, such as positive behavioral interventions and supports and response to intervention, to increase the quality of the learning environment for all preschool children and provide explicit instruction and individualized PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 10987 interventions for those who need additional support. Comprehensive CEIS could also be used to increase the capacity of the workforce to support all children’s cognitive, social-emotional, and behavioral health. For example, early childhood personnel could receive specific professional development on promoting children’s social-emotional and behavioral health or ensuring that children with disabilities receive appropriate accommodations to support their full participation in inclusive classrooms. Additionally, comprehensive CEIS could be used to train preschool program staff to conduct developmental screenings and make appropriate referrals to ensure that children are linked to services and receive supports as early as possible, minimizing the negative impact of developmental delays and maximizing children’s learning potential. Using IDEA Part B funds to provide comprehensive CEIS to preschool children with and without disabilities may help provide highquality preschool services and promote targeted workforce professional development focused on promoting the social-emotional and behavioral health of all children. Requiring LEAs to use funds reserved for comprehensive CEIS to carry out activities to identify and address the factors contributing to the significant disproportionality may ensure that LEAs are using these funds to focus on activities designed to address the significant disproportionality. Directing LEAs to target the use these funds in this manner is consistent with the statutory purpose of the reservation of funds, which is to serve children in the LEA, particularly children in those groups that were significantly overidentified. In sum, we believe that allowing LEAs also to use IDEA Part B funds to provide comprehensive CEIS to preschool children ages three through five, with or without disabilities, to children with disabilities in kindergarten through grade 12, and requiring LEAs to identify and address factors contributing to the significant disproportionality, is consistent with the purposes of the statutory remedies, which are designed to assist LEAs in addressing significant disproportionality in identification, placement, and disciplinary removal. Directed Questions The Department seeks additional comment on the questions below. (1) The Department notes that a number of commenters responding to the RFI expressed concern that the use E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 10988 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules of a standard methodology to determine significant disproportionality may not be appropriate for certain types of LEAs. How should the proposed standard methodology apply to an LEA that may be affected by disparities in enrollment of children with disabilities (e.g., LEAs that house schools that only serve children with disabilities and school systems that provide specialized programs for children with autism or hearing impairments, etc.)? (2) The Department is particularly interested in comments regarding strategies to address the shortcomings of the risk ratio method, which the Department has proposed to require States to use to determine significant disproportionality. While this method is the most common method in use among the States, the Department is aware that other methods may have advantages and disadvantages. Risk ratios are influenced by the number of children in an LEA and in the racial or ethnic group of interest. In cases where the risk to a comparison group is zero, it is not possible to calculate a risk ratio. The Department has proposed a number of strategies to address the drawbacks of the risk ratio, including a minimum cell size and flexibility with regard to the number of years of data a State may take into account prior to making a determination of significant disproportionality. In addition, the Department has proposed that States use an alternate risk ratio in specific circumstances when the risk ratio cannot be calculated. Should the Department allow or require States to use another method in combination with the risk ratio method? If so, please state what limitation of the risk ratio method does the method address, and under what circumstances should the method be allowed or required. (3) The Department has proposed to require States to determine whether there is significant disproportionality with respect to the identification of children as children with intellectual disabilities, specific learning disabilities, emotional disturbance, speech or language impairments, other health impairments, and autism. Because the remaining impairments described in section 602(3) of IDEA typically have very small numbers of children, the Department does not deem disproportionality in the number of children with these impairments to be significant. Similar to impairments with small numbers of children, should the Department exclude any of the six impairments included in the proposed § 300.647(b)(3)? If so, which VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 impairments should be removed from consideration? Alternatively, should the Department include additional impairments in § 300.647(b)(3)? (4) Consistent with OSEP Memorandum 08–09, the Department has proposed to require States to determine whether there is significant disproportionality with respect to selfcontained classrooms (i.e., placement inside the regular classroom less than 40 percent of the day) and separate settings (i.e., separate schools and residential facilities), as these disparities suggest that a racial or ethnic group may have less access to the LRE to which they are entitled under section 612(a)(5) of IDEA. Should the Department also require States to determine whether there is significant disproportionality with respect to placement inside the regular classroom between 40 percent and 79 percent of the day, as proposed in this NPRM? (5) The Department has proposed to require States to develop risk ratio thresholds that comply with specific guidelines (i.e., States must select a reasonable threshold and consider the advice of stakeholders). We have proposed these guidelines in lieu of a mandate that all States use the same risk ratio thresholds. At this time, the Department does not intend to set mandated risk ratio thresholds and proposes that States should retain the flexibility to select risk ratio thresholds that best meet their needs. However, we seek the public’s perspective on whether a federally-mandated threshold is appropriate and, if so, what that threshold should be. This information may inform potential future regulatory efforts to address racial and ethnic disparities under section 618(d) of IDEA. As noted above, the Department has no intention to set a federallymandated threshold through this current regulatory action. Further, we seek the public’s perspective as to what risk ratio thresholds the Department might consider as ‘‘safe harbor’’ when reviewing State risk ratio thresholds for reasonableness. Should the Department, at a future date, mandate that States use the same risk ratio thresholds? If so, what risk ratio thresholds should the Department mandate? What is the rationale or evidence that would justify the Department’s selection of such risk ratio thresholds over other alternatives? Lastly, what safe harbor should the Department create for risk ratio thresholds that States could voluntarily adopt with the knowledge that it is reasonable pursuant to this proposed regulation? Public comments regarding this last question may be used to inform PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 future guidance regarding the development of risk ratio thresholds and the Department’s approach to reviewing risk ratio thresholds for reasonableness. (6) The Department has proposed to require States to make a determination of whether significant disproportionality exists in each LEA, for each racial and ethnic group with 10 children (for purposes of identification) and 10 children with disabilities (for purposes of placement and discipline). Does the Department’s proposed minimum cell size of 10 align with existing State privacy laws, or would the proposal require States to change such laws? (7) The Department has proposed to require that States use the alternate risk ratio method only in situations where the total number of children in a comparison group is less than 10 or the risk to children in a comparison group is zero. Are there other situations, currently not accounted for in the proposed regulations, where it would be appropriate to use the alternate risk ratio method? In these situations, should the Department require or allow States the option to use the alternate risk ratio method? (8) The Department has proposed to require States to make a determination of whether significant disproportionality exists in the State and the LEAs of the State using a risk ratio or alternate risk ratio. The statutory requirement in section 618(d)(1) of IDEA applies to the Secretary of the Interior and States, as that term is defined in section 602(31) of IDEA (which includes each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas). However, the Department notes that, for some of these entities, performing a risk ratio or alternate risk ratio calculation in accordance with these proposed regulations may not be possible because of the lack of a comparison group of sufficient size (at least 10 children for purposes of identification and at least 10 children with disabilities for purposes of placement or disciplinary removals). As such, the Department is interested in seeking comments on how to require entities, whose population is sufficiently homogenous to prevent the calculation of a risk ratio or alternate risk ratio, to identify significant disproportionality. (9) The proposed regulation permits States to set different risk ratio thresholds for different categories of analysis (e.g., for intellectual disabilities, a risk ratio threshold of 3.0 and for specific learning disabilities, a E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules risk ratio threshold of 2.0). The Department is interested in seeking comments on whether the proposed regulation should include additional restrictions on developing and applying risk ratio thresholds. Should the Department allow or require States to use another approach in developing and applying risk ratio thresholds? Are there 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? Further, are there 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? (10) The Department has proposed to require States to identify significant disproportionality when an LEA has exceeded the risk ratio threshold or the alternate 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 from the immediate preceding year. While States would have flexibility to define ‘‘reasonable progress’’—by establishing uniform guidelines, making case by case determinations, or other approaches— the Department’s proposal would only allow States to withhold an identification of significant disproportionality in years when an LEA makes discernable progress in reducing their risk ratio. The Department is interested in seeking comments on whether to place additional restrictions on State flexibility to define ‘‘reasonable progress’’. (11) Research indicates that some LEAs may under-identify children of color. While the focus of these regulations is on overrepresentation, the Department specifically requests comments on how to support SEAs and LEAs in preventing underidentification, and ways the Department could ensure that LEAs identified with significant disproportionality with respect to identification properly implement their States’ child find policies and procedures. What technical assistance or guidance might the Department put in place to ensure that LEAs identified with significant disproportionality do not inappropriately reduce the identification of children as children with disabilities or under-identify children of color in order to avoid a designation of significant disproportionality? How could States and LEAs use data to ensure that VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 children with disabilities are properly identified? (12) The Department has proposed to require States to use comprehensive CEIS to identify and address the factors contributing to significant disproportionality. The Department is interested in seeking comments on whether additional restrictions on the use of funds for comprehensive CEIS are appropriate for children who are already receiving services under Part B of the IDEA. (13) The Department intends to monitor and assess these regulations once they are final to ensure they have the intended goal of improving outcomes for all children. What metrics should the Department establish to assess the impact of the regulations once they are final? Please explain your views and reasoning in your responses to all of these questions as clearly as possible, provide the basis for your comment, and provide any data or evidence, wherever possible, to support your views. 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 proposed 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, PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 10989 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 proposed regulations only upon a reasoned determination that their benefits would 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 proposed 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, E:\FR\FM\02MRP2.SGM 02MRP2 10990 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 assumptions, limitations, and data sources. Need for These Regulations As we set out in detail in our preamble, the overrepresentation of children of color in special education has been a national concern for more than 40 years. In its 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. Again, after review of its data, if a State finds any significant disproportionality based on race and ethnicity, it must provide for the review and, if appropriate, revision of the policies, practices, and procedures used for identifying or placing children; require the LEA to publicly report on any revisions; and require the LEA to reserve 15 percent of its IDEA Part B subgrant to provide comprehensive CEIS to children in the LEA, particularly, but not exclusively, children in those groups that were significantly overidentified. 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 the disparities in rates of identification, placement, and disciplinary removal across racial and ethnic groups would suggest, as noted by the GAO study and supported by the Department’s own data analysis. 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 addition, there is a 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 comprehensive CEIS funds do not allow LEAs to direct resources to those children directly impacted by inappropriate identification nor does it allow LEAs to provide early intervening services to preschool children, which could reduce the need for more extensive services in the future. Therefore, expanding the provision of VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 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 The Department reviewed and assessed various alternatives to the proposed regulations, drawing from internal sources and from comments submitted in response to the June 2014 RFI. Commenters responding to the RFI recommended that the Department address confusion about two IDEA provisions intended to address racial and ethnic disparities in identification for special education: (1) Section 618(d) of IDEA, under which States must 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 in identification, placement and disciplinary removals and (2) section 612(a)(24) of IDEA, under which States must have in effect policies and procedures to prevent the inappropriate over-identification or disproportionate representation by race and ethnicity of children as children with disabilities. Commenters requested that the Department develop a single definition such that ‘‘significant disproportionality’’ and ‘‘disproportionate representation’’ would have the same meaning to reduce confusion and bring these two provisions of the law into greater alignment. The Department examined these statutory provisions, along with a third provision addressing racial and ethnic disparities, section 612(a)(22)(A) of IDEA, which requires States to examine data to determine if LEAs have significant discrepancies in the rate of long-term suspensions and expulsions of children with disabilities among LEAs in the State or compared to such rates for nondisabled children within such agencies. The Department determined that efforts to define these three concepts-–significant disproportionality, disproportionate representation, and significant discrepancy–-to remove their distinguishing characteristics and increase their alignment could contravene the relevant statutory provisions. Commenters also recommended that the Department create a model methodology for determining significant disproportionality against which State methodologies would be evaluated and approved or rejected. The Department determined that such a strategy would not clarify for States the minimum PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 requirements for making determinations of significant disproportionality and would significantly delay the States’ implementation of an approved methodology. In addition, the Department had concerns that such an approach would increase burden on many States in the event that initial submissions of a methodology were rejected, creating the need for additional State submissions. Internally, the Department considered an alternate definition of risk ratio threshold that would have limited States to using a range of numerical thresholds, not to exceed a maximum set by the Department. The Department posited that such limitations might assist States in identifying more LEAs with significant disproportionality where large disparities in identification, placement and disciplinary removal exist. The Department, however, acknowledges concerns raised in certain comments to the June 2014 RFI that mandated thresholds might fail to appropriately account for wide variations between States, including LEA sizes and populations. The Department is also aware that, in the case of the identification of children with disabilities, setting risk ratio thresholds too low might create an adverse incentive—encouraging LEAs to deny children from particular racial or ethnic groups access to special education and related services to prevent a determination of significant disproportionality. Given these competing concerns, the Department asks a directed question in this NPRM regarding the strengths and weaknesses of mandating specific risk ratio thresholds. The Department also considered allowing States to continue to use the weighted risk ratio method. The proposed regulations, however, limit the States to the risk ratio and, if appropriate, the alternate risk ratio methodologies, specify the conditions under which each must be utilized, and disallow the use of the weighted risk ratio. The Department’s purpose in directing States to use the risk ratio and alternate risk ratio methods are (1) to improve transparency with respect to determinations of significant disproportionality across States through the use of a common analytical method and (2) to limit the burden of a transition to a new method for States as 41 States already use some form of the method. While a number of States currently use the weighted risk ratio method, that method fails to provide LEAs and the public with a transparent comparison between risk to a given racial or ethnic group and its peers, as E:\FR\FM\02MRP2.SGM 02MRP2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 the risk ratio and alternate risk ratio methodologies do. Instead, with a weighted risk ratio approach, the comparison is adjusted by adding different weights to each racial and ethnic group, typically based on Statelevel representation and is intended to improve risk ratio reliability when size of certain racial and ethnic groups are small. Given that the Department’s proposal already includes three mechanisms for addressing risk ratio reliability—(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 cell size requirement—the Department determined that the potential benefits of the weighted risk ratio method were exceeded by the costs associated with complexity and decreased transparency. The Department also considered maintaining the current regulations and continuing to allow States full flexibility to use their own methodology for significant disproportionality determinations. However, given that 22 States plus the Virgin Islands identified no LEAs with significant disproportionality in 2012–2013 and the evidence of some degree racial and ethnic disparity among LEAs in every State, the Department determined that the a standard methodology would help States to fulfill their statutory obligations under IDEA. Discussion of Costs, Benefits and Transfers The Department has analyzed the costs of complying with the proposed requirements. Due to the considerable discretion the proposed regulations would provide States (e.g., flexibility to determine their own risk ratio thresholds, whether LEAs have made reasonable progress reducing significant disproportionality), we cannot evaluate the costs of implementing the proposed regulations with absolute precision. However, we estimate that the total cost of these regulations over ten years would be between $47.5 and $87.1 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 proposed requirements, taken as a whole, would include: Ensuring increased transparency on each State’s definition of significant disproportionality; establishing an increased role for State Advisory Panels in determining States’ risk ratio thresholds; reducing the use of potentially inappropriate policies, practices, and procedures as they relate VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 to the identification of children as children with disabilities, placements in particular educational settings for these children, and the incidence, duration, and type of disciplinary removals from placements, including suspensions and expulsions; and promoting and increasing comparability of data across States in relation to the identification, placement, or 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 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 at a later date. Benefits The Department believes this proposed 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 draw attention to how States identify and support LEAs with potentially inappropriate policies, practices, and procedures as they relate to the identification, placement, and discipline of children with disabilities. 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 appropriate 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 10991 address disproportionality on the basis of race or ethnicity. Requiring that States set reasonable risk ratio thresholds 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 discrepancies 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 the IDEA and that States are prepared and able 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 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 such disciplinary actions. (Council of Statement Governments, 2011.) The Department believes that suspensions and expulsions can often be avoided, particularly if LEAs utilize 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 proposed regulation clarifies 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 reform 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. E:\FR\FM\02MRP2.SGM 02MRP2 10992 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Under section 613(f) of IDEA and 34 CFR 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 be used to also support children with disabilities and children ages three through five, the proposed regulation 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 be identified later as having a disability, which could reduce the need for more extensive special education and related services at a later date. 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 proposed rules. The following section provides a detailed analysis of the estimated costs of implementing the proposed requirements contained in the new regulation. Number of LEAs Newly Identified In order to accurately estimate the fiscal and budgetary impacts of this proposed regulation, the Department must estimate not only the costs associated with State compliance with these proposed 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 would be newly identified in future VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 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, our estimates are highly sensitive to our assumptions regarding this number. In 2012–2013, the most recent year for which data are available, States identified 449 out of approximately 17,000 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. The proposed 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 proposed regulations may not result in any additional LEAs being identified as having significant disproportionality. However, we believe that this scenario is unlikely and therefore would represent an extreme lower bound estimate of the cost of this proposed regulation. We believe it is much more likely that the necessary methodological changes required by this proposed 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 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 States will set in consultation with their State Advisory Panels and therefore do not know the number of LEAs that would be identified by such new thresholds. However, for purposes of these cost estimates, we assume that such changes would result in 400 additional LEAs being identified each year nationwide. This number represents an approximately ninety percent increase in the number of LEAs identified by States each year. The Department assumes that changes in State policy are potential and likely outcomes of these proposed regulations; therefore, the number of new LEAs that may potentially be identified should be reflected in our cost estimates. To the extent that States identify fewer than 400 additional LEAs in each PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 year or that the number of LEAs identified decreases over time, the estimates presented below will be 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. Cost of State-Level Activities The proposed regulations would 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. The proposed regulations require States to set a risk ratio threshold, 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, and; (2) consider, in making determinations of significant disproportionality, whether LEAs have made reasonable progress at reducing disproportionality. Finally, this regulation would 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 proposed 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 a risk ratio threshold, 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 proposed regulations, States would have to take time to review the proposed regulations, determine how these proposed regulations would 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 E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules ($61.66), at 16 hours each for a total one-time cost for the 50 States, the District of Columbia, Puerto Rico, the Bureau of Indian Education (BIE), Guam, American Samoa, and the Virgin Islands of $238,610.4 Since no State currently calculates significant disproportionality using the exact methodology being proposed in this regulation, each State would need to modify its data collection tools. To estimate the cost per State, we assume that State employees would likely include a Database Manager ($52.32) and a Management Analyst ($44.64) at 16 hours each for a total one-time cost for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin Islands of $86,880. 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 would 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, we assume that State employees would likely include a Special Education Director ($63.04) for 3 hours, 5 Management Analysts ($44.64) for 16 hours, 2 Administrative Assistants ($25.69) for 8 hours, a Computer Support Specialist ($35.71) for 2 hours, and 2 lawyers ($61.66) for 16 hours, for a total one-time cost for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin Islands of $348,090. Additionally, proposed changes under § 300.646(d) would 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 would have to review their existing processes to ensure that LEAs are provided with appropriate support to identify such contributing factors and 4 Unless 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 http://www. bls.gov/oes/current/999201.htm) multiplied by an employer cost for employee compensation of 1.57 (see http://www.bls.gov/news.release/ecec.toc.htm). VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 use funds for comprehensive CEIS in ways that are appropriately targeted to address such contributing 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, BIE, Guam, American Samoa, and the Virgin Islands of $120,070. Under the new regulations, States must also determine a risk ratio threshold based on the advice of stakeholders, including State Advisory Panels, as provided under section 612(a)(21)(D)(iii) of IDEA. In order to estimate the cost of implementing these requirements, we assume that the average State would likely initially meet this requirement in Year 1 and revisit the thresholds 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 eight 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 5 for full-time 5 Wages in this section do not reflect loaded wage rates. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 10993 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).7 For 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 2 hours, one State employee in a managerial position ($51.50) for 16 hours, one Management Analyst ($44.64) for 16 hours, and one Administrative Assistant ($25.69) for 16 hours. Based on these participants, we estimate that consultation with the State Advisory Panels would have a cumulative one-year cost of $294,760 for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin Islands. Annual Calculation of Risk Ratios and Notification of LEAs In addition to the initial costs outlined above, States would incur annual costs associated with calculating risk ratios, making determinations of significant disproportionality, and notifying LEAs of determinations. Proposed § 300.647 would require every State to annually calculate significant disproportionality for each LEA using a risk ratio or alterative risk ratio method in every category of analysis (as defined in this notice of proposed rulemaking) that meets the minimum cell size (with the minimum cell size being a number, 10 or lower, determined by the State). States would then be required to identify LEAs above the risk ratio threshold with significant disproportionality. When making a determination of significant 6 Hourly 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. 7 Hourly 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. E:\FR\FM\02MRP2.SGM 02MRP2 10994 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 disproportionality, States would be allowed to use three years of data, and take into account whether LEAs demonstrate reasonable progress at reducing significant disproportionality. To estimate the annual cost per State, we assume that State employees involved in this calculation would likely include 3 Management Analysts ($44.64) for 24 hours and one Administrative Assistant ($25.69) for 6 hours for an annual cost of $188,620 for the 50 States, the District of Columbia, Puerto Rico, BIE, 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. If we assume 400 new LEAs are identified with significant disproportionality, the annual cost would be $7,720. Review and Revision of Policies, Practices, and Procedures States are required to provide for the review and, if appropriate, the 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 2 Management Analysts ($44.64) for 6 hours for each LEA. If we assume 400 new LEAs are identified with significant disproportionality each year, the annual cost would be $150,620 for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin Islands. Many States require LEAs identified with significant disproportionality to 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 of IDEA. We assume this would require LEAs to examine data, VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 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 allocation for comprehensive CEIS. Any LEAs fitting 8 Hourly 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 days and hours per day assuming 200 workdays and 8 hours per day. 9 Hourly 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 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. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 into this category would 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 such 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 2–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 $901,020. 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 allocations 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 .25 hours for each LEA. If we assume 400 new LEAs are identified with significant E:\FR\FM\02MRP2.SGM 02MRP2 10995 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules disproportionality, the annual cost would be $4,460. Federal Review of State Risk Ratio Thresholds Under proposed § 300.647(b)(1)(ii), the risk ratio thresholds established by States would be 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 and then monitor the thresholds again in any year in which a State changes its risk ratio thresholds. To estimate the annual cost of reviewing risk ratio thresholds, we assume that Department staff involved in such reviews would likely include one management analyst at the GS–13 level ($73.95 10), and take 1 hour each for the 50 States, the District of Columbia, Puerto Rico, BIE, 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 $771.50. 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 2011–12, the Department estimates that 15 percent of the average LEA section 611 and section 619 subgrant allocation 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 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 NPRM, the proposed 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 proposed 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 proposed changes, for 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 proposed regulation because we consider it highly unlikely that there would be no additional LEAs identified. As noted above, the Department’s choice 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 thresholds 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 proposed rules. In order to estimate an upper bound, the Department assumes that States could set much more aggressive thresholds 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 proposed 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 proposed 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 3 percent discount rate. TABLE 8—SENSITIVITY OF COST ESTIMATES TO NUMBER OF ADDITIONAL LEAS ASSUMED TO BE IDENTIFIED Costs Category 0 LEAs State-level review and compliance with the new rule (modifying data collection tools, meeting with State Advisory Panels, drafting and issuing guidance to LEAs) ..................................... Annual calculation of risk ratios and notification of LEAs ........................................................... Review and, if necessary, revision of policies, practices, and procedures ................................ Planning for and tracking the use of funds for comprehensive CEIS ......................................... 400 LEAs $1,508,620 2,454,359 0 0 Category mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Executive Order 12866 and the Presidential memorandum ‘‘Plain Language in Government Writing’’ 10 This loaded hourly wage rate is based on the hourly earnings of a GS–13 step 3 federal employee Jkt 238001 0 552,867,164 1,658,601,491 require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: Clarity of the Regulations 18:15 Mar 01, 2016 $1,508,620 2,755,702 168,615,538 80,348,546 Transfers Reservation of funds for comprehensive CEIS ........................................................................... VerDate Sep<11>2014 $1,508,620 2,554,807 56,205,180 26,782,849 1,200 LEAs • Are the requirements in the proposed regulations clearly stated? • Do the proposed regulations contain technical terms or other wording that interferes with their clarity? in Washington, DC. (See: https://www.opm.gov/ policy-data-oversight/pay-leave/salaries-wages/ salary-tables/16Tables/html/DCB_h.aspx). PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\02MRP2.SGM 02MRP2 10996 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 • Does the format of the proposed regulations (use of headings, paragraphing, etc.) aid or reduce their clarity? • Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A ‘‘section’’ is preceded by the symbol ‘‘§ ’’ and a numbered heading; for example, § 300.646 Disproportionality.) • Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how? • What else could we do to make the proposed regulations easier to understand? To send any comments that concern how the Department could make these proposed regulations easier to understand see the instructions in the ADDRESSES section. Regulatory Flexibility Act Certification The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) Size Standards define ‘‘small entities’’ as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000. These proposed regulations would affect all LEAs, including the estimated 17,371 LEAs that meet the definition of small entities. However, we have determined that the proposed regulations would not have a significant economic impact on these small entities. Pursuant to this proposed regulatory action, if States chose to increase their level of accountability with respect to disproportionality on the basis of race and ethnicity, there would be increasing costs for LEAs that have been identified with significant disproportionality as defined by the State. Nonetheless, based on the limited information available, the Secretary does not believe that the effect of these changes would be significant. The number of new LEAs identified with significant disproportionality will depend upon the extent to which States exercise their flexibility to determine reasonable progress made by LEAs at reducing significant disproportionality, the number of years of data used to make determinations of significant disproportionality, and the risk ratio thresholds set by the State. There are no VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 increased costs associated with this regulatory action for LEAs that are not identified with significant disproportionality. Paperwork Reduction Act of 1995 This NPRM contains information collection requirements that are subject to be reviewed by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). These proposed regulations contain information collection requirements that are approved by OMB under OMB control number 1820–0689; these proposed regulations do not affect the currently approved data collection. 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 accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e–4, the Secretary particularly requests comments on whether these proposed regulations would 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 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 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 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 search feature at this site, you can limit your search to documents published by the Department. (Catalog of Federal Domestic Assistance Number 84.027, Assistance to States for Education of Children with Disabilities) 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. Dated: February 19, 2016. John B. King, Jr., Acting Secretary of Education. For the reasons discussed in the preamble, the Secretary of Education proposes to amend 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, 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 E:\FR\FM\02MRP2.SGM 02MRP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules 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. 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; and (ii) Must identify and address the factors contributing to the significant disproportionality, which may include 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. (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. VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 (3) An LEA may not limit the provision of comprehensive coordinated early intervening services under this paragraph to 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 for children in one racial or ethnic group within an LEA by the risk for children in all other racial or ethnic groups in the State. (2) Risk is the likelihood of a particular outcome (identification, placement, or disciplinary removal) for a specified racial or ethnic group, calculated by dividing the number of children from a specified racial or ethnic group experiencing that outcome by the total number of children from that racial or ethnic group enrolled in the LEA. (3) 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. (4) 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), the State must— (1) Set a reasonable risk ratio threshold for each of the categories described in paragraphs (b)(3) and (4) of this section that is: (i) Developed based on advice from stakeholders, including State Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the Act; and (ii) Subject to monitoring and enforcement for reasonableness by the Secretary consistent with section 616 of the Act; (2) Apply the risk ratio threshold 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; PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 10997 (v) Native Hawaiian or Other Pacific Islander; (vi) White; and (vii) Two or more races; (3) Calculate the risk ratio for each LEA, for each racial and ethnic group in paragraph (b)(2) of this section that includes a minimum number of children not to exceed 10, 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) Calculate the risk ratio for each LEA, for each racial and ethnic group in paragraph (b)(2) of this section that includes a minimum number of children with disabilities not to exceed 10, 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 more than 40 percent of the day and less than 79 percent of the day; (ii) For children with disabilities ages 6 through 21, inside a regular class less than 40 percent of the day; (iii) 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; (iv) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of 10 days or fewer; (v) For children with disabilities ages 3 through 21, out-of-school suspensions and expulsions of more than 10 days; (vi) For children with disabilities ages 3 through 21, in-school suspensions of 10 days or fewer; (vii) For children with disabilities ages 3 through 21, in-school suspensions of more than 10 days; and (viii) For children with disabilities ages 3 through 21, disciplinary removals in total, including in-school and out-ofschool suspensions, expulsions, removals by school personnel to an interim alternative education setting, and removals by a hearing officer; (5) Calculate an alternate risk ratio with respect to the categories described in paragraphs (b)(3) and (4) of this section if— (i) The total number of children in all other racial and ethnic groups within the LEA is fewer than 10; or E:\FR\FM\02MRP2.SGM 02MRP2 10998 Federal Register / Vol. 81, No. 41 / Wednesday, March 2, 2016 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (ii) The risk for children in all other racial and ethnic groups within the LEA is zero; and (6) Except as provided in paragraph (c) of this section, 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 VerDate Sep<11>2014 18:15 Mar 01, 2016 Jkt 238001 threshold set by the State for that category. (c) 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 the 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 three prior consecutive years preceding the identification; and PO 00000 Frm 00032 Fmt 4701 Sfmt 9990 (2) The LEA has exceeded the risk ratio threshold or the alternate 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 from the immediate preceding year. Authority: 20 U.S.C. 1418(d). [FR Doc. 2016–03938 Filed 3–1–16; 8:45 am] BILLING CODE 4000–01–P E:\FR\FM\02MRP2.SGM 02MRP2

Agencies

[Federal Register Volume 81, Number 41 (Wednesday, March 2, 2016)]
[Proposed Rules]
[Pages 10967-10998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03938]



[[Page 10967]]

Vol. 81

Wednesday,

No. 41

March 2, 2016

Part II





Department of Education





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34 CFR Part 300





Assistance to States for the Education of Children With Disabilities; 
Preschool Grants for Children With Disabilities; Proposed Rules

Federal Register / Vol. 81 , No. 41 / Wednesday, March 2, 2016 / 
Proposed Rules

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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: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend 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 in IDEA, the regulations 
would 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 such services for children from age 3 
through grade 12, with and without disabilities.

DATES: We must receive your comments on or before May 16, 2016.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email or those submitted after the comment 
period. To ensure that we do not receive duplicate copies, please 
submit your comments only once. In addition, please include the Docket 
ID at the top of your comments.
    If you are submitting comments electronically, we strongly 
encourage you to submit any comments or attachments in Microsoft Word 
format. If you must submit a comment in Adobe Portable Document Format 
(PDF), we strongly encourage you to convert the PDF to print-to-PDF 
format or to use some other commonly used searchable text format. 
Please do not submit the PDF in a scanned format. Using a print-to-PDF 
format allows the U.S. Department of Education (the Department) to 
electronically search and copy certain portions of your submissions.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for finding a rule on the site 
and submitting comments, is available on the site under ``How to use 
Regulations.gov'' in the Help section.
     Postal Mail, Commercial Delivery, or Hand Delivery:
    The Department strongly encourages commenters to submit their 
comments electronically. However, if you mail or deliver your comments 
about these proposed regulations, address them to Kristen Harper, U.S. 
Department of Education, 550 12th Street SW., Room 5109A, Potomac 
Center Plaza, Washington, DC 20202-2600.

    Privacy Note:  The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to 
include in their comments only information that they wish to make 
publicly available.


FOR FURTHER INFORMATION CONTACT: Kristen Harper, U.S. Department of 
Education, 550 12th Street SW., Room 5109A, Potomac Center Plaza, 
Washington, DC 20202-2600. Telephone: (202) 245-6109.
    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 proposed 
regulations is to promote equity in IDEA. The specific purposes are to 
(1) help ensure States appropriately identify significant 
disproportionality based on race and ethnicity in the State and LEAs of 
the State with regard to identification of children as children with 
disabilities, the placement of children in particular educational 
settings, and the incidence, duration, and type of disciplinary actions 
(including suspensions and expulsions); and (2) help States and LEAs 
address and reduce significant disproportionality in the State and the 
LEAs identified. Specifically, the proposed 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 
due to disciplinary removals. These proposed regulations specifically 
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. At the same time, there have been significant improvements 
in the provision of special education, particularly with regard to 
placing children in general education classrooms with appropriate 
supports and services, and a commitment to instruction tied to college- 
and career-ready standards for all children, all of which should play a 
positive role in improving student outcomes. Therefore, the intention 
of these proposed regulations is not to limit services for children 
with disabilities who need them; rather, their purpose is to ensure 
that children are not mislabeled and receive appropriate services.
    To accomplish this end, these proposed regulations would 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. IDEA does not define 
``significant disproportionality,'' and, in the Department's August 
2006 IDEA Part B regulations, the Department left the matter to the 
discretion of the States. Since then, States have adopted different 
methodologies, and, as a result, far fewer LEAs are identified as 
having significant disproportionality than the disparities in rates of 
identification, placement, and disciplinary removal across racial and 
ethnic groups would suggest. 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.

[[Page 10969]]

    Further, these proposed regulations would clarify ambiguities in 
the existing regulations concerning significant disproportionality in 
the discipline of children with disabilities. Data and research show 
that children of color with disabilities are more likely to be 
suspended and expelled than white children with disabilities, and that 
suspensions are associated with negative student outcomes such as lower 
academic performance, higher rates of dropout, failures to graduate on 
time, decreased academic engagement, future disciplinary exclusion, and 
interaction with the juvenile justice system. (Lamont et al, 2013; 
Council of State Governments, 2011; Lee, Cornell, Gregory, & Xitao, 
2011; Losen and Skiba, 2010; Brooks, Shiraldi & Zeidenberg, 2000; Civil 
Rights Project, 2000.)
    In order to improve the review of LEA policies, practices, and 
procedures when significant disproportionality is found, the Department 
is also proposing to clarify IDEA's requirements regarding their review 
and, when appropriate, revision.
    Finally, to help address and reduce significant disproportionality 
when it is found in an LEA, the proposed regulations would expand the 
scope of and strengthen the remedies required under IDEA. Under section 
618(d) of IDEA (20 U.S.C. 1418(d)), if a State determines that 
significant disproportionality is occurring in an LEA, the State must 
require the LEA to reserve the maximum amount of funds to provide 
comprehensive CEIS to serve children in the LEA, particularly children 
in those racial or ethnic groups that were significantly 
overidentified. The proposed regulations would require that LEAs 
identify and address the factors contributing to significant 
disproportionality as part of the implementation of comprehensive CEIS 
and would expand the authorized use of funds reserved for these 
services to serve children from age 3 through grade 12, with and 
without disabilities.
    Please refer to the Background section of this notice of proposed 
rulemaking for a detailed discussion of these proposals and their 
purposes.

Summary of the Major Provisions of This Regulatory Action

    As described below, the proposed regulations would require States 
to use a standard methodology to identify significant 
disproportionality in the State and in its LEAs, including the use of: 
A risk ratio or, if appropriate given the populations in an LEA, an 
alternate risk ratio; a reasonable risk ratio threshold; and a minimum 
cell size of not more than 10 as the standard methodology to determine 
whether there is significant disproportionality based on race or 
ethnicity in the State and its LEAs.
    States would retain 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. States would set 
risk ratio thresholds for three categories of analysis:
     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 IDEA;
     The placement of children with disabilities in particular 
educational settings; and
     The incidence, duration, and type of disciplinary actions, 
including suspensions and expulsions.
    These regulations would also provide States with flexibility in 
determining whether significant disproportionality exists, even if a 
risk ratio exceeds the risk ratio threshold established by the State. 
States have the flexibility to choose to identify an LEA as having 
significant disproportionality only after an LEA exceeds a risk ratio 
threshold for up to three prior consecutive years. In addition, a State 
need not identify an LEA with significant disproportionality if the LEA 
is making reasonable progress in lowering its risk ratios, where 
reasonable progress is determined by the State.
    The proposed regulations would clarify that States must address 
significant disproportionality in the incidence, duration, and type of 
disciplinary actions of children with disabilities, including 
suspensions and expulsions, using the same statutory remedies required 
to address significant disproportionality in the identification and 
placement of children with disabilities.
    Under these proposed regulations, States would also have to provide 
for the review and, if appropriate, revision of an LEA's policies, 
practices, and procedures used in the identification or placement of 
children with disabilities in every year in which an LEA is determined 
to have significant disproportionality based upon race or ethnicity. 
Reporting of any revisions to an LEA's policies, practices, and 
procedures would have to comply with the confidentiality provisions of 
FERPA, its implementing regulations in 34 CFR part 99, and section 
618(b)(1) of IDEA.
    Finally, the proposed regulations would expand the student 
populations that may receive comprehensive CEIS when an LEA has been 
identified with significant disproportionality. Funds reserved for 
these services under section 618(d)(2)(B) of IDEA (20 U.S.C. 
1418(d)(2)(B)) could be used to serve children from age 3 through grade 
12, with and without disabilities. Under current regulation, 
comprehensive CEIS may only serve children without disabilities, from 
kindergarten through grade 12. The proposed regulations would also 
require that, as part of implementing these services, an LEA must 
identify and address the factors contributing to the significant 
disproportionality.
    The Department also intends to monitor and assess these regulations 
once they are final to ensure they have the intended goal of improving 
outcomes for all children. To that end, the Department will publicly 
establish metrics by which to assess the impact of the regulations. 
These might include a comparison of risk ratios to national averages 
and across States. We welcome public comment on appropriate metrics to 
use to monitor these regulations.
    Please refer to the Significant Proposed Regulations section of 
this notice of proposed rulemaking for a detailed discussion of these 
proposals.

Costs and Benefits

    As further detailed in the Regulatory Impact Analysis, we estimate 
that the total cost of these regulations over ten years would be 
between $47.5 and $87.18 million, plus additional transfers between 
$298.4 and $552.9 million. The major benefits of these proposed 
regulations, taken as a whole, include ensuring a standard methodology 
for determining significant disproportionality based on race and 
ethnicity in the State and the LEAs in the State with regard to 
identification of children as children with disabilities, the placement 
of children in particular educational settings, and the incidence, 
duration, and type of disciplinary actions, including suspensions and 
expulsions; ensuring increased transparency on each State's definition 
of significant disproportionality; establishing an increased role for 
stakeholders through State Advisory Panels in determining States' risk 
ratio thresholds; 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, and the incidence, 
duration, and type of disciplinary removals from

[[Page 10970]]

placements, including suspensions and expulsions; and promoting and 
increasing comparability of data across States in relation to the 
identification, placement, or 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 flexibility to use IDEA Part 
B 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 such children at a 
later date.
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations and directed questions. To ensure that your 
comments have maximum effect in developing the final regulations, we 
urge you to identify clearly the specific section or sections of the 
proposed regulations that each of your comments addresses and to 
arrange your comments in the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the Department's programs 
and activities.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You also may inspect the comments in person in Room 5109A, Potomac 
Center Plaza, 550 12th Street SW., Washington, DC, between the hours of 
8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of 
each week except Federal holidays. Please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Background

IDEA Requirements Regarding Racial and Ethnic Disparities
    Under IDEA Part B, the Department provides grants to States, 
outlying areas, and freely associated States, as well as funds to the 
Department of the Interior, to assist them in providing special 
education and related services to children with disabilities. There are 
four key purposes of the Part B regulations in 34 CFR part 300: (1) To 
ensure that all children with disabilities have available to them a 
free appropriate public education (FAPE) that emphasizes special 
education and related services designed to meet their unique needs and 
prepares them for further education, employment, and independent 
living; (2) to ensure that the rights of children with disabilities and 
their parents are protected; (3) to assist States, localities, 
educational service agencies, and Federal agencies in providing for the 
education of all children with disabilities; and (4) to assess and 
ensure the effectiveness of efforts to educate children with 
disabilities.
    The overrepresentation of children from racial, cultural, ethnic, 
and linguistic minority backgrounds in special education programs has 
been a national concern for four decades. (Donovan & Cross, 2002.) When 
children of color are identified as children with disabilities at 
substantially higher rates than their peers, there is a strong concern 
that some of these children may have been improperly identified as 
children with disabilities, to their detriment. Misidentification 
interferes with a school's ability to provide children with appropriate 
educational services. (Albrecht, Skiba, Losen, Chung & Middleberg, 
2012.) The overidentification of children of color in special 
education, in particular, raises concerns of potential inequities in 
both educational opportunities and outcomes. Overidentification may 
differentially diminish the opportunities of children of color to 
interact with teachers and others within the larger school context, 
especially when education is provided in separate settings. Research 
has found that African American, Hispanic/Latino, and American Indian/
Alaska Native children and English language learners have a greater 
chance of receiving placements in separate educational settings than do 
their peers. (De Valazuela, Copeland, Huaqing Qi, and Park, 2006.) 
Nationally, Black/African-American, Asian, and Native Hawaiian and 
Other Pacific Islander children with disabilities (ages 6 through 21) 
were less likely than their White peers to be inside the regular 
classroom 80 percent or more of the day (56 percent, 57 percent, 54 
percent, and 65 percent, respectively) during the 2012-2013 school year 
(SY). (36th Annual Report to Congress, 2014.)
    In issuing these proposed regulations, the Department's goal is to 
promote equity in IDEA. We want to be clear that our intention is not 
to deny special education services to children who need them. It is, 
however, to ensure that children who need special education services 
receive them in the least restrictive settings. It is also to ensure 
that children who do not have disabilities and do not need special 
education services are not inappropriately identified as such, and to 
ensure that those children receive proper educational supports through 
the general education system.
    Congress first addressed racial and ethnic disparities in 
identification for special education in the IDEA Amendments of 1997 
(1997 Amendments). It found that ``[g]reater efforts are needed to 
prevent the intensification of problems connected with mislabeling and 
high dropout rates of minority children with disabilities,'' Public Law 
105-17, section 601(c)(8)(A) (1997), codified at 20 U.S.C. 
1400(c)(12)(A), and noted that ``more minority children continue to be 
served in special education than would be expected from the percentage 
of minority students in the general education population.'' Public Law 
105-17, section 601(8)(B)(1997), codified at 20 U.S.C. 1400(c)(12)(B).
    The 1997 Amendments added the requirement that States collect and 
examine data to determine if significant disproportionality based on 
race was occurring in the identification and placement of children with 
disabilities. Public Law 105-17, section 618(c)(1) (1997). If States 
found significant disproportionality, Congress required them to review, 
and, if appropriate, revise the policies, practices, and procedures 
used in identification and placement. Public Law 105-17, section 
618(c)(2) (1997).
    In 2004, Congress again found that greater efforts were needed to 
address misidentification of children of color with disabilities, and 
it specifically found that ``African-American children are identified 
as having [intellectual disabilities] or emotional disturbance at rates 
greater than their White counterparts;'' that ``[i]n the 1998-1999

[[Page 10971]]

school year, African-American children represented just 14.8 percent of 
the population aged 6 through 21, but comprised 20.2 percent of all 
children with disabilities;'' and that ``[s]tudies have found that 
schools with predominately White students and teachers have placed 
disproportionately high numbers of minority students into special 
education.'' Public Law 108-446, section 601(c)(12) (2004), codified at 
20 U.S.C. 1400(c)(12)(C)-(E).
    Accordingly, in the Individuals with Disabilities Education 
Improvement Act of 2004, Congress expanded the provision on significant 
disproportionality in four respects: (1) Added ``ethnicity'' to section 
618(d)(1) as a basis upon which to determine significant 
disproportionality (in addition to race); (2) added section 
618(d)(1)(C) to require that States determine if significant 
disproportionality is occurring with respect to the incidence, 
duration, and type of disciplinary actions, including suspensions and 
expulsions; (3) added section 618(d)(2)(B) to require the mandatory use 
of funds for comprehensive CEIS; and (4) added 618(d)(2)(C) to require 
that LEAS publicly report on the revision of policies, practices, and 
procedures.
    In addition to changes to the significant disproportionality 
provision in section 618(d) of IDEA, Congress added a requirement that 
States, using quantifiable indicators, monitor LEAs for 
disproportionate representation of racial and ethnic groups in special 
education and related services that is the result of inappropriate 
identification. Public Law 108-446, section 616(a)(3)(C)(2004), 
codified at 20 U.S.C. 1416(a)(3).
    As such, IDEA currently requires each State to collect and examine 
data to determine if significant disproportionality based on race and 
ethnicity is occurring in the State and its LEAs in any of three 
categories of analysis:
     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 IDEA (identification);
     The placement of children with disabilities in particular 
educational settings (placement); and
     The incidence, duration, and type of disciplinary actions, 
including suspensions and expulsions (disciplinary removals).

Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)).
    If a State determines that an LEA has significant 
disproportionality based on race and ethnicity with respect to 
identification or placement, then the State must: (1) Provide for the 
review and, if appropriate, revision of policies, practices, and 
procedures used in the identification or placement to ensure that its 
policies, practices, and procedures comply with the requirements of 
IDEA; (2) require any LEA identified with significant 
disproportionality to reserve the maximum amount of funds under section 
613(f) of IDEA (20 U.S.C. 1413(f)) to provide comprehensive CEIS to 
serve children in the LEA, particularly children in those groups that 
were significantly overidentified; and (3) require the LEA to publicly 
report on the revision of those policies, practices, and procedures. 
Section 618(d)(2) of IDEA (20 U.S.C. 1418(d)(2)). These requirements 
are separate and distinct from the requirement that States report in 
their State Performance Plans/Annual Performance Reports on the percent 
of LEAs with disproportionate representation of racial and ethnic 
groups in special education and related services that is the result of 
inappropriate identification. Section 616(a)(3)(C) of IDEA; 20 U.S.C. 
1416(a)(3)(C); Sec.  300.600(d)(3).
    Finally, section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)) allows 
LEAs to voluntarily use up to 15 percent of their IDEA Part B funds 
(less any reduction by the LEA in local expenditures for the education 
of children with disabilities pursuant to Sec.  300.205) to develop and 
implement CEIS,\1\ which may include interagency financing structures, 
for children in kindergarten through grade 12 (with a particular 
emphasis on children in kindergarten through grade three) 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.
---------------------------------------------------------------------------

    \1\ For the sake of clarity and consistency, we refer to 
``comprehensive CEIS'' when an LEA provides coordinated early 
intervening services by mandate under section 618(d)(2)(B) (20 
U.S.C. 1418(d)(2)(B)). When an LEA voluntarily provides these 
services under section 613(f) (20 U.S.C. 1413(f)), we refer to them 
as ``CEIS.''
---------------------------------------------------------------------------

    It is against this background that the Department issues this 
notice of proposed rulemaking (NPRM) to require a standard methodology 
for States to use in identifying significant disproportionality on the 
basis of race and ethnicity in the State and the LEAs of the State and 
to strengthen the statutory remedies whenever LEAs are identified. 
There are four parts to the Department's proposal: A standard 
methodology that States must use to determine significant 
disproportionality; a clarification that the statutory remedies apply 
to disciplinary removals; a clarification that the review and revision 
of policies, practices, and procedures occur every year and be 
consistent with the Family Education Rights and Privacy Act (FERPA) (20 
U.S.C. 1232g) and its implementing regulations in 34 CFR part 99 and 
section 618(b)(1) of IDEA; and an expansion of the allowable and 
required uses of IDEA Part B funds for comprehensive CEIS.

I. Establishing a Standard Methodology States Must Use To Determine 
Significant Disproportionality

A. Definitions of Significant Disproportionality

    Neither IDEA nor its implementing regulations in 34 CFR part 300 
define the term ``significant disproportionality.'' While section 
607(a) of IDEA (20 U.S.C. 1406(a)) explicitly authorizes the Department 
to issue regulations to ensure compliance with the statute, the 
Department has previously left the matter to the States. In the 
preamble to the 2006 IDEA Part B regulations, we 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 
general. Therefore, in identifying significant disproportionality, a 
State may determine statistically significant levels.'' 71 FR 46540, 
46738 (Aug. 14, 2006).
    Thereafter, in Office of Special Education Programs (OSEP) 
Memorandum 07-09, April 24, 2007, the Office of Special Education and 
Rehabilitative Services (OSERS) stated that ``[w]ith one important 
caveat, each State has the discretion to define what constitutes 
significant disproportionality for the LEAs in the State and for the 
State in general. The caveat is that a State's definition of 
`significant disproportionality' needs to be based on an analysis of 
numerical information and may not include considerations of the State's 
or LEA's policies, practices, and procedures.''
    The Department, in short, has historically afforded States 
discretion in establishing methodologies for identifying significant 
disproportionality. States, in turn, have adopted a range of 
methodologies, including different methods for calculating disparities 
between racial and ethnic groups, different considerations for the 
duration of those

[[Page 10972]]

disparities, and different mechanisms for excluding LEAs from any 
determination of whether significant disproportionality exists.

B. The 2013 GAO Study on Racial and Ethnic Overrepresentation in 
Special Education

    In February 2013, the Government Accountability Office (GAO) issued 
a study entitled ``INDIVIDUALS WITH DISABILITIES EDUCATION ACT--
Standards Needed to Improve Identification of Racial and Ethnic 
Overrepresentation in Special Education (GAO-13-137).'' The GAO found 
that, in SY 2010-2011, States required about two percent of all school 
districts that received IDEA funding to use 15 percent of IDEA Part B 
funds for comprehensive CEIS to address significant disproportionality 
on the basis of race and ethnicity. Of a total of more than 15,000 
districts nationwide, only 356 LEAs (roughly two percent of LEAs) were 
required to provide comprehensive CEIS. The GAO 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.)

C. Actions Taken by the Department Since the GAO Study

    Like the GAO, the Department is concerned that the wide range of 
methodologies used to determine significant disproportionality creates 
significant challenges in assessing whether the problem of racial and 
ethnic disparities is being addressed. In fact, based on data collected 
by the Department's OSEP and Office for Civil Rights, the Department is 
concerned that many States are not identifying LEAs with large 
disparities in identification, placement, and discipline, thereby 
depriving a number of children of the remedies enumerated in statute, 
including comprehensive CEIS, for populations who are overidentified. 
Accordingly, in recent years the Department has taken a number of steps 
intended to address this problem.
    In a report to the President published in May 2014, the My 
Brother's Keeper Task Force identified disparities in special education 
as a significant challenge that should be addressed. In June 2014, the 
Department published a request for information (RFI) inviting public 
comment on the GAO's recommendation that the Department adopt a 
standard methodology for determining significant disproportionality. 79 
FR 35154 (June 19, 2014).
    The 95 commenters responding to the RFI generally fell into two 
broad categories: Civil rights and advocacy organizations, and SEA 
representatives. For the most part, civil rights and advocacy 
organizations strongly urged the Department to require a standard 
methodology that would offer States flexibility and at the same time 
decrease inter-State variability in methodologies for determining 
significant disproportionality. Most SEA representatives, in contrast, 
did not support the adoption of a standard methodology and asserted 
that a single methodology would be unlikely to fit the circumstances of 
different States.
    SEA representatives also noted that there are a large number of 
districts in the country that vary greatly in population, number of 
children served, geographic size, student needs, per pupil 
expenditures, and range of services offered. These commenters noted 
that some States have established ``intermediate school districts'' 
that only serve children with disabilities and that there is a high 
incidence of disability among children in some communities because of 
environmental factors. These commenters argued that, in such instances, 
a standard methodology for determining significant disproportionality 
might unintentionally identify LEAs that have disparities in enrollment 
rather than LEAs that actually have disparities based on race and 
ethnicity in the identification, placement, or disciplinary removal of 
children with disabilities.
    Other commenters argued that comprehensive CEIS (as outlined in the 
current regulations) may be ineffective as a tool to address 
significant disproportionality, since States often identify the same 
LEAs every year even after comprehensive CEIS has been employed. One 
commenter, representing an SEA, stated that clearer guidance regarding 
appropriate uses of funds for comprehensive CEIS would support more 
widespread implementation of multi-tiered systems of support. Other 
commenters, including an SEA representative and a group representing 
special education administrators, noted that States could not presently 
use comprehensive CEIS under section 618(d) of IDEA to provide services 
and support to children with disabilities even if they represent groups 
with significant disproportionality with respect to disciplinary 
removal and placement because of the limited population of children 
eligible for CEIS in section 613(f) of IDEA.
    Finally, the Department also undertook its own review of the State 
procedures for identifying LEAs with significant disproportionality. We 
reviewed methodologies for the 50 States, the District of Columbia, and 
the U.S. Virgin Islands, including whether States used the same or 
different methods across the three categories of analysis under section 
618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) (identification, placement, 
and disciplinary removal).\2\ Additional information regarding the 
various methodologies currently in use is available in the IDEA Data 
Center's Methods for Assessing Racial/Ethnic Disproportionality in 
Special Education: A Technical Assistance Guide (Revised), published at 
https://ideadata.org/files/resources/54480c2b140ba0665d8b4569/54c90646150ba0e04f8b457c/idc_ta_guide_for_508-051614/2015/01/28/idc_ta_guide_for_508-051614.pdf. We examined the results of the States' 
various methodologies for determining significant disproportionality by 
reviewing the LEAs identified based on the SY 2012-2013 IDEA section 
618 data. We also analyzed data on the rates of identification, 
placement, and disciplinary removals submitted by the States under 
section 618. Further, we conducted a review of research to better 
understand the extent and nature of racial and ethnic disparities in 
special education. Through these efforts, the Department found the 
following.
---------------------------------------------------------------------------

    \2\ As part of the SY 2013-2014 State Supplement Survey (SSS), 
each State was required to submit to the Department the methodology 
it uses to determine significant disproportionality.
---------------------------------------------------------------------------

1. Risk Ratio Is the Most Common Method of Determining Significant 
Disproportionality
    At the time of our review, 45 States used one or more forms of the 
risk ratio method to determine significant disproportionality. As there 
are a

[[Page 10973]]

number of different ways to calculate risk ratios for the purpose of 
identifying significant disproportionality, as well as alternatives to 
the risk ratio method, we provide an overview and background on how 
States are identifying LEAs with significant disproportionality.
``Standard'' Risk Ratio
    The ``standard'' risk ratio method compares the likelihood, or 
``risk,'' that children in a particular racial or ethnic group in an 
LEA will be identified for special education and related services to 
the likelihood that children in a comparison group, usually all other 
children in the LEA, will be identified for special education and 
related services. For example, if an LEA serves 100 Black/African-
American children and 15 of them are identified as being a student with 
a disability, the ``risk'' for Black/African-American children to be 
identified as a student with a disability would be 15 percent (15/100 = 
15 percent). A risk ratio would then compare this ``risk'' for Black/
African-American children to the ``risk'' for all non-Black/African-
American children in the LEA. A risk ratio calculation can also be used 
to compare the relative risk of placement in a particular setting or 
disciplinary removal. (Bollmer, Bethel, Garrison-Morgan & Brauen, 
2007.) At the time of our review, 21 States used the ``standard'' form 
of the risk ratio method.
    Generally, a risk ratio of 1.0 indicates that children in a given 
racial or ethnic group are no more likely than children from all other 
racial or ethnic groups to be identified for special education and 
related services, be identified with a particular impairment, be placed 
in a particular educational setting, or face disciplinary removals from 
placement. A risk ratio greater than 1.0 indicates that the risk for 
the racial or ethnic group is greater than the risk for the comparison 
group. Accordingly, a risk ratio of 2.0 indicates that one group is 
twice as likely as other children to be identified, placed, or 
disciplined in a particular way; a risk ratio of 3.0 indicates that one 
group is three times as likely as other children to be identified, 
placed, or disciplined in a particular way; etc.
    For example, consider an LEA that serves 5,000 children, 1,000 of 
whom are Black/African-American. In total, there are 450 children with 
disabilities in the LEA, 150 of whom are Black/African-American. As 
such, the likelihood, or ``risk,'' of any particular Black/African-
American student in the LEA being identified as having a disability is 
15 percent (150 Black/African-American children with disabilities/1000 
Black/African-American children in the LEA * 100 = 15 percent). The 
likelihood of any non-Black/African-American student in the LEA being 
identified as having a disability is 7.5 percent (300 non-Black/
African-American children with disabilities/4,000 non-Black/African-
American children in the LEA * 100 = 7.5 percent). As such, in the 
standard version of the calculation, the risk ratio for Black/African-
American children being identified as children with disabilities in 
this LEA would be 2.0 (15 percent of Black/African-American children 
identified with disabilities/7.5 percent of non-Black/African-American 
children with disabilities = 2.0).

Table 1--Example Standard Risk Ratio Calculation for Identification of Black/African-American Children in an LEA
----------------------------------------------------------------------------------------------------------------
                                            Black/African-American    Non-Black/African-American
                                                   children                    children           Total children
----------------------------------------------------------------------------------------------------------------
Children with disabilities..............  150.......................  300.......................             450
All children (with and without            1,000.....................  4,000.....................           5,000
 disabilities).
Risk....................................  150/1,000 = 15 percent....  300/4,000 = 7.5 percent...             N/A
Risk ratio..............................  15 percent/7.5 percent =    N/A.......................             N/A
                                           2.0.
----------------------------------------------------------------------------------------------------------------

    Risk ratios provide little information regarding racial and ethnic 
disparities when the risk to a racial or ethnic group of interest is 
zero. In this last example, if zero Black/African-American children 
were identified with a disability, and the risk to non-Black/African-
American children remained at 7.5 percent, the risk ratio for Black/
African-American children being identified as children with 
disabilities would be zero (0/7.5 percent). This ratio would remain 
zero, irrespective of the risk to non-Black/African-American children, 
despite the appearance of some disparity in identification of non-
Black/African-American children. While a risk ratio of zero is a fully 
valid and reasonable result of these calculations, it cannot, in the 
absence of other information, provide context about the gaps in 
identification rates across racial or ethnic groups.
    Further, risk ratios cannot be calculated when the risk to a 
comparison group is zero, or when there are no children in a comparison 
group. In the above scenario, if the risk of identification for Black/
African-American children remains at 15 percent, but the risk to non-
Black/African-American children is zero, the State cannot calculate a 
risk ratio for the identification of Black/African-American children 
because it is not possible to divide a number by zero (15 percent 
divided by 0 is undefined). The result would be the same if there were 
no non-Black/African-American children in the LEA, though the issue 
would arise one step earlier in the calculation of the risk for non-
Black/African-American children rather than in the calculation of the 
risk ratio itself.
Alternate Risk Ratio
    The use of the alternate risk ratio is one method for calculating 
risk ratios when there is an insufficient number of children in the 
comparison group at the LEA level to provide meaningful results (e.g., 
an LEA in which there are only 5 non-White children). (Bollmer et al. 
2007.) Seven states use the alternate risk ratio method to compare the 
risk of a subgroup in the LEA to the risk of all other subgroups in the 
State.
    For example, consider an LEA that serves 500 children, including 
495 American Indian/Alaska Native children. We assume that the LEA 
serves 100 children with disabilities and only one of them is not 
American Indian/Alaska Native. We could calculate a risk for American 
Indian/Alaska Native children by dividing the number of American 
Indian/Alaska Native children identified as children with disabilities 
(99) by the total number of American Indian/Alaska Native children in 
the LEA (495) and determine a risk of 20 percent (99/495 = 20 percent). 
However, when we attempt to calculate the ``risk'' for non-American 
Indian/Alaska Native children, we notice that the total number of non-
American Indian/Alaska Native children in the LEA (5) is sufficiently 
small that it is unlikely to generate stable risk calculations from 
year to year in the comparison group. As such, we need to use an 
alternate risk ratio calculation for non-American

[[Page 10974]]

Indian/Alaska Native children. In this case, States would look at what 
the State-wide risk is for non-American Indian/Alaska Native children. 
In this example, we will assume the State-wide risk for non-American 
Indian/Alaska Native children is 15 percent. We then compare the risk 
for American Indian/Alaska Native children in the LEA to the risk for 
non-American Indian/Alaska Native children Statewide to calculate the 
``alternate risk ratio'' of 1.33 (20 percent/15 percent = 1.33).

 Table 2--Example Alternate Risk Ratio Calculation of Identification for American Indian/Alaska Native Children
                                                    in an LEA
----------------------------------------------------------------------------------------------------------------
                                                                  Non-American Indian/     Non-American Indian/
                                       American Indian/ Alaska  Alaska  Native children  Alaska  Native children
                                        Native children in LEA           in LEA                 Statewide
----------------------------------------------------------------------------------------------------------------
Children with Disabilities...........  99.....................  1......................  30,000
All Children (with and without         495....................  5......................  200,000
 disabilities).
Risk.................................  99/495 = 20 percent....  N/A Below minimum cell   30,000/200,000 = 15
                                                                 size.                    percent
Alternate Risk Ratio.................  20 percent/15 percent =  N/A....................  N/A
                                        1.33.
----------------------------------------------------------------------------------------------------------------

Weighted Risk Ratio
    Separately, the Department also found that 25 States used a 
weighted risk ratio method, which addresses challenges associated with 
variances in LEA demographics by using State-level demographics to 
standardize LEA-level distributions of race and ethnicity. When using a 
weighted risk ratio method, 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 (e.g., if 
one racial or ethnic group comprises only five percent of children 
Statewide, the risk for that racial or ethnic group in each LEA will 
only comprise five percent of the calculated risk for the other 
groups). Stated mathematically, the weighted risk ratio is calculated 
as follows:
[GRAPHIC] [TIFF OMITTED] TP02MR16.000

where Ra is the LEA-level risk for racial or ethnic group a 
and pa is the State-level proportion of children from racial 
or ethnic group a. Rn is the LEA-level risk for the n-th 
racial or ethnic group and pn is the State-level proportion 
of children from the n-th racial or ethnic group.
    For example, consider a State with a population of school children 
that is 70 percent White, 10 percent Hispanic/Latino, and 20 percent 
Black/African-American. Within that State, LEA A has 10,000 children 
and very different demographics--1,000 White children, 8,000 Hispanic/
Latino children, and 1,000 Black/African-American children. Of them, 20 
White children (2 percent), 80 Hispanic/Latino children (1 percent), 
and 50 Black/African-American children (5 percent) are identified for 
special education and related services. In order to calculate the 
weighted risk ratio, the State would first weight the risks for the 
various racial or ethnic groups in the LEA by the proportion of total 
students Statewide that are in the same racial or ethnic group. They 
would then divide the weighted risks similar to the procedure in the 
standard risk ratio. The weighted risk ratio of identification for 
White children in the LEA is 0.55. The standard risk ratio, however, is 
1.38.
    In LEA B, where demographics are more similar to the State--8,000 
White children, 1,000 Hispanic/Latino children, and 1,000 Black/
African-American children--and the risk of identification for each 
group is the same as in LEA A (there are 160 White children, 10 
Hispanic/Latino children, and 50 Black/African-American children with 
disabilities), the standard risk ratio of identification for White 
children is 0.67. However, the weighted risk ratio for LEA B would be 
0.55, same as LEA A.

 Table 3--Example Standard and Weighted Risk Ratio Calculation of Identification for White Children in Two LEAs
----------------------------------------------------------------------------------------------------------------
                                                       Comparison group                        Comparison Group
                                                       (i.e., Hispanic/                        (i.e., Hispanic/
                                   White children in   Latino and Black/   White children in   Latino and Black/
                                         LEA A         African- American         LEA B         African- American
                                                      children) in LEA A                      children) in LEA B
----------------------------------------------------------------------------------------------------------------
Percentage of LEA enrollment....  10 percent........  80 percent          80 percent........  10 percent
                                                       Hispanic/Latino;                        Hispanic/Latino;
                                                       10 percent Black/                       10 percent Black/
                                                       African-American.                       African-American.
Number of children..............  1000..............  8000 Hispanic/      8000..............  1000 Hispanic/
                                                       Latino + 1000                           Latino + 1000
                                                       Black/African-                          Black/African-
                                                       American = 9000.                        American = 2000.
Number of children with a         20................  80 Hispanic/Latino  160...............  10 Hispanic/Latino
 disability.                                           + 50 Black/                             + 50 Black/
                                                       African-American                        African-American
                                                       = 130.                                  = 60.
Risk............................  20/1000 = 2         (80 + 50)/(8000 +   160/8000 = 2        (10 + 50)/(1000 +
                                   percent.            1000) = 1.4         percent.            1000) = 3
                                                       percent.                                percent.
Risk ratio......................  2 percent/1.4       Not applicable....  2 percent/3         Not applicable.
                                   percent = 1.38.                         percent = 0.67.
Weighted risk \a\...............  (20/1000) x (1 -    For Hispanic/       (160/8000) x (1 -   For Hispanic/
                                   0.7) = 0.6          Latino (80/8000)    0.7) = 0.60         Latino (10/1000)
                                   percent.            x 0.1 = 0.1         percent.            x 0.1 = 0.1
                                                       percent.                                percent.
                                                      For Black/African-                      For Black/African-
                                                       American (50/                           American (50/
                                                       1000) x 0.2 = 1                         1000) x 0.2 = 1
                                                       percent.                                percent.

[[Page 10975]]

 
Weighted risk ratio.............  0.6 percent/(0.1    Not applicable....  0.6 percent/(0.1    Not applicable.
                                   percent + 1                             percent + 1
                                   percent) = 0.55.                        percent) = 0.55.
----------------------------------------------------------------------------------------------------------------
\a\ Assumes racial and ethnic representation at the State level is 70 percent White, 10 percent Hispanic/Latino,
  and 20 percent Black/African-American.

Risk Difference
    Fewer than five States use the risk difference method, which is 
similar to the risk ratio method in approach and simplicity. While both 
compare the risk for a racial or ethnic group of interest to the risk 
for a comparison group (generally, children in all other racial and 
ethnic groups in the LEA), the risk difference method provides a 
percentage point difference between the two risks, while the risk ratio 
method provides a quotient. For example, in an LEA where 15 percent of 
Black/African-American children are identified with emotional 
disturbance and 10 percent of children in all other racial and ethnic 
groups are identified with emotional disturbance, the risk difference 
is 5 percentage points.

  Table 4--Example Risk Difference Calculation of Discipline for Black/
                   African-American Children in an LEA
------------------------------------------------------------------------
                                    Black/African-    Non-Black/African-
                                   American children   American children
------------------------------------------------------------------------
Percent of children suspended     15 percent........  10 percent.
 fewer than 10 days.
Risk Difference.................  15 percent - 10     N/A.
                                   percent = 5
                                   percent.
------------------------------------------------------------------------

    The Department found that approximately five States used a 
variation of risk difference in which they compared the risk of an 
outcome for a racial or ethnic group to the risk of an outcome to a 
State, local, or national population.
Difference and Relative Difference in Composition
    Fewer than five States use a composition method as part of their 
significant disproportionality methodology. The composition method 
compares a racial or ethnic group's representation among all children 
identified, placed, or disciplined to the racial or ethnic group's 
representation in another context, such as LEA enrollment.
    Consider, for example, an LEA where American Indian/Alaskan Native 
children represent 24 percent of all children with disabilities 
suspended or expelled from school for fewer than 10 days in a given 
year but only represent 8 percent of the LEA's enrollment. Using the 
composition method, a State calculates the difference in composition by 
subtracting representation in LEA enrollment (8 percent) from 
representation in out-of-school suspensions and expulsions of fewer 
than 10 days (24 percent). A positive figure--16 percentage points in 
this case--is indicative of overrepresentation.

  Table 5--Example Calculations of Difference in Composition for Discipline for American Indian/Alaska Native,
                              Black/African-American, and White Children in an LEA
----------------------------------------------------------------------------------------------------------------
                                                            American Indian/   Black/African-
                                                              Alaska Native       American            White
----------------------------------------------------------------------------------------------------------------
Percent of children suspended fewer than 10 days..........                24                36                40
Percent of total enrollment...............................                 8                32                60
Difference in composition.................................      24 - 8 = +16      36 - 32 = +4     40 - 60 = -20
----------------------------------------------------------------------------------------------------------------

    Alternatively, a State may calculate the relative difference in 
composition by dividing the representation in LEA enrollment by 
representation in out-of-school suspensions and expulsions of fewer 
than 10 days (24 percent/8 percent). A number greater than one--3.0 in 
this case--is indicative of overrepresentation.

          Table 6--Example Calculation of a Relative Difference for Discipline in Composition in an LEA
----------------------------------------------------------------------------------------------------------------
                                                            American Indian/   Black/African-
                                                              Alaska Native       American            White
----------------------------------------------------------------------------------------------------------------
Percent of children suspended fewer than 10 days..........                24                36                40
Percent of total enrollment...............................                 8                32                60
Relative difference in composition........................        24/8 = 3.0       36/32 = 1.1       40/60 = 0.7
----------------------------------------------------------------------------------------------------------------


[[Page 10976]]

2. Most States Use Risk Ratio Thresholds to Differentiate 
Disproportionality From Significant Disproportionality
    The 45 States using the risk ratio method or one of its variations 
define a risk ratio threshold, over which disproportionality is 
considered significant. The Department found that the most common risk 
ratio threshold used by States was 4.0 (16 States), with 7 States each 
using 3.0 or 5.0.
    Fewer than five States use the E-formula method to establish 
thresholds, which shift based on the size of the LEA analyzed. This 
approach can be used to develop thresholds for the risk ratio method, 
or for the composition method. (IDEA Data Center 2014.) The E-Formula, 
when used with a composition method, is:
[GRAPHIC] [TIFF OMITTED] TP02MR16.001

where A is the percentage of the same ethnic minority group in the LEA 
enrollment, N is the total special education enrollment in the LEA, and 
E is the maximum percentage (the resulting threshold) of the total 
special education enrollment in an LEA allowed for a specific ethnic 
minority group. For example, consider a State using a composition 
method, analyzing an LEA where 10 percent of the population consists of 
Black/African-American children and the total number of children with 
disabilities in the LEA is 1,000. Based on the E-formula, the threshold 
for that LEA for the identification of Black/African-American children 
would be 10.9 percent (i.e., 10 + Sqrt [(100 x 90/1000)] = 10.9). In 
this case, a State would find an LEA to have significant 
disproportionality if the risk of identification for Black/African-
American children exceeded 10.9 percent. (IDEA Data Center 2014.)
3. Many States Have Minimum Cell Size Requirements
    The Department also found that a number of States restrict their 
assessment of significant disproportionality to include only those LEAs 
that have sufficient numbers of children to generate stable 
calculations. When an LEA has a particularly small number of children 
in a particular racial or ethnic group, relatively small changes in 
enrollment could result in large changes in the calculated risk ratio.
    For example, if an LEA identified non-American Indian/Alaska Native 
children as being children with disabilities at a rate of 15 percent 
and had identified one of its four American Indian/Alaska Native 
children as having a disability, its calculated risk ratio would be 
1.67 (25 percent divided by 15 percent). However, if one additional 
American Indian/Alaska Native student with a disability moved into the 
LEA, the risk ratio would increase to 2.67 (40 percent divided by 15 
percent). Alternatively, if the American Indian/Alaska Native student 
with a disability left the LEA, the risk ratio would decrease to zero. 
Given the statutory consequences associated with being identified as 
having significant disproportionality, States have sought to minimize 
such large variations based on small changes in enrollment.
    Overall, 30 States and the District and Columbia reported using 
some form of minimum cell size requirement--where the cell is generally 
defined as the number of children for the racial or ethnic group of 
interest, the number of children in the comparison group, or both--to 
accomplish this goal.
    Of the States that use minimum cell size requirements, 11 use more 
than one cell definition. For example, nine States prescribe minimum 
cell sizes for both the number of children with disabilities in the 
racial or ethnic group being analyzed and the number of children with 
disabilities in the comparison group. That is, if an LEA does not have 
a sufficiently large population of children with disabilities in both 
the racial and ethnic group of interest and in the comparison group, 
the LEA will be excluded from any determination of significant 
disproportionality.
    Some States define the cell in other ways, including the number of 
children enrolled in the LEA in the racial or ethnic group being 
analyzed (seven States) and the total number of children with 
disabilities enrolled in the district (1 State and the District of 
Columbia).
    Of the 18 States that use the most common cell size definition--the 
number of children with disabilities in the racial or ethnic group 
being analyzed--9 States use a minimum cell size of 10 and 4 States use 
a minimum cell size of 30.
    In general, the use of a minimum cell size will eliminate a certain 
number of LEAs from all or parts of a State's analysis. For example, if 
a State sets a minimum cell size of 10, any LEA with fewer than 10 
children in the particular group being analyzed will be eliminated from 
the analysis of significant disproportionality. As the minimum cell 
size increases, the number of LEAs eliminated from the analysis also 
increases. However, while smaller minimum cell sizes increase the 
number of LEAs being analyzed, they also increase the chances that 
small changes in enrollment will trigger a finding of significant 
disproportionality. (IDEA Data Center, 2014.) Note again the previous 
example in which a one-student change in the LEA's enrollment caused a 
large increase in the LEA's calculated risk ratio.
4. Many States Use Multiple Years of Data To Determine Significant 
Disproportionality
    Another way States have identified significant disproportionality 
in LEAs with small numbers of children is to identify an LEA only after 
its risk ratio is above a certain threshold for a number of consecutive 
years (e.g., two or three years). Identifying an LEA as having 
significant disproportionality only if it is above a threshold for 
multiple, consecutive years is a way of separating LEAs that have high 
risk ratios that are statistical anomalies from those in which there 
are persistent underlying problems.
    For example, LEAs with generally low levels of disproportionality 
may experience an unexpectedly high level of disproportionality in one 
year due to factors that do not represent the kind of consistent, 
underlying problems in identification, placement, or disciplinary 
removals that may be addressed through comprehensive CEIS or revisions 
to policies, practices, and procedures. LEAs with consistent, high 
levels of disproportionality are more likely to need a revision of 
policies, practices and procedures, and, potentially, comprehensive 
CEIS, to address the underlying factors contributing to those high 
levels. (Bollmer, Bethel, Munk & Bitterman, 2014.)
    Of the 23 States that use multiple years of data, 13 States require 
an LEA to exceed the threshold for three consecutive years before 
finding significant disproportionality, while 9 States require 2 
consecutive years. One State requires an LEA to exceed the threshold 
for four consecutive years prior to making a determination.
5. Low Overall Identification of Significant Disproportionality Across 
All States and All Methodologies Used
    The Department reviewed the frequency with which States identified 
significant disproportionality using IDEA section 618 data, and, during 
SY 2012-2013, 28 States and the District of Columbia identified any 
LEAs with significant disproportionality. Together, these States 
identified 491 LEAs (3 percent of LEAs nationwide), somewhat higher 
than the 356 LEAs identified in SY 2010-2011. The majority of the 
identified LEAs were in a small number

[[Page 10977]]

of States--75 percent of all identified LEAs were located in seven 
States: California (10 percent of all LEAs identified), Indiana (12 
percent), Louisiana (16 percent), Michigan (4 percent), New York (16 
percent), Ohio (11 percent), and Rhode Island (6 percent). Based on the 
Department's Digest of Education Statistics, these seven States 
accounted for only 20 percent of all regular school districts \3\ in 
the country. (2011-12 and 2012-13.)
---------------------------------------------------------------------------

    \3\ Regular school districts include both independent districts 
and those that are a dependent segment of a local government. 
Independent charter schools and other agencies are not included.
---------------------------------------------------------------------------

    Of the States that identified LEAs with significant 
disproportionality, the Department determined that 11 States identified 
LEAs in only one category of analysis. For example, Alabama, Arkansas, 
Connecticut, Delaware, and Virginia only identified significant 
disproportionality with respect to identification with a particular 
impairment. Only the District of Columbia and four States--Georgia, 
Indiana, Mississippi, and New York--identified LEAs with significant 
disproportionality in all three categories of analysis.
6. Overrepresentation and Under-Identification of Children of Color in 
Special Education
    While decades of research, Congress, and GAO have found that the 
overrepresentation of children of color among children with 
disabilities is a significant problem, some experts and respondents to 
the June 2014 RFI have noted that under-identification in special 
education is a problem for children of color in a number of 
communities. These experts and respondents highlight the possibility 
that policies and practices intended to reduce overrepresentation may 
exacerbate inequity in special education by reducing access to special 
education and related services for children of color. (Morgan, P.L., 
Farkas, G., Hillemeier, M.M., Mattison, R., Maczuga, S., Li, H. & Cook, 
M., 2015.) Many of these experts suggest that, when taking into account 
differential exposure to various risk factors for disability, there is 
little to no evidence of over-identification for special education.
    Based on child count data submitted by the States under Section 618 
of the IDEA, racial and ethnic minorities are identified as being 
children with disabilities at a higher rate than their white peers. 
(U.S. Department of Education and U.S. Census Bureau, 2013.) In SY 
2012-2013, for example, Black/African-American children were 2.1 times 
as likely as all other children to receive special education and 
related services for an emotional disturbance. American Indian/Alaska 
Native children were 1.8 times more likely than all other racial or 
ethnic groups to receive special education and related services for 
specific learning disabilities.
    At the LEA level, racial and ethnic disparities in special 
education are more pronounced. For example, while nationally Black/
African-American children were 2.1 times more likely than their peers 
to be identified as having an emotional disability, the Department 
found that more than 1,500 individual LEAs identified at least one 
racial or ethnic group as having an emotional disability at 3 times or 
more the rate of other children in that LEA for 3 or more consecutive 
years (SY 2011-2012, SY 2012-2013, and SY 2013-2014).
    The rate of identification of children as children with 
disabilities varies across racial and ethnic groups both nationally and 
locally. However, as noted by numerous researchers, various racial and 
ethnic groups may have differential exposure to a number of other risk 
factors for disability including, but not limited to, low socioeconomic 
status, low birth weight, and lack of health insurance. (Morgan, P.L., 
et al., 2015.)
    Morgan, et al., (2015) compared Black/African-American, Hispanic/
Latino, and other children of color to their White peers with respect 
to identification for one of five impairments (learning disabilities, 
speech or language impairments, intellectual disabilities, health 
impairments, and emotional disturbance). After controlling for a number 
of covariates, the authors found that children of color were less 
likely than otherwise similar White, English-speaking children to be 
identified as having disabilities (in some cases, by up to 75 percent).
    While this study used nationally representative data from the Early 
Childhood Longitudinal Study--Kindergarten (ECLS-K), there were some 
limitations to the analysis. The authors studied a single cohort of 
children, limiting their ability to detect the impacts of external 
effects, such as changes in State or Federal policy, that may have 
impacted the findings. Additionally, the study was unable to include 
controls for local-level variation (e.g., school to school), which 
prior research (Hibel, Farkas, and Morgan 2010) has shown can mitigate 
such findings of under-identification.
    A separate study examined the influence of school- and district-
level characteristics--specifically racial and ethnic composition and 
economic disadvantage--on the likelihood of special education 
identification for Black/African-American and Hispanic/Latino children. 
(Ramey, 2015.) The author found that, on average, schools and districts 
with larger Black/African-American and Hispanic/Latino populations had 
lower rates of Black/African-American and Hispanic/Latino children 
receiving services under IDEA for emotional disturbances or other 
health impairment. Further, the author found that, in less 
disadvantaged districts, there is a negative correlation between the 
percentage of Black/African-American children in a school and receipt 
of IDEA services. On average, Black/African-American children in these 
more affluent school districts were less likely to receive IDEA 
services as the percentage enrollment of Black/African-American 
children' increases. By contrast, the author found no significant 
association between Black/African-American enrollment and the 
likelihood of receiving IDEA services in more disadvantaged districts. 
Based on this review of recent research, and the analysis of child 
count data, the Department found clear evidence that overrepresentation 
on the basis of race and ethnicity continues to exist at both the 
national and local levels. The Department's review of research found 
that overrepresentation and under-identification by race and ethnicity 
are both influenced by factors such as racial isolation and poverty. 
However, research that investigates whether overrepresentation and 
under-identification of children of color in special education co-occur 
at the local level is inconclusive. The Department has included a 
directed question to specifically request public comment on strategies 
to prevent the under-identification of children of color in special 
education.
    At the same time, the review also demonstrates that any effort to 
identify significant disproportionality in LEAs should be designed to 
ensure that children with disabilities receive the special education 
and related services that they need and not create incentives for LEAs 
not to identify children as children with disabilities or to place them 
in inappropriate educational settings. It is important to do so to 
ensure that all children have the opportunity to participate and 
succeed in the general education curriculum to the greatest extent 
possible.
    In addition, variation across States in how they measure and 
determine

[[Page 10978]]

significant disproportionality inherently hampers efforts at national 
analyses. While all of the methodologies currently being used by States 
have strengths and weaknesses, the application of a standard 
methodology will help increase our understanding of these effects in 
LEAs across the country and may, in time, help strengthen our 
understanding of the variations in rates of identification, placement, 
and disciplinary removals of children with disabilities of different 
racial and ethnic groups while also identifying best practices in 
reducing inappropriate practices nationwide.

D. The Proposed Standard Methodology

    To determine whether significant disproportionality on the basis of 
race and ethnicity is occurring in the State or the LEAs of the State, 
the Department proposes to require States to use a standard methodology 
that consists of specific methods for calculating racial or ethnic 
disparities, specific metrics that the States must analyze for racial 
and ethnic disparities, limitations on the minimum cell sizes State may 
use to exclude LEAs from any determinations of significant 
disproportionality, and specific flexibilities States may consider when 
making determinations of significant disproportionality.
    Accordingly, to determine significant disproportionality, we 
propose to require States to use the risk ratio method or the alternate 
risk ratio method (if the total number of children in the comparison 
group within the LEA is fewer than 10 or if the risk for the comparison 
group is zero, respectively).
    We propose that States calculate the risk ratio, or alternate risk 
ratio, for each category of analysis using the following long-standing 
section 618 data reporting as noted by the Department in OSEP 
Memorandum 08-09 (July 28, 2008) and established, following notice and 
comment, in OMB-approved data collections 1875-0240 and 1820-0517:

     Identification of children ages 3 through 21 as 
children with disabilities;
     Identification of children ages 3 through 21 as 
children with intellectual disabilities, specific learning 
disabilities, emotional disturbance, speech or language impairments, 
other health impairments, and autism;
     Placement, including disciplinary removals from 
placement, of:
    (1) Children ages 6 through 21 inside a regular class less than 
40 percent of the day,
    (2) Children ages 6 through 21 inside a regular class no more 
than 79 percent of the day and no less than 40 percent of the day,
    (3) Children ages 6 through 21 inside separate schools and 
residential facilities, not including homebound or hospital 
settings, correctional facilities, or private schools,
    (4) Children ages 3 through 21 in out-of-school suspensions and 
expulsions of 10 days or fewer,
    (5) Children ages 3 through 21 in out-of-school suspensions and 
expulsions of more than 10 days,
    (6) Children ages 3 through 21 in in-school suspensions of 10 
days or fewer,
    (7) Children ages 3 through 21 in in-school suspensions of more 
than 10 days, and
    (8) Disciplinary removals in total.

    We propose to require States to calculate the risk ratio or 
alternate risk ratio, as appropriate, based on a minimum cell size no 
greater than 10 children when analyzing identification and based on a 
minimum cell size no greater than 10 children with disabilities when 
analyzing disciplinary removal and placement. In all cases, especially 
those in which States opt to use a minimum cell size less than 10, 
States must be aware of, and conduct their analyses consistently with 
the confidentiality provisions of FERPA, its implementing regulations 
in 34 CFR part 99, and the reporting requirements of section 618(b) of 
IDEA.
    Under the proposed regulations, States may select risk ratio 
thresholds appropriate to their individual needs, provided that: (a) 
The thresholds are reasonable and (b) the thresholds are developed 
based on advice from stakeholders, including State Advisory Panels. 
Further, risk ratio thresholds would be subject to Departmental 
monitoring and enforcement for reasonableness. We propose to allow 
States to select different risk ratio thresholds for different 
categories of analysis (e.g., 3.5 for intellectual disability and 4.0 
for emotional disturbance). However, the use of different thresholds 
for different racial and ethnic groups, may violate applicable 
requirements of federal statutes and the Constitution.
    Finally, we propose that, although States would still be required 
to calculate risk ratios for their LEAs to determine significant 
disproportionality on an annual basis, States would have the 
flexibility to identify as having significant disproportionality only 
those LEAs that exceed their risk ratio threshold(s) for up to three 
prior consecutive years. We also propose to allow States not to 
identify LEAs that exceed the risk ratio threshold if they are making 
reasonable progress, as determined by the State, in lowering risk 
ratios from the preceding year.

II. Clarification That Statutory Remedies Apply to Disciplinary 
Removals

    When a State finds significant disproportionality based on race or 
ethnicity with respect to identification or placement, IDEA and its 
implementing regulations require a set of remedies intended to address 
the significant disproportionality. The State must: (1) Provide for the 
review, and, if appropriate, revision of policies, practices, and 
procedures to ensure that they comply with the requirements of IDEA; 
(2) require any LEA identified with significant disproportionality to 
reserve 15 percent of IDEA Part B funds to provide 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 policies, 
practices, and procedures. Section 618(d)(2) of IDEA (20 U.S.C. 
1418(d)(2)); 34 CFR 300.646(b).
    When Congress added discipline to section 618(d)(1) in 2004, it 
made no specific corresponding change to the introductory paragraph of 
section 618(d)(2). Therefore, although States are required under 
section 618(d)(1) to collect and examine data to determine if 
significant disproportionality is occurring with respect to the 
incidence, duration, and type of disciplinary actions in their State 
and their LEAs, the required actions set forth in section 618(d)(2) are 
not explicitly applied if a State determines that there is significant 
disproportionality with respect to ``disciplinary actions.'' The 
Department believes that this has resulted in a statutory ambiguity 
because disciplinary actions are generally removals of the student from 
his or her placement for varying lengths of time and may constitute a 
change in placement under certain circumstances. (See section 615(k) of 
IDEA.)
    The Department has, therefore, previously taken the position that 
the required remedies in 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.) We propose to adopt that long-standing interpretation 
into the Part B regulations.

III. Clarification of the Review and Revision of Policies, Practices, 
and Procedures

    As a consequence of a State determination of significant 
disproportionality in an LEA, a State must provide for the review and, 
if

[[Page 10979]]

appropriate, revision of policies, practices, and procedures to ensure 
compliance with the requirements of IDEA. Section 618(d)(2)(A) of IDEA 
(20 U.S.C. 1418(d)(2)(A)). In cases where it is appropriate to make 
revisions to policies, practices, or procedures, the LEA must publicly 
report on those revisions. Section 618(d)(2)(C) of IDEA (20 U.S.C. 
1418(d)(2)(C)).
    Consistent with the plain language of section 618(d)(2)(A), the 
Department has previously interpreted the statute to require States to 
provide for a review of policies, practices, and procedures for 
compliance with the requirements of IDEA. See OSEP Memorandum 07-09. 
However, the Department notes that this guidance did not clearly 
explain that States must provide for this review in every year in which 
the LEA is identified with significant disproportionality.
    If significant disproportionality is found in identification, 
placement, or discipline, a review of policies, practices, and 
procedures in that area must take place to ensure compliance with the 
IDEA. Additionally, in accordance with their responsibility under 34 
CFR 300.201, in providing for the education of children with 
disabilities, LEAs must have in effect policies and procedures and 
programs that are consistent with the State's child find policies and 
procedures established under 34 CFR 300.111. Therefore, LEAs identified 
with significant disproportionality with respect to identification must 
continue to properly implement the State's child find policies and 
procedures. An annual review of policies, practices, and procedures 
that includes a review for compliance with the State's child find 
policies and procedures is intended to prevent such LEAs from 
inappropriately reducing the identification of children as children 
with disabilities.
    To ensure that LEAs identified in multiple years review their 
policies, practices, and procedures every year in which they are 
identified with significant disproportionality, we propose that the 
regulation clarify that the review of policies, practices, and 
procedures must take place in every year in which the LEA is identified 
with significant disproportionality.
    Further, as our proposed standard methodology allows States the 
flexibility to select a minimum cell size lower than 10, we propose to 
add language reminding States that public reporting of LEA revisions of 
policies, practices, and procedures must be consistent with the 
confidentiality provisions of FERPA, its implementing regulations in 34 
CFR part 99, and section 618(b)(1) of IDEA.

IV. Expanding the Scope of Comprehensive Coordinated Early Intervening 
Services

    Under section 613(f)(1) of IDEA (20 U.S.C. 1413(f)(1)), 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 three) who have not 
been identified as needing special education or related services but 
who need additional academic or behavioral support to succeed in a 
general education environment.
    The activities that may be included in implementing these services 
are: (1) Professional development for teachers and other school staff 
to enable them to deliver scientifically based academic and behavioral 
interventions, including scientifically based literacy instruction, 
and, where appropriate, instruction on the use of adaptive and 
instructional software; and (2) providing educational and behavioral 
evaluations, services, and supports, including scientifically based 
literacy instruction. Section 613(f)(2) of IDEA (20 U.S.C. 1413(f)(2)).
    Section 618(d)(2)(B) of IDEA (20 U.S.C. 1418(d)(2)(B)) provides 
that, in the case of a determination of significant disproportionality, 
the State or the Secretary of the Interior must require any LEA so 
identified to reserve 15 percent of its Part B (section 611 and section 
619) subgrant, the maximum amount of funds under section 613(f), 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'' differs from ``CEIS'' in section 613(f) of IDEA 
(20 U.S.C. 1413(f)). The Department's current regulations in 34 CFR 
300.646(b)(2) only clarify that funds reserved for comprehensive CEIS 
must be used to serve particularly, but not exclusively, children from 
those groups that were significantly overidentified.
    In OSEP Memorandum 07-09, the Department 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. Thus, we interpreted IDEA as not allowing an LEA 
identified with significant disproportionality to use funds reserved 
for comprehensive CEIS to serve preschool children ages three through 
five, with or without disabilities, or children with disabilities in 
kindergarten through grade 12. We also did not interpret IDEA as 
requiring the State, as part of implementing comprehensive CEIS, to 
identify and address the factors contributing to the significant 
disproportionality. We now propose to amend the current regulation to 
interpret the term ``comprehensive'' in section 618(d)(2)(B) of IDEA to 
allow any LEA identified with significant disproportionality to expand 
the use of funds reserved for comprehensive CEIS to serve children from 
age 3 through grade 12, with and without disabilities.
    As part of the IDEA Part B LEA Maintenance of Effort (MOE) 
Reduction and CEIS data collection, States are required to report on 
the total number of children that 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. This is 
consistent with the information LEAs are required to report to States 
under IDEA section 613(f)(4) and 34 CFR 300.226(d). After these 
regulations are final, the Department is planning to provide guidance 
on what States must report in the LEA MOE Reduction and CEIS data 
collection and what LEAs must report to meet the requirement in IDEA 
section 613(f)(4) and 34 CFR 300.226(d).
    We also propose to require the LEA, as part of implementing 
comprehensive CEIS services, to identify and address the factors 
contributing to the significant disproportionality. These factors may 
include a lack of access to scientifically based instruction, and they 
may include economic, cultural, or linguistic barriers to appropriate 
identification, placement, or disciplinary removal. Comprehensive CEIS 
may also include professional development and educational and 
behavioral evaluations, services, and supports. Requiring LEAs to carry 
out activities to identify and address the factors contributing to the 
significant disproportionality is consistent with the statutory 
requirement that LEAs must use funds reserved for comprehensive CEIS to 
serve children in the LEA, particularly children in those groups that 
were significantly overidentified. Comprehensive CEIS funds must be 
used to carry out activities to identify and address the factors 
contributing to the significant disproportionality. Although not 
specifically prohibited, we generally would not expect LEAs to use

[[Page 10980]]

these funds to conduct an evaluation to determine whether a child has a 
disability or to provide special education and related services already 
identified in a child's IEP.

References

Albrecht, S.J., Skiba, R.J., Losen, D.J., Chung, C., & Middleburg, 
L. (2012). Federal Policy on Disproportionality in Special 
Education: Is it Moving us Forward? Journal of Disability Policy 
Studies, 23(1), 14-25.
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.
Brooks, K., Schiraldi, V., & Zeidenberg, J. (2000). School house 
hype: two years later. Washington, DC: Justice Policy Institute/
Covington, KY: Children's Law Center. Available at http://www.justicepolicy.org/uploads/justicepolicy/documents/school_house_hype.pdf.
Center for American Progress. (2014). Why We Need a Federal 
Preschool Investment in 6 Charts. Washington, DC: Herzfeldt-
Kamprath, R. & Adamu, Maryam. Retrieved from https://www.americanprogress.org/issues/early-childhood/news/2014/12/09/102737/why-we-need-a-federal-preschool-investment-in-6-charts/.
Civil Rights Project. (2000). Opportunities suspended: the 
devastating consequences of zero tolerance and school discipline 
policies. Cambridge, MA. Retrieved from http://civilrightsproject.ucla.edu/research/k-12-education/school-discipline/opportunities-suspended-the-devastating-consequences-of-zero-tolerance-and-school-discipline-policies/crp-opportunities-suspended-zero-tolerance-2000.pdf.
De Valazuela, J.S., Copeland, S.R., Huaqing Qi, C., & Park, M. 
(2006) Examining Educational Equity: Revisiting the Disproportionate 
Representation of Minority Students in Special Education. 
Exceptional Children, 72(4), 425-441.
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.
Feinberg, E., Silverstein, M., Donahue, S. & Bliss, R. (2011). The 
impact of race on participation in Part C early intervention 
services. Journal of Developmental and Behavioral Pediatrics, 32(4), 
1-8.
Fernald, A., V.A. Marchman, & A. Weisleder. 2013. SES Differences in 
Language Processing Skill and Vocabulary Are Evident at 18 Months. 
Developmental Science 16(2), 234-48.
Hart, B., & T.R. Risley. (1995). Meaningful Differences in the 
Everyday Experience of Young American Children. Baltimore, MD: 
Brookes.
Hibel, J., Farkas, G., & Morgan, P. (2010). Who is placed into 
special education? Sociology of Education, 83(4), 312-332.
IDEA Data Center. (2014). Methods for Assessing Racial/Ethnic 
Disproportionality in Special Education: A Technical Assistance 
Guide (Revised), Rockville, MD: Bollmer, J., Bethel, J., Munk, T. & 
Bitterman, A.
Lamont, J.H., Devore, C.D., Allison, M., Ancona, R., Barnett, S., 
Gunther, R., & Young, T. (2013). Out-of-school suspension and 
expulsion. Pediatrics, 131(3), e1000-e1007.
Lee, T., Cornell, D., Gregory, A., & Xitao, F. (2011). High 
suspension schools and dropout rates for black and white students. 
Education & Treatment Of Children, 34(2), 167-192.
Losen, D.J. & Skiba, R.J. (2010). Suspended education: urban middle 
schools in crisis. Montgomery, AL: Southern Poverty Law Center. 
Retrieved from www.splcenter.org/sites/default/files/downloads/publication/Suspended_Education.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.
Morgan, P.L., Farkas, G., Hillemeir, M.M. & Maczuga, S. (2012). Are 
Minority Children Disproportionately Represented in Early 
Intervention and Early Childhood Education? Educational Researcher, 
41(9), 339-351.
My Brother's Keeper Task Force. (2014). Report to the President. 
Washington, DC. Retrieved from www.whitehouse.gov/sites/default/files/docs/053014_mbk_report.pdf.
Ramey, D.M. (2015). The social structure of criminalized and 
medicalized school discipline. Sociology of Education, 88(3), 1-21.
Reynolds, A., Temple, J., Robertson, D., Mann, E. (2001). Long-term 
effects of an early childhood interventions on educational 
achievement and juvenile arrest. JAMA, 285(18), 2339-2346, 
doi:10.1001/jama.285.18.2339.
Rosenberg, S., Zhang, D. & Robinson, C. (2008). Prevalence of 
developmental delays and participation in early intervention 
services for young children. Pediatrics, 121(6), e1503-e1509, 
doi;10,1542/peds.2007-1680.
Shankoff, J. & Phillips, D. (Eds.) (2000). From Neurons to 
Neighborhoods: The Science of Early Childhood Development. 
Washington, DC: National Academy Press.
U.S. Bureau of the Census. (2013). Intercensal Estimates of the 
Resident Population by Single Year of Age, Sex, Race, and Hispanic 
Origin for States and the United States: April 1, 2000 to July 1, 
2013. Washington, DC.
U.S. Department of Education, National Center for Education 
Statistics. (2012). First-Time Kindergartners in 2010-11: First 
Findings From the Kindergarten Rounds of the Early Childhood 
Longitudinal Study, Kindergarten Class of 2010-11 (ECLS-K:2011) 
(NCES 2012-049). Washington, DC: Mulligan, G.M., Hastedt, S., & 
McCarroll, J.C. Retrieved from http://nces.ed.gov/pubsearch.
U.S. Department of Education, National Center for Education 
Statistics. ``Common Core of Data (CCD): Local Education Agency 
Universe Survey, 2011-12 and 2012-13.'' Retrieved from http://nces.ed.gov/ccd/pubagency.asp.
U.S. Department of Education, Office of Special Education Programs. 
``Disproportionality of Racial and Ethnic Groups in Special 
Education.'' Memorandum OSEP 07-079, April 24, 2007. Retrieved from 
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep07-09disproportionalityofracialandethnicgroupsinspecialeducation.doc.
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 http://www2.ed.gov/policy/speced/guid/idea/ceis.html.
U.S. Department of Education, Office of Special Education Programs. 
``Questions and Answers on Discipline Procedures, Revised June 
2009.'' Washington, DC. Retrieved from http://www2.ed.gov/policy/speced/guid/idea/discipline-q-a.doc.
U.S. Department of Education, Office of Special Education and 
Rehabilitative Services. (2014). 36th Annual Report to Congress on 
the Implementation of the Individuals with Disabilities Education 
Act 2014, Washington, DC. Retrieved from www.edpubs.gov/document/ed005594p.pdf?cd=299.
U.S. Department of Education, EDFacts Metadata and Process System 
(EMAPS), OMB #1820 0689: ``IDEA Part B Maintenance of Effort (MOE) 
Reduction and Coordinated Early Intervening Services (CEIS),'' 2013.
U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB 
#1875-0240: ``IDEA Part B Child Count and Educational Environments 
Collection,'' 2013.
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 http://www.gao.gov/products/GAO-13-137.
Valdivia, R. (2006). Disproportionality at the Preschool Level. The 
Special Edge 20(1), 1. Retrieved from www.calstat.org/publications/article_detail.php?a_id=67&nl_id=8.
Summary of Proposed Changes
    These proposed regulations address what States must do to identify 
and address significant disproportionality based on race and ethnicity 
occurring in States and LEAs in the States.
    These proposed regulations would--
     Add Sec. Sec.  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;
     Add Sec.  300.647(c) to provide the flexibilities that 
States, at their discretion, may consider when determining whether 
significant disproportionality exists. States may

[[Page 10981]]

choose to identify an LEA as having significant disproportionality 
after an LEA exceeds a risk ratio threshold for up to three consecutive 
years. A State also has the flexibility not to identify an LEA with 
significant disproportionality if the LEA is making reasonable progress 
in lowering the risk ratios even if they are still above the State's 
risk ratio thresholds, where reasonable progress is defined by the 
State;
     Amend current Sec.  300.646(b) (proposed Sec.  300.646(c)) 
to clarify that the remedies in section 618(d)(2) of IDEA are triggered 
if a State makes a determination of significant disproportionality with 
respect to disciplinary removals from placement;
     Amend current Sec.  300.646(b)(1) and (3) (proposed Sec.  
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 FERPA, its 
implementing regulations in 34 CFR part 99, and section 618(b)(1) of 
IDEA; and
     Amend current Sec.  300.646(b)(2) (proposed Sec.  
300.646(d)) to define which student populations 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. The proposed regulations would require that, as part of 
implementing the comprehensive CEIS, an LEA must identify and address 
the factors contributing to the significant disproportionality.
Significant Proposed Regulations
    We group major issues according to subject, with sections of the 
proposed regulations in parentheses. Generally, we do not address 
proposed regulatory changes that are technical or otherwise minor in 
effect.

I. A Standard Methodology for Determining Significant 
Disproportionality

Risk Ratios (Proposed Sec.  300.646(b); Sec.  300.647(a)(2); Sec.  
300.647(a)(3); Sec.  300.647(b)(6))

    Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) requires 
every State that receives IDEA Part B funds to collect and examine data 
to determine if significant disproportionality based on race or 
ethnicity exists in the State or the LEAs of the State. IDEA does not 
define ``significant disproportionality'' or instruct how data must be 
collected and examined.
    Current Regulations: Current Sec.  300.646(a) imposes the same 
requirement as the statute and does not define ``significant 
disproportionality'' or instruct how data must be collected or 
examined.
    Proposed Regulations: Proposed Sec.  300.646(b) would require that 
States use a standard methodology to determine whether significant 
disproportionality based on race or ethnicity exists in the State or in 
the LEAs of the State.
    Proposed Sec.  300.647(b) would require the use of risk ratios as 
part of the standard methodology for determining significant 
disproportionality.
    Proposed Sec.  300.647(a)(2) would define ``risk'' as the 
likelihood of a particular outcome (identification, placement, or 
disciplinary removal) for a particular racial or ethnic group within an 
LEA. Risk is calculated by dividing the number of children from a given 
racial or ethnic group identified with a disability, placed, or 
disciplined in the LEA by the total number of children from that racial 
or ethnic group enrolled in schools in the LEA.
    Proposed Sec.  300.647(a)(3) would define ``risk ratio'' as the 
risk of an outcome for one racial or ethnic group in an LEA as compared 
to the risk of that outcome for all other racial and ethnic groups in 
the same LEA. Risk ratio is calculated by dividing the risk for 
children in one racial or ethnic group within an LEA by the risk of 
that same outcome for all other racial or ethnic groups within that 
LEA.
    Reasons: The Department proposes to require the use of this common 
analytical method for determining significant disproportionality to 
increase transparency in LEA identification across States for LEA, 
State, and Federal officials, as well as the general public. The 
Department proposes to require that States use the most common 
analytical method in use among the States during SY 2013-2014. Based on 
the SY 2013-14 SSS, 45 States use one or more forms of the risk ratio 
and, of these, 39 use the risk ratio as their sole method for 
determining significant disproportionality.
    We acknowledge that most of the methods currently in use by States, 
including the risk ratio, have benefits and drawbacks. In selecting a 
method, the Department prioritized methods that LEAs and members of the 
public could easily interpret and those that would create the least 
disturbance in States' current methodologies for determining 
significant disproportionality. At the same time, we closely examined 
each method's strengths and weaknesses in identifying disparities by 
race and ethnicity.
    The risk ratio is the method that would create the least burden for 
States and provide the public with information that is easily 
interpreted (a comparison of the risk of an outcome). We also found 
that the potential drawbacks of the risk ratio method's utility in 
identifying disparities (i.e., volatility when applied to small 
populations, inability to calculate when risk to a comparison group is 
zero) can be minimized through the use of minimum cell sizes, multiple 
years of data, and, when needed, alternative forms of the risk ratio.
    In examining other methods, the Department found none that contain 
a balance of transparency, limited burden, and utility similar to the 
risk ratio. With respect to transparency and ease of comprehension, the 
alternate risk ratio (identical to the risk ratio, but with State-level 
data as the comparison group), the risk difference (another comparison 
of the risk of an outcome), and the composition methods (a comparison 
of representation in two contexts) are similar to the risk ratio. 
Additionally, the alternate risk ratio and risk difference methods can 
be used when risk to an LEA-level comparison group is zero. However, 
these methods are rarely used among the States.
    Further, the alternate risk ratio method uses State-level data in 
place of LEA-level data to compare risk to racial and ethnic groups. In 
cases where LEA-level data are available and reliable, the Department 
determined that these numbers are preferable to State data. While the 
weighted risk ratio method is used in approximately half of the States, 
it is relatively more complex because it uses State-level demographic 
information to add weights to the standard risk ratio.
    Of the possible methodologies that the Department might require 
States to use, we believe that the risk ratio would provide the 
greatest utility while resulting in the least burden on, and 
disturbance of, States' current methodologies for determining 
significant disproportionality.

Categories of Analysis (Proposed Sec.  300.647(b)(3) and (4))

    Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)(A)-(C)) 
requires States to determine whether significant disproportionality 
based on race or ethnicity exists in the State or the LEAs of the State 
with respect to identifying children as children with disabilities; 
identifying children as children with

[[Page 10982]]

disabilities in accordance with a particular impairment; placing 
children with disabilities in particular educational settings; and the 
incidence, duration, and type of disciplinary actions, including 
suspensions and expulsions.
    Current Regulations: Current Sec.  300.646(a) includes the same 
requirements as the statute.
    Proposed Regulations: Proposed Sec.  300.647(b)(3)(i)-(ii) and 
(b)(4)(i)-(viii) would provide additional specificity to the three 
categories of analysis required by IDEA and current Sec.  300.646(a). 
These sections would impose no new data collection requirements upon 
States. Rather, the regulations would require States to use data they 
already collect, analyze, and report to the Department to identify 
significant disproportionality in LEAs.
    For each of the enumerated racial and ethnic groups in an LEA, 
States would calculate the risk ratio for the identification of 
children ages 3 through 21 as children with disabilities and the risk 
ratio for identification of children ages 3 through 21 as children 
with--

     Intellectual disabilities;
     Specific learning disabilities,
     Emotional disturbance;
     Speech or language impairments;
     Other health impairments; and
     Autism.

    For children with disabilities in each racial and ethnic group, 
States would calculate the risk ratio for placements into particular 
educational settings, including disciplinary removals--

     For children ages 6 through 21, inside a regular class 
more than 40 percent of the day and less than 79 percent of the day;
     For children ages 6 through 21, inside a regular class 
less than 40 percent of the day;
     For children ages 6 through 21, inside separate schools 
and residential facilities, not including homebound or hospital 
settings, correctional facilities, or private schools;
     For children ages 3 through 21, out-of-school 
suspensions and expulsions of 10 days or fewer;
     For children ages 3 through 21, out-of-school 
suspensions and expulsions of more than 10 days;
     For children ages 3 through 21, in-school suspensions 
of 10 days or fewer;
     For children ages 3 through 21, in-school suspensions 
of more than 10 days; and
     For children 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.

    Reasons: It is the Department's intention to create greater 
uniformity among States in the metrics used to make determinations of 
significant disproportionality and, at the same time, disturb States' 
current operations as little as possible. The calculations we would 
require reflect the guidance for collecting and analyzing data for 
determining significant disproportionality that was provided to the 
States in the July 28, 2008, OSEP Memorandum 08-09 to Chief State 
School Officers and State Directors of Special Education. These 
calculations also have been established, following notice and comment, 
in OMB-approved data collections 1875-0240 and 1820-0517.
    As explained in OSEP Memorandum 08-09, the Department does not deem 
disproportionality for a given metric to be significant when there are 
very small numbers of children involved, as is the case with certain 
impairments, including deaf-blindness, developmental delay, hearing 
impairments, multiple disabilities, orthopedic impairments, traumatic 
brain injuries, and visual impairments. The Department's proposed Sec.  
300.647(b)(3)(ii) includes 6 of the 13 impairments listed in 34 CFR 
300.8(c), representing nearly 93 percent of all children with 
disabilities in SY 2012. (36th Annual Report to Congress, 2014.)
    Similarly, the Department does not propose to require States to 
analyze data for children who received special education and related 
services in homebound or hospital settings, correctional facilities, or 
in private schools (as a result of parental placement of the child in a 
private school) because those numbers are typically very small and an 
LEA generally has little, if any, control over these placements.
    The OSEP Memorandum 08-09 provides further justification of the 
Department's new requirements regarding calculation of significant 
disproportionality for placement. As IDEA requires children with 
disabilities to be placed in the least restrictive environment (LRE), 
the first placement option to be considered is the regular classroom 
with appropriate supplementary aides and services. For that reason, the 
Department proposes that States analyze disparities in placement in the 
regular classroom for less than 79 percent of the day, which is one of 
the long-standing categories States use to report educational 
environment data under section 618 of IDEA.
    As States are currently required to annually collect and submit 
these data to the Department under section 618(a)(1) of IDEA, the 
Department anticipates that using these data to determine significant 
disproportionality will take minimal additional capacity.

Risk Ratio Thresholds (Proposed Sec.  300.647(a)(4); Sec.  
300.647(b)(1); Sec.  300.647(b)(2) and (6))

    Statute: None.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  300.647(a)(4) would define 
``risk ratio threshold'' as the threshold over which disproportionality 
based on race or ethnicity is significant under proposed Sec.  
300.646(a) and (b).
    Proposed Sec.  300.647(b)(1) would require States to set reasonable 
risk ratio thresholds for each of the categories described in the 
proposed Sec. Sec.  300.647(b)(3) and (4). Proposed Sec.  
300.647(b)(1)(i) would require that risk ratio thresholds are based on 
advice from stakeholders, including their State Advisory Panels. 
Proposed Sec.  300.647(b)(1)(ii) would require that risk ratio 
thresholds be subject to monitoring and enforcement for reasonableness 
by the Secretary, consistent with section 616 of the Act.
    Proposed Sec.  300.647(b)(2) would require States to apply the risk 
ratio thresholds to risk ratios (or alternate risk ratios, as 
appropriate) to each of the categories described in the proposed Sec.  
300.647(b)(3) and (4) and to the following racial and ethnic groups 
within each category: Hispanic/Latino of any race; and, for individuals 
who are non-Hispanic/Latino only, American Indian/Alaska Native; Asian; 
Black/African American; Native Hawaiian or Other Pacific Islander; 
White; and two or more races.
    Proposed Sec.  300.647(b)(6) would require States to identify as 
having significant disproportionality any LEA where the risk ratio for 
any racial or ethnic group in any category of analysis in proposed 
Sec.  300.647(b)(3) and (4) is above the risk ratio threshold set by 
the State for that category.
    Reasons: Using a risk ratio to determine significant 
disproportionality necessitates setting a threshold that marks the 
boundary between disproportionality and significant disproportionality.
    The Department proposes limitations and requirements for 
establishing risk ratio thresholds to address current State practices. 
These proposed regulations are also intended to encourage States to 
differentiate LEAs with some disproportionality from LEAs with 
significant disproportionality. It is noteworthy that in SY 2012-2013, 
21 States did not identify significant disproportionality in any LEAs. 
Given the degree of disproportionality across all States, the 
Department is concerned that a number of States using risk ratios may 
have, intentionally or

[[Page 10983]]

unintentionally, set thresholds high enough to effectively nullify the 
statutory requirement that they identify LEAs with significant 
disproportionality.
    To address this, proposed Sec.  300.647(b)(1)(ii) requires that a 
risk ratio threshold be reasonable and subject to Departmental 
monitoring and enforcement. By requiring that States abide by a 
standard of reasonableness, the Department may initiate enforcement 
action against a State that selects an unreasonable risk ratio 
threshold.
    There are a number of factors that may influence whether a risk 
ratio threshold is reasonable for the State. For example, the 
Department may determine that a State has selected a reasonable 
threshold if it is likely to lead to a reduction in disparities on the 
basis of race or ethnicity or if it results in identification of LEAs 
in greatest need of intervention.
    By contrast, the Department may determine that a State has selected 
an unreasonable risk ratio threshold if it avoids identifying any LEAs 
(or significantly limits the identification of LEAs) with significant 
disparities 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.
    While a number of States rely on statistical significance tests and 
confidence intervals to set risk ratio thresholds, there may be some 
cases in which these may be unreasonable when compared with racial and 
ethnic disparities in the LEAs of the State. In States with non-normal 
distributions of LEA risk ratios, individual LEAs that significantly 
deviate from the typical range of risk ratios in other LEAs in the 
State (i.e., outliers), or a small number of total LEAs, a risk ratio 
threshold set two standard deviations above the Statewide average risk 
ratio may fail to identify LEAs in which significant racial or ethnic 
discrepancies exist in the identification, placement, and/or discipline 
of students with disabilities. Solely because a risk ratio threshold is 
the result of an objective calculation does not guarantee that the 
resulting threshold itself would be considered reasonable when it is 
compared to the racial and ethnic disparities taking place at the LEA 
level.
    Further, for States that identified no LEAs with significant 
disproportionality in SY 2012-2013, a standard of reasonableness will 
help to determine whether the State's choice of risk ratio threshold 
was appropriate. For example, selection of a risk ratio threshold that 
results in no determination of significant disproportionality may 
nonetheless be reasonable if a State has little or no 
overrepresentation on the basis of race or ethnicity. Put another way, 
a risk ratio threshold under which no LEAs are determined to have 
significant disproportionality could be reasonable if there is little 
or no overrepresentation on the basis of race or ethnicity in the LEAs 
of the State, much less significant disproportionality.
    In a case where a State does have some degree of racial or ethnic 
disparities, a risk ratio threshold that results in no determination of 
significant disproportionality may nonetheless be reasonable if none of 
its LEAs are outliers in a particular category when compared to other 
LEAs nationally. There are many ways that a State might make this 
comparison, and we provide one example here.
    For identification, we used IDEA section 618 data to, first, 
calculate a national median risk ratio based on LEA-level risk ratios, 
and, second, identify outlier LEAs based on the national median. The 
Department repeated this procedure for placement and disciplinary 
removal to develop 15 risk ratio thresholds, as outlined in Table 7.

Table 7--Number and Percentage of LEAs Exceeding a Risk Ratio Threshold,
 Equaling Two Median Absolute Deviations Above the Median of All LEAs,ab
                in SY 2011-12, SY 2012-13, and SY 2013-14
------------------------------------------------------------------------
                                                        Percent of LEAs
                                      Risk ratio       \d\ exceeding the
  Metrics used to measure three    threshold (based       risk ratio
     categories of analysis         on two  median       threshold for
 (identification, placement, and       absolute         three years (SY
     disciplinary removals)        deviations above    2011-12, SY 2012-
                                  the median for LEA   13, and SY 2013-
                                    risk ratios \c\           14)
------------------------------------------------------------------------
All disabilities................                1.67                16.7
Autism..........................                2.41                11.9
Emotional disturbance...........                2.96                 9.2
Intellectual disabilities.......                2.48                12.8
Other health impairments........                2.38                11.5
Specific learning disabilities..                1.97                15.2
Speech or language impairments..                2.03                10.6
Inside regular class 40 percent   ..................  ..................
 through 79 percent of the day..
Inside regular class less than                  1.65                 5.1
 40 percent of the day..........
Separate settings...............                2.13                 3.1
In-school suspensions <=10 days.                1.97                 3.5
In-school suspensions >10 days..                2.94                 0.5
Out-of-school suspensions/                      2.01                 5.7
 expulsions <=10 days...........
Out-of-school suspensions/                      3.00                 1.3
 expulsions >10 days............
    Total removals..............                1.87                 6.9
------------------------------------------------------------------------
\a\ N = 17,371 LEAs.
\b\ Excludes LEAs in one State, for any of the identification metrics,
  and all but one LEA in a second State, for the disciplinary removal
  metrics.
\c\ Medians and MADs exclude risk ratios of 0.
\d\ Only includes LEAs with outlier risk ratios for those racial and
  ethnic groups with at least 10 children.

    Additional information regarding the Department's example may be 
found at http://www2.ed.gov/programs/osepidea/618-data/LEA-racial-ethnic-disparities-tables/index.html.
    In proposing Sec.  300.647(b)(1)(ii), it is the Department's 
intention that the States' selection of risk ratio thresholds be 
subject to a Departmental monitoring and enforcement for 
reasonableness. If

[[Page 10984]]

the Department identifies a State that may have an unreasonable 
threshold, it would notify the State and request clarification 
regarding how the State believes the selection of risk ratio thresholds 
is reasonable. If a State provides an insufficient response, the 
Department would notify the State that it is not in compliance with the 
IDEA regulation requiring the State to set a reasonable risk ratio 
threshold, and the Department would take an 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. The 
Department anticipates that the requirement of reasonableness in 
proposed Sec.  300.647(b)(1) will not only help ensure the statutory 
requirement is meaningful but will also result in States requiring 
those LEAs with the largest disparities to direct resources to identify 
and correct practices that may violate not just IDEA but also Federal 
civil rights laws that prohibit discrimination on the basis of race, 
color, and national origin, such as Title VI of the Civil Rights Act of 
1964. Nothing in this proposed regulation will limit or insulate an LEA 
or SEA from enforcement action under other statutes. Proposed Sec.  
300.647(b)(1) would require States to select reasonable risk ratio 
thresholds that effectively identify LEAs with large racial and ethnic 
disparities, so that their policies, practices, and procedures may be 
reviewed consistent with section 618(d)(2)(A) of IDEA. This valuable 
self-examination may, depending upon the factual circumstances in the 
State or the LEA, reduce the risk of further compliance concerns.
    Proposed Sec.  300.647(b)(1)(i) would clarify the role of the State 
Advisory Panel in determining the risk ratio thresholds. Under section 
612(a)(21)(D) of IDEA (20 U.S.C. 1412(a)(21)(D)), 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 SEAs will submit to the Department 
under section 618 of IDEA--including the LEAs identified with 
significant disproportionality and the reason for the identification--
the State Advisory Panel should have a meaningful role in advising the 
SEA on these selections.
    Proposed Sec.  300.647(b)(1) would clarify that States may set a 
different risk ratio threshold for each of the categories in proposed 
Sec.  300.647(b)(3) and (4). States may need different thresholds in 
order to reasonably identify significant disproportionality for 
categories with different degrees of disparity. For example, if the 
LEAs in a State, on average, identify any one racial or ethnic group 
for emotional disturbance at a rate three times that of all other 
children but use disciplinary removals for any one racial or ethnic 
group at a rate five times that of all other children, the State may 
find it difficult to set a single threshold that would be reasonable 
for both emotional disturbance and disciplinary removals.
    In directed question 9, the Department has requested public comment 
on the proposed requirements regarding the development and application 
of risk ratio thresholds. The use of different risk ratio thresholds 
for different racial and ethnic groups may be constitutionally 
impermissible.
    Lastly, proposed Sec.  300.647(b)(2) would provide a complete list 
of the racial and ethnic groups that each State must analyze as part of 
the approach to defining and identifying significant 
disproportionality. This list of racial and ethnic groups is the same 
list of groups required for States' current IDEA section 618 data 
submissions, as explained in the Department's Final Guidance on 
Maintaining, Collecting, and Reporting Racial and Ethnic Data to the 
U.S. Department of Education. 72 FR 59266 (October 19, 2007).
    Again, within these guidelines, there are many ways a State may set 
reasonable risk ratio thresholds. For example, States may choose an 
appropriate value based on previous experience with particular 
thresholds (e.g., if, in the past, LEAs with risk ratios above 2.5 
were, after a review of policies, practices, and procedures, found to 
be non-compliant with the requirements of IDEA, while those under that 
threshold were generally not), or they may calculate the value using a 
data analysis that complies with proposed Sec.  300.647(b)(2).

Minimum Cell Sizes (Proposed Sec.  300.647(b)(3) and (4))

    Statute: None.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  300.647(b)(3) and (4) would 
require a minimum cell size no greater than 10 for risk ratio 
calculations. Specifically, to determine significant disproportionality 
in identification, States would calculate, for each LEA, risk ratios 
for all racial and ethnic groups that include a minimum number of 
children not larger than 10. To determine significant 
disproportionality in placement, including disciplinary removals from 
placement, States would calculate, for each LEA, risk ratios for all 
racial and ethnic groups that include a minimum number of children with 
disabilities not larger than 10.
    Reasons: The proposal to use a minimum cell size no greater than 10 
would ensure that States examine as many racial and ethnic groups for 
significant disproportionality in as many LEAs as possible while 
minimizing the effect that minor variations in the number of children 
in a given racial or ethnic group, or in the comparison group, have on 
LEAs risk ratios.
    For example, the graduation of a relatively small number of 
children with disabilities, while not reflecting any change in the 
policies, practices, and procedures of the LEA, could result in a large 
change in the calculated risk ratio for a particular category of 
analysis, particularly if those graduating children represented a 
sizable proportion of the total number of children with disabilities in 
a given racial or ethnic group.
    The minimum cell size included in proposed Sec.  300.647(b)(3) and 
(4) would allow States to exclude certain LEAs from a determination of 
significant disproportionality based on the number of children in the 
racial or ethnic group of interest and the number of children with 
disabilities in the racial or ethnic group of interest. For example, if 
an LEA has fewer than 10 Hispanic/Latino children, then the State may 
choose to exclude that LEA from a determination of whether significant 
disproportionality exists in the identification of Hispanic/Latino 
children. If an LEA has fewer than 10 Hispanic/Latino children with 
disabilities, then the State may choose to exclude that LEA from a 
determination of whether significant disproportionality exists in the 
placement or disciplinary removal of Hispanic/Latino children with 
disabilities.
    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 cell size is too 
small, more LEAs would be included in the analysis, but the likelihood 
of dramatic, 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 
disparities as there might be.

[[Page 10985]]

    Current research demonstrates that a minimum cell size of 10 
provides for a reasonable analysis without excluding too many LEAs from 
a determination of whether significant disproportionality on the basis 
of race exists. (Bollmer, et al., 2007; IDEA Data Center 2014).

Alternate Risk Ratios (Proposed Sec.  300.647(a)(1); Sec.  
300.647(b)(5))

    Statute: None.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  300.647(b)(5) would require 
States to use the alternate risk ratio in place of the risk ratio when, 
for any analysis category, an LEA has fewer than 10 children in the 
comparison group--all other racial and ethnic groups in the LEA--or the 
risk for children in all other racial and ethnic groups is zero.
    Proposed Sec.  300.647(a)(1) would define ``alternate risk ratio.'' 
Like risk ratio, alternate risk ratio measures the risk of an outcome 
for one racial or ethnic group in the LEA, but compares it to the risk 
of that outcome for all other racial and ethnic groups in the State, 
not all other racial and ethnic groups in the LEA. An alternate risk 
ratio is calculated by dividing the risk for children in one racial or 
ethnic group within an LEA by the risk of that same outcome for all 
other racial or ethnic groups within the State.
    Reasons: As explained in the discussion of minimum cell sizes, a 
risk ratio can produce more volatile results when applied to small 
numbers. Setting an appropriate minimum cell size is one way of 
addressing this limitation when there are too few children in the 
racial or ethnic group of interest. However, when an LEA has too few 
children in the comparison group--fewer than 10--experts recommend the 
use of the alternate risk ratio. (Bollmer, et al., 2007.) With the 
alternate risk ratio, the State population replaces the LEA population 
for the comparison group, permits the calculation, and produces results 
that are less volatile. Further, a risk ratio cannot be calculated at 
all if there are no children in the comparison group, or if the risk to 
children in the comparison group is zero (because a number cannot be 
divided by zero). In these specific cases, the Department has proposed 
to require States to use the alternate risk ratio as the method for 
measuring disparities in the LEA.

Flexibilities (Proposed Sec.  300.647(c))

    Statute: None.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  300.647(c) would provide 
States with additional flexibility in making determinations of 
significant disproportionality. In proposed Sec.  300.647(c)(1), 
although States would still calculate annual risk ratios for their 
LEAs, they would have the flexibility to identify only those LEAs that 
exceed the risk ratio threshold for a number of consecutive years, but 
no more than three.
    Proposed Sec.  300.647(c)(2) would allow States not to 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 from the immediate preceding year.
    Reasons: It is the Department's intention to reduce the likelihood 
that LEAs will be inappropriately identified with significant 
disproportionality by allowing States the flexibility to identify only 
those LEAs showing significant racial and ethnic disparities over a 
number of consecutive years. Measures of disproportionality can be 
variable if the number of children included in the analysis is small, 
as may be the case in small LEAs or in LEAs with a small racial or 
ethnic subgroup. However, LEAs are less likely to be identified based 
on volatile data if multiple years of data are taken into 
consideration. (IDEA Data Center, 2014.)
    This flexibility also adopts an existing common practice among 
States. Based on the SY 2013-14 SSS, 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. The Department proposes to allow States to use 
up to three prior consecutive years of data before an LEA is 
identified, which reflects the current most common practice among the 
States. States using this flexibility must use data from prior school 
years to determine whether any LEAs in their State should be identified 
as having significant disproportionality in the first (or second, as 
appropriate) year after the proposed regulation is adopted.
    Finally, with this regulation, the Department intends to empower 
States to focus their attention on those LEAs in which the level of 
disproportionality is not decreasing. We intend to allow States to 
leave undisturbed IDEA Part B funds that may be achieving the goal of 
reducing disparities in certain LEAs, as evidenced by reasonable 
progress determined by the State, in lowering their risk ratio, even 
though the LEA has a risk ratio that exceeds the State's risk ratio 
threshold.

II. Clarification That Statutory Remedies Apply to Disciplinary Actions 
(Proposed Sec.  300.646(a)(3) and (c))

    Statute: Section 618(d)(1)(C) of IDEA (20 U.S.C. 1418(d)(1)(C)) 
specifies that a State must provide for the collection and examination 
of data with respect to the incidence, duration, and type of 
disciplinary actions, including suspension and expulsions, to determine 
if significant disproportionality with respect to race and ethnicity is 
occurring in the State or the LEAs of the State. Section 618(d)(2) of 
IDEA (20 U.S.C. 1418(d)(2)) specifies the actions a State must take if 
it finds significant disproportionality based on race or ethnicity in 
the identification of children as children with disabilities or in 
their placement in particular educational settings. A State must 
provide for the review and, if appropriate, revision of the policies, 
practices, and procedures used in the identification or placement to 
ensure that these policies, practices, and procedures comply with the 
requirements of IDEA. The State must also require any LEA identified 
with significant disproportionality to reserve 15 percent of its IDEA 
Part B subgrant to provide comprehensive CEIS to children in the LEA, 
particularly children in those groups that were significantly 
overidentified, and require the LEA to publicly report on the revision 
of policies, practices, and procedures.
    Current Regulations: Current Sec.  300.646(a)(1) and (b)(1) restate 
the statute largely verbatim. Current Sec.  300.646(a)(1) requires LEAs 
to provide comprehensive CEIS particularly, but not exclusively, to 
children in those groups that were significantly overidentified.
    Proposed Regulations: Proposed Sec.  300.646(a)(3) would clarify 
that disciplinary actions under IDEA are considered removals from 
current placement, which is consistent with current Sec.  300.530. 
Proposed Sec.  300.646(c) would clarify that the State must implement 
the statutory remedies in section 618(d)(2) to address significant 
disproportionality with respect to disciplinary removals from 
placement.
    Reasons: Ensuring that States implement the statutory remedies will 
help address significant disproportionality in disciplinary removals 
from placement.
    Proposed Sec.  300.646(c) is based, in part, on the use of the term 
``placement'' in the introductory paragraph of section 618(d)(2). The 
Department reads the term ``placement'' to include

[[Page 10986]]

disciplinary removals of children with disabilities from their current 
placement, in accordance with section 615(k)(1) of IDEA (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).
    To the extent that section 618(d)(2) of IDEA specifies the remedies 
that States and LEAs must implement following a determination of 
significant disproportionality with respect to placement, the 
Department seeks to clarify that these remedies also follow a 
determination of significant disproportionality with respect to 
disciplinary removals from placement of any duration.
    This reading of ``placement'' aligns with OSERS' prior 
interpretations and guidance both on this issue--as outlined in the 
OSEP Questions and Answers on Discipline Procedures, Revised June 
2009--and the determination required under section 618(d)(1).

III. Clarification of the Review and Revision of Policies, Practices, 
and Procedures (Sec.  300.646(c))

    Statute: Section 618(d)(2)(A) (20 U.S.C. 1418(d)(A)) requires the 
State or the Secretary of Interior to provide for the review, and if 
appropriate, revision of policies, practices, and procedures to ensure 
compliance with the requirements of IDEA. Section 618(d)(2)(C) (20 
U.S.C. 1418(d)(C)) requires LEAs identified as having significant 
disproportionality to publicly report on any revisions to policies, 
practices, and procedures.
    Current Regulation: Current Sec.  300.646(b)(1) and (3) restate the 
statute largely verbatim.
    Proposed Regulation: Proposed Sec.  300.646(c)(1) would clarify 
that the review of policies, practices, and procedures must be 
conducted in every year in which any LEA is identified as having 
significant disproportionality.
    Proposed Sec.  300.646(c)(2) would restate the statutory 
requirement that, in the case of a determination of significant 
disproportionality, the LEA must publicly report on the revision of 
policies, practices, and procedures and add new language requiring that 
the report be consistent with the confidentiality provisions of FERPA 
and its implementing regulations in 34 CFR part 99, and section 
618(b)(1) of IDEA.
    Reasons: While the Department interprets section 618(d)(2)(A) of 
IDEA to require States to provide for an annual review of policies, 
practices, and procedures resulting from a determination of significant 
disproportionality, the requirement that LEAs identified in multiple 
years must review their policies, practices, and procedures every year 
in which they are identified with significant disproportionality is not 
sufficiently clear in the current regulation.
    When LEAs review and revise their policies, practices, and 
procedures, and publicly report on those revisions, there is a risk of 
disclosing personally identifiable information, particularly if the 
subgroup under examination is particularly small (e.g., 10 American 
Indian/Alaska Native children in an LEA, five of whom are children with 
disabilities). To reduce the risk of disclosing personally identifiable 
information, we have proposed Sec.  300.646(c)(2) to clarify that LEA 
reporting on the revision of policies, practices, and procedures be 
consistent with the confidentiality provisions of FERPA, its 
implementing regulations in 34 CFR part 99, and section 618(b)(1) 
reporting requirements.

IV. Expanding the Scope of Comprehensive Coordinated Early Intervening 
Services (Sec.  300.646(d))

    Statute: Section 618(d)(2)(B) (20 U.S.C. 1418(d)(2)(B)) requires 
any LEA identified as having significant disproportionality to reserve 
the maximum amount of funds under section 613(f) to provide 
comprehensive CEIS to serve children in the LEA, ``particularly 
children in those groups that were significantly overidentified.''
    Current Regulation: There are minor differences between the 
statutory language and current Sec.  300.646(b)(2). Current Sec.  
300.646(b)(2) requires comprehensive CEIS for children in the LEA, 
``particularly, but not exclusively, children that were significantly 
overidentified.''
    Proposed Regulation: Proposed Sec.  300.646(d)(1) and (2) would 
amend current Sec.  300.646(b)(2) to require the State to permit an LEA 
identified with significant disproportionality to provide comprehensive 
CEIS to preschool children ages 3 through 5, with or without 
disabilities, and children with disabilities in kindergarten through 
grade 12. The proposed regulation would also require the LEA, as part 
of implementing comprehensive CEIS, to identify and address the factors 
contributing to the significant disproportionality, which may include a 
lack of access to evidence-based instruction and economic, cultural, or 
linguistic barriers to appropriate identification, placement, or 
disciplinary removal.
    Proposed Sec.  300.646(d)(3) would prohibit LEAs from limiting the 
provision of comprehensive CEIS to children with disabilities.
    In directed question 10, the Department has requested public 
comment regarding restrictions on the use of comprehensive CEIS for 
children already receiving services under Part B of the IDEA.
    Reasons: We have determined it is appropriate to expand the 
population of children that can be served with IDEA Part B funds 
reserved for comprehensive CEIS to include children with disabilities 
(while prohibiting the exclusive use of comprehensive CEIS for children 
with disabilities) and preschool children with and without 
disabilities. We have also determined that it is appropriate to require 
LEAs, in implementing comprehensive CEIS, to identify and address the 
factors contributing to the significant disproportionality.
    Regarding the use of comprehensive CEIS for children with 
disabilities, commenters responding to the June 2014 RFI noted that 
providing comprehensive CEIS only to children without disabilities is 
unlikely to address racial and ethnic disparities in the placement or 
disciplinary removal of children with disabilities. Commenters 
specifically questioned how comprehensive CEIS could address 
significant disproportionality in an LEA as to placement if IDEA Part B 
funds reserved for comprehensive CEIS can only be used for children who 
are not currently identified as needing special education and related 
services.
    The Department agrees with the commenters and proposes to allow 
LEAs to use IDEA Part B funds reserved for comprehensive CEIS to serve 
children with disabilities in order to provide services that address 
factors contributing to significant disproportionality related to 
placement, including disciplinary removals from placement. However, 
recognizing the statutory emphasis on early behavioral and academic 
supports and services before children are identified with a disability, 
the Department proposes to prohibit LEAs from limiting services solely 
to children with disabilities.

[[Page 10987]]

    Regarding the use of comprehensive CEIS for preschool children, the 
Department notes that there is robust research supporting the 
conclusion that the early childhood years are a critical period in the 
development of children's language, social, and cognitive skills. 
(National Research Council and Institute of Medicine, 2000.) A child's 
early years set the foundation for later school success. Providing 
engaging and supportive learning opportunities as early as possible, 
particularly for children with and at risk for, delays and 
disabilities, can change developmental trajectories and set children on 
a path for achieving expected developmental and learning outcomes. 
Participation in preschool programs is also associated with 
significantly lower rates of special education services between the 
ages of 6 and 18. (Reynolds et al., 2001.) When young children enter 
kindergarten with skills behind their same age peers, they often have 
difficulty catching up and instead fall further behind.
    Disparities in early literacy skills put many children at risk for 
diminished later school success. By 18 months of age, gaps in language 
development have been documented when comparing children from low-
income families to their more affluent peers. (Fernald, Marchman, & 
Weisleder 2013; Hart and Risely, 1995.) Additionally, scores on reading 
and math were lowest for first-time kindergartners in households with 
incomes below the Federal poverty level and highest for those in 
households with incomes at or above 200 percent of the Federal poverty 
level. (Mulligan, Hastedt, & McCarroll, 2012.) Racial disparities have 
also been identified in the early literacy and math skills of children 
entering kindergarten with White children, on average, having higher 
reading and math scores than children of color with the exception of 
Asian children. (Mulligan, Hastedt, & McCarroll, 2012.)
    Research has underscored the critical role high-quality preschool 
programs can play to help address these disparities by providing a 
variety of rich early learning experiences and individualized supports 
needed to foster children's development and learning. However, Black/
African-American children and children from low-income families are the 
most likely to be in low-quality settings and the least likely to be in 
high-quality settings. (Center for American Progress, 2014.) In one 
large State, Hispanic/Latino children make up two-thirds of children 
entering kindergarten, but, of all racial and ethnic groups, are least 
represented in the State's preschool programs. (Valdivia, 2006.)
    Additionally, research suggests that there are racial disparities 
in the receipt of early intervention and early childhood special 
education services. For example, researchers found that racial 
disparities emerged by 24 months of age. African-American children are 
almost five times less likely to receive early intervention services 
under Part C of IDEA, and by 48 months of age, African-American 
children are disproportionately underrepresented in preschool special 
education services. (Feinberg et al., 2011; Rosenberg et al., 2008; 
Morgan et al., 2012.) Providing high-quality early intervention 
services can increase children's language, cognitive, behavioral, and 
physical skills and improve their long-term educational outcomes. 
(Morgan, Farkas, Hillemeir & Maczuga, 2012.)
    Finally, data indicate that specific groups of children are being 
disproportionately expelled and suspended from their early learning 
settings, a trend that has remained virtually unchanged over the past 
decade. Children most in need of the benefits of preschool programs are 
the ones most often expelled from the system. Recent data indicate that 
African-American boys make up 18 percent of preschool enrollment but 48 
percent of preschoolers suspended more than once. Hispanic/Latino and 
African-American boys combined represent 46 percent of all boys in 
preschool but 66 percent of their same-age peers who are suspended (see 
http://www2.ed.gov/policy/gen/guid/school-discipline/policy-statement-ece-expulsions-suspensions.pdf). While more research is needed to 
understand the impacts of disciplinary removal on preschool children, 
research shows the detrimental impacts on their older peers. Expulsion 
and suspension early in a child's education predicts expulsion or 
suspension in later grades. (Losen and Skiba, 2010.) Children who are 
expelled or suspended are as much as 10 times more likely to experience 
academic failure and grade retention. (Lamont et al., 2013.)
    Using IDEA Part B funds to provide comprehensive CEIS to preschool 
children with or without disabilities may help improve early 
intervening services available and over time reduce significant 
disproportionality. Specifically, IDEA Part B funds reserved for 
comprehensive CEIS could be used to implement program-wide models of 
interventions, such as positive behavioral interventions and supports 
and response to intervention, to increase the quality of the learning 
environment for all preschool children and provide explicit instruction 
and individualized interventions for those who need additional support.
    Comprehensive CEIS could also be used to increase the capacity of 
the workforce to support all children's cognitive, social-emotional, 
and behavioral health. For example, early childhood personnel could 
receive specific professional development on promoting children's 
social-emotional and behavioral health or ensuring that children with 
disabilities receive appropriate accommodations to support their full 
participation in inclusive classrooms.
    Additionally, comprehensive CEIS could be used to train preschool 
program staff to conduct developmental screenings and make appropriate 
referrals to ensure that children are linked to services and receive 
supports as early as possible, minimizing the negative impact of 
developmental delays and maximizing children's learning potential. 
Using IDEA Part B funds to provide comprehensive CEIS to preschool 
children with and without disabilities may help provide high-quality 
preschool services and promote targeted workforce professional 
development focused on promoting the social-emotional and behavioral 
health of all children.
    Requiring LEAs to use funds reserved for comprehensive CEIS to 
carry out activities to identify and address the factors contributing 
to the significant disproportionality may ensure that LEAs are using 
these funds to focus on activities designed to address the significant 
disproportionality. Directing LEAs to target the use these funds in 
this manner is consistent with the statutory purpose of the reservation 
of funds, which is to serve children in the LEA, particularly children 
in those groups that were significantly overidentified.
    In sum, we believe that allowing LEAs also to use IDEA Part B funds 
to provide comprehensive CEIS to preschool children ages three through 
five, with or without disabilities, to children with disabilities in 
kindergarten through grade 12, and requiring LEAs to identify and 
address factors contributing to the significant disproportionality, is 
consistent with the purposes of the statutory remedies, which are 
designed to assist LEAs in addressing significant disproportionality in 
identification, placement, and disciplinary removal.

Directed Questions

    The Department seeks additional comment on the questions below.
    (1) The Department notes that a number of commenters responding to 
the RFI expressed concern that the use

[[Page 10988]]

of a standard methodology to determine significant disproportionality 
may not be appropriate for certain types of LEAs.
    How should the proposed standard methodology apply to an LEA that 
may be affected by disparities in enrollment of children with 
disabilities (e.g., LEAs that house schools that only serve children 
with disabilities and school systems that provide specialized programs 
for children with autism or hearing impairments, etc.)?
    (2) The Department is particularly interested in comments regarding 
strategies to address the shortcomings of the risk ratio method, which 
the Department has proposed to require States to use to determine 
significant disproportionality. While this method is the most common 
method in use among the States, the Department is aware that other 
methods may have advantages and disadvantages. Risk ratios are 
influenced by the number of children in an LEA and in the racial or 
ethnic group of interest. In cases where the risk to a comparison group 
is zero, it is not possible to calculate a risk ratio. The Department 
has proposed a number of strategies to address the drawbacks of the 
risk ratio, including a minimum cell size and flexibility with regard 
to the number of years of data a State may take into account prior to 
making a determination of significant disproportionality. In addition, 
the Department has proposed that States use an alternate risk ratio in 
specific circumstances when the risk ratio cannot be calculated.
    Should the Department allow or require States to use another method 
in combination with the risk ratio method? If so, please state what 
limitation of the risk ratio method does the method address, and under 
what circumstances should the method be allowed or required.
    (3) The Department has proposed to require States to determine 
whether there is significant disproportionality with respect to the 
identification of children as children with intellectual disabilities, 
specific learning disabilities, emotional disturbance, speech or 
language impairments, other health impairments, and autism. Because the 
remaining impairments described in section 602(3) of IDEA typically 
have very small numbers of children, the Department does not deem 
disproportionality in the number of children with these impairments to 
be significant.
    Similar to impairments with small numbers of children, should the 
Department exclude any of the six impairments included in the proposed 
Sec.  300.647(b)(3)? If so, which impairments should be removed from 
consideration? Alternatively, should the Department include additional 
impairments in Sec.  300.647(b)(3)?
    (4) Consistent with OSEP Memorandum 08-09, the Department has 
proposed to require States to determine whether there is significant 
disproportionality with respect to self-contained classrooms (i.e., 
placement inside the regular classroom less than 40 percent of the day) 
and separate settings (i.e., separate schools and residential 
facilities), as these disparities suggest that a racial or ethnic group 
may have less access to the LRE to which they are entitled under 
section 612(a)(5) of IDEA.
    Should the Department also require States to determine whether 
there is significant disproportionality with respect to placement 
inside the regular classroom between 40 percent and 79 percent of the 
day, as proposed in this NPRM?
    (5) The Department has proposed to require States to develop risk 
ratio thresholds that comply with specific guidelines (i.e., States 
must select a reasonable threshold and consider the advice of 
stakeholders). We have proposed these guidelines in lieu of a mandate 
that all States use the same risk ratio thresholds. At this time, the 
Department does not intend to set mandated risk ratio thresholds and 
proposes that States should retain the flexibility to select risk ratio 
thresholds that best meet their needs. However, we seek the public's 
perspective on whether a federally-mandated threshold is appropriate 
and, if so, what that threshold should be. This information may inform 
potential future regulatory efforts to address racial and ethnic 
disparities under section 618(d) of IDEA. As noted above, the 
Department has no intention to set a federally-mandated threshold 
through this current regulatory action. Further, we seek the public's 
perspective as to what risk ratio thresholds the Department might 
consider as ``safe harbor'' when reviewing State risk ratio thresholds 
for reasonableness.
    Should the Department, at a future date, mandate that States use 
the same risk ratio thresholds? If so, what risk ratio thresholds 
should the Department mandate? What is the rationale or evidence that 
would justify the Department's selection of such risk ratio thresholds 
over other alternatives? Lastly, what safe harbor should the Department 
create for risk ratio thresholds that States could voluntarily adopt 
with the knowledge that it is reasonable pursuant to this proposed 
regulation? Public comments regarding this last question may be used to 
inform future guidance regarding the development of risk ratio 
thresholds and the Department's approach to reviewing risk ratio 
thresholds for reasonableness.
    (6) The Department has proposed to require States to make a 
determination of whether significant disproportionality exists in each 
LEA, for each racial and ethnic group with 10 children (for purposes of 
identification) and 10 children with disabilities (for purposes of 
placement and discipline).
    Does the Department's proposed minimum cell size of 10 align with 
existing State privacy laws, or would the proposal require States to 
change such laws?
    (7) The Department has proposed to require that States use the 
alternate risk ratio method only in situations where the total number 
of children in a comparison group is less than 10 or the risk to 
children in a comparison group is zero.
    Are there other situations, currently not accounted for in the 
proposed regulations, where it would be appropriate to use the 
alternate risk ratio method? In these situations, should the Department 
require or allow States the option to use the alternate risk ratio 
method?
    (8) The Department has proposed to require States to make a 
determination of whether significant disproportionality exists in the 
State and the LEAs of the State using a risk ratio or alternate risk 
ratio. The statutory requirement in section 618(d)(1) of IDEA applies 
to the Secretary of the Interior and States, as that term is defined in 
section 602(31) of IDEA (which includes each of the 50 States, the 
District of Columbia, the Commonwealth of Puerto Rico, and each of the 
outlying areas). However, the Department notes that, for some of these 
entities, performing a risk ratio or alternate risk ratio calculation 
in accordance with these proposed regulations may not be possible 
because of the lack of a comparison group of sufficient size (at least 
10 children for purposes of identification and at least 10 children 
with disabilities for purposes of placement or disciplinary removals). 
As such, the Department is interested in seeking comments on how to 
require entities, whose population is sufficiently homogenous to 
prevent the calculation of a risk ratio or alternate risk ratio, to 
identify significant disproportionality.
    (9) The proposed regulation permits States to set different risk 
ratio thresholds for different categories of analysis (e.g., for 
intellectual disabilities, a risk ratio threshold of 3.0 and for 
specific learning disabilities, a

[[Page 10989]]

risk ratio threshold of 2.0). The Department is interested in seeking 
comments on whether the proposed regulation should include additional 
restrictions on developing and applying risk ratio thresholds.
    Should the Department allow or require States to use another 
approach in developing and applying risk ratio thresholds? Are there 
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? 
Further, are there 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?
    (10) The Department has proposed to require States to identify 
significant disproportionality when an LEA has exceeded the risk ratio 
threshold or the alternate 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 from the immediate preceding year. While States would have 
flexibility to define ``reasonable progress''--by establishing uniform 
guidelines, making case by case determinations, or other approaches--
the Department's proposal would only allow States to withhold an 
identification of significant disproportionality in years when an LEA 
makes discernable progress in reducing their risk ratio. The Department 
is interested in seeking comments on whether to place additional 
restrictions on State flexibility to define ``reasonable progress''.
    (11) Research indicates that some LEAs may under-identify children 
of color. While the focus of these regulations is on 
overrepresentation, the Department specifically requests comments on 
how to support SEAs and LEAs in preventing under-identification, and 
ways the Department could ensure that LEAs identified with significant 
disproportionality with respect to identification properly implement 
their States' child find policies and procedures.
    What technical assistance or guidance might the Department put in 
place to ensure that LEAs identified with significant 
disproportionality do not inappropriately reduce the identification of 
children as children with disabilities or under-identify children of 
color in order to avoid a designation of significant 
disproportionality? How could States and LEAs use data to ensure that 
children with disabilities are properly identified?
    (12) The Department has proposed to require States to use 
comprehensive CEIS to identify and address the factors contributing to 
significant disproportionality. The Department is interested in seeking 
comments on whether additional restrictions on the use of funds for 
comprehensive CEIS are appropriate for children who are already 
receiving services under Part B of the IDEA.
    (13) The Department intends to monitor and assess these regulations 
once they are final to ensure they have the intended goal of improving 
outcomes for all children.
    What metrics should the Department establish to assess the impact 
of the regulations once they are final?
    Please explain your views and reasoning in your responses to all of 
these questions as clearly as possible, provide the basis for your 
comment, and provide any data or evidence, wherever possible, to 
support your views.

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 proposed 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 proposed regulations only upon a reasoned 
determination that their benefits would 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 proposed 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,

[[Page 10990]]

assumptions, limitations, and data sources.

Need for These Regulations

    As we set out in detail in our preamble, the overrepresentation of 
children of color in special education has been a national concern for 
more than 40 years. In its 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.
    Again, after review of its data, if a State finds any significant 
disproportionality based on race and ethnicity, it must provide for the 
review and, if appropriate, revision of the policies, practices, and 
procedures used for identifying or placing children; require the LEA to 
publicly report on any revisions; and require the LEA to reserve 15 
percent of its IDEA Part B subgrant to provide comprehensive CEIS to 
children in the LEA, particularly, but not exclusively, children in 
those groups that were significantly overidentified.
    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 the 
disparities in rates of identification, placement, and disciplinary 
removal across racial and ethnic groups would suggest, as noted by the 
GAO study and supported by the Department's own data analysis. 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 addition, there is a 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 comprehensive CEIS 
funds do not allow LEAs to direct resources to those children directly 
impacted by inappropriate identification nor does it allow LEAs to 
provide early intervening services to preschool children, which could 
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

    The Department reviewed and assessed various alternatives to the 
proposed regulations, drawing from internal sources and from comments 
submitted in response to the June 2014 RFI.
    Commenters responding to the RFI recommended that the Department 
address confusion about two IDEA provisions intended to address racial 
and ethnic disparities in identification for special education: (1) 
Section 618(d) of IDEA, under which States must 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 in 
identification, placement and disciplinary removals and (2) section 
612(a)(24) of IDEA, under which States must have in effect policies and 
procedures to prevent the inappropriate over-identification or 
disproportionate representation by race and ethnicity of children as 
children with disabilities. Commenters requested that the Department 
develop a single definition such that ``significant 
disproportionality'' and ``disproportionate representation'' would have 
the same meaning to reduce confusion and bring these two provisions of 
the law into greater alignment. The Department examined these statutory 
provisions, along with a third provision addressing racial and ethnic 
disparities, section 612(a)(22)(A) of IDEA, which requires States to 
examine data to determine if LEAs have significant discrepancies in the 
rate of long-term suspensions and expulsions of children with 
disabilities among LEAs in the State or compared to such rates for 
nondisabled children within such agencies. The Department determined 
that efforts to define these three concepts--significant 
disproportionality, disproportionate representation, and significant 
discrepancy--to remove their distinguishing characteristics and 
increase their alignment could contravene the relevant statutory 
provisions.
    Commenters also recommended that the Department create a model 
methodology for determining significant disproportionality against 
which State methodologies would be evaluated and approved or rejected. 
The Department determined that such a strategy would not clarify for 
States the minimum requirements for making determinations of 
significant disproportionality and would significantly delay the 
States' implementation of an approved methodology. In addition, the 
Department had concerns that such an approach would increase burden on 
many States in the event that initial submissions of a methodology were 
rejected, creating the need for additional State submissions.
    Internally, the Department considered an alternate definition of 
risk ratio threshold that would have limited States to using a range of 
numerical thresholds, not to exceed a maximum set by the Department. 
The Department posited that such limitations might assist States in 
identifying more LEAs with significant disproportionality where large 
disparities in identification, placement and disciplinary removal 
exist. The Department, however, acknowledges concerns raised in certain 
comments to the June 2014 RFI that mandated thresholds might fail to 
appropriately account for wide variations between States, including LEA 
sizes and populations. The Department is also aware that, in the case 
of the identification of children with disabilities, setting risk ratio 
thresholds too low might create an adverse incentive--encouraging LEAs 
to deny children from particular racial or ethnic groups access to 
special education and related services to prevent a determination of 
significant disproportionality. Given these competing concerns, the 
Department asks a directed question in this NPRM regarding the 
strengths and weaknesses of mandating specific risk ratio thresholds. 
The Department also considered allowing States to continue to use the 
weighted risk ratio method. The proposed regulations, however, limit 
the States to the risk ratio and, if appropriate, the alternate risk 
ratio methodologies, specify the conditions under which each must be 
utilized, and disallow the use of the weighted risk ratio. The 
Department's purpose in directing States to use the risk ratio and 
alternate risk ratio methods are (1) to improve transparency with 
respect to determinations of significant disproportionality across 
States through the use of a common analytical method and (2) to limit 
the burden of a transition to a new method for States as 41 States 
already use some form of the method. While a number of States currently 
use the weighted risk ratio method, that method fails to provide LEAs 
and the public with a transparent comparison between risk to a given 
racial or ethnic group and its peers, as

[[Page 10991]]

the risk ratio and alternate risk ratio methodologies do. Instead, with 
a weighted risk ratio approach, the comparison is adjusted by adding 
different weights to each racial and ethnic group, typically based on 
State-level representation and is intended to improve risk ratio 
reliability when size of certain racial and ethnic groups are small. 
Given that the Department's proposal already includes three mechanisms 
for addressing risk ratio reliability--(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 cell size requirement--the Department determined that the 
potential benefits of the weighted risk ratio method were exceeded by 
the costs associated with complexity and decreased transparency.
    The Department also considered maintaining the current regulations 
and continuing to allow States full flexibility to use their own 
methodology for significant disproportionality determinations. However, 
given that 22 States plus the Virgin Islands identified no LEAs with 
significant disproportionality in 2012-2013 and the evidence of some 
degree racial and ethnic disparity among LEAs in every State, the 
Department determined that the a standard methodology would help States 
to fulfill their statutory obligations under IDEA.

Discussion of Costs, Benefits and Transfers

    The Department has analyzed the costs of complying with the 
proposed requirements. Due to the considerable discretion the proposed 
regulations would provide States (e.g., flexibility to determine their 
own risk ratio thresholds, whether LEAs have made reasonable progress 
reducing significant disproportionality), we cannot evaluate the costs 
of implementing the proposed regulations with absolute precision. 
However, we estimate that the total cost of these regulations over ten 
years would be between $47.5 and $87.1 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 proposed requirements, taken as a whole, would 
include: Ensuring increased transparency on each State's definition of 
significant disproportionality; establishing an increased role for 
State Advisory Panels in determining States' risk ratio thresholds; 
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, and the incidence, duration, and type of disciplinary 
removals from placements, including suspensions and expulsions; and 
promoting and increasing comparability of data across States in 
relation to the identification, placement, or 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 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 at a later date.
Benefits
    The Department believes this proposed 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 draw attention to how States 
identify and support LEAs with potentially inappropriate policies, 
practices, and procedures as they relate to the identification, 
placement, and discipline of children with disabilities. 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 appropriate 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 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 discrepancies 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 the IDEA and 
that States are prepared and able 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 
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 such 
disciplinary actions. (Council of Statement Governments, 2011.)
    The Department believes that suspensions and expulsions can often 
be avoided, particularly if LEAs utilize 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 proposed regulation clarifies 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 reform 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.

[[Page 10992]]

    Under section 613(f) of IDEA and 34 CFR 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 be used to also support children with 
disabilities and children ages three through five, the proposed 
regulation 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 
be identified later as having a disability, which could reduce the need 
for more extensive special education and related services at a later 
date.
    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 proposed 
rules.
    The following section provides a detailed analysis of the estimated 
costs of implementing the proposed requirements contained in the new 
regulation.

Number of LEAs Newly Identified

    In order to accurately estimate the fiscal and budgetary impacts of 
this proposed regulation, the Department must estimate not only the 
costs associated with State compliance with these proposed 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 would 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, our estimates are highly sensitive to our 
assumptions regarding this number. In 2012-2013, the most recent year 
for which data are available, States identified 449 out of 
approximately 17,000 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.
    The proposed 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 proposed regulations may not result in any 
additional LEAs being identified as having significant 
disproportionality. However, we believe that this scenario is unlikely 
and therefore would represent an extreme lower bound estimate of the 
cost of this proposed regulation.
    We believe it is much more likely that the necessary methodological 
changes required by this proposed 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 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 States will set in consultation with their State 
Advisory Panels and therefore do not know the number of LEAs that would 
be identified by such new thresholds. However, for purposes of these 
cost estimates, we assume that such changes would result in 400 
additional LEAs being identified each year nationwide. This number 
represents an approximately ninety percent increase in the number of 
LEAs identified by States each year. The Department assumes that 
changes in State policy are potential and likely outcomes of these 
proposed regulations; therefore, the number of new LEAs that may 
potentially be identified should be reflected in our cost estimates.
    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 will be 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.
Cost of State-Level Activities
    The proposed regulations would 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. The 
proposed regulations require States to set a risk ratio threshold, 
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, and; (2) consider, in making determinations of 
significant disproportionality, whether LEAs have made reasonable 
progress at reducing disproportionality. Finally, this regulation would 
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 proposed 
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 a risk 
ratio threshold, 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 proposed regulations, States would have to take 
time to review the proposed regulations, determine how these proposed 
regulations would 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

[[Page 10993]]

($61.66), at 16 hours each for a total one-time cost for the 50 States, 
the District of Columbia, Puerto Rico, the Bureau of Indian Education 
(BIE), Guam, American Samoa, and the Virgin Islands of $238,610.\4\
---------------------------------------------------------------------------

    \4\ Unless 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 http://www.bls.gov/oes/current/999201.htm) multiplied by an employer cost for employee compensation 
of 1.57 (see http://www.bls.gov/news.release/ecec.toc.htm).
---------------------------------------------------------------------------

    Since no State currently calculates significant disproportionality 
using the exact methodology being proposed in this regulation, each 
State would need to modify its data collection tools. To estimate the 
cost per State, we assume that State employees would likely include a 
Database Manager ($52.32) and a Management Analyst ($44.64) at 16 hours 
each for a total one-time cost for the 50 States, the District of 
Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin 
Islands of $86,880. 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 would 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, we assume that State employees would 
likely include a Special Education Director ($63.04) for 3 hours, 5 
Management Analysts ($44.64) for 16 hours, 2 Administrative Assistants 
($25.69) for 8 hours, a Computer Support Specialist ($35.71) for 2 
hours, and 2 lawyers ($61.66) for 16 hours, for a total one-time cost 
for the 50 States, the District of Columbia, Puerto Rico, BIE, Guam, 
American Samoa, and the Virgin Islands of $348,090.
    Additionally, proposed changes under Sec.  300.646(d) would 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 would have to 
review their existing processes to ensure that LEAs are provided with 
appropriate support to identify such contributing factors and use funds 
for comprehensive CEIS in ways that are appropriately targeted to 
address such contributing 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, BIE, 
Guam, American Samoa, and the Virgin Islands of $120,070.
    Under the new regulations, States must also determine a risk ratio 
threshold based on the advice of stakeholders, including State Advisory 
Panels, as provided under section 612(a)(21)(D)(iii) of IDEA. In order 
to estimate the cost of implementing these requirements, we assume that 
the average State would likely initially meet this requirement in Year 
1 and revisit the thresholds 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 eight 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 \5\ for 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).\7\ 
For 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 2 hours, 
one State employee in a managerial position ($51.50) for 16 hours, one 
Management Analyst ($44.64) for 16 hours, and one Administrative 
Assistant ($25.69) for 16 hours. Based on these participants, we 
estimate that consultation with the State Advisory Panels would have a 
cumulative one-year cost of $294,760 for the 50 States, the District of 
Columbia, Puerto Rico, BIE, Guam, American Samoa, and the Virgin 
Islands.
---------------------------------------------------------------------------

    \5\ Wages in this section do not reflect loaded wage rates.
    \6\ Hourly 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.
    \7\ Hourly 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.
---------------------------------------------------------------------------

Annual Calculation of Risk Ratios and Notification of LEAs

    In addition to the initial costs outlined above, States would incur 
annual costs associated with calculating risk ratios, making 
determinations of significant disproportionality, and notifying LEAs of 
determinations.
    Proposed Sec.  300.647 would require every State to annually 
calculate significant disproportionality for each LEA using a risk 
ratio or alterative risk ratio method in every category of analysis (as 
defined in this notice of proposed rulemaking) that meets the minimum 
cell size (with the minimum cell size being a number, 10 or lower, 
determined by the State). States would then be required to identify 
LEAs above the risk ratio threshold with significant 
disproportionality. When making a determination of significant

[[Page 10994]]

disproportionality, States would be allowed to use three years of data, 
and take into account whether LEAs demonstrate reasonable progress at 
reducing significant disproportionality. To estimate the annual cost 
per State, we assume that State employees involved in this calculation 
would likely include 3 Management Analysts ($44.64) for 24 hours and 
one Administrative Assistant ($25.69) for 6 hours for an annual cost of 
$188,620 for the 50 States, the District of Columbia, Puerto Rico, BIE, 
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. If we assume 400 
new LEAs are identified with significant disproportionality, the annual 
cost would be $7,720.

Review and Revision of Policies, Practices, and Procedures

    States are required to provide for the review and, if appropriate, 
the 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 2 Management Analysts ($44.64) for 6 
hours for each LEA. If we assume 400 new LEAs are identified with 
significant disproportionality each year, the annual cost would be 
$150,620 for the 50 States, the District of Columbia, Puerto Rico, BIE, 
Guam, American Samoa, and the Virgin Islands.
    Many States require LEAs identified with significant 
disproportionality to 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 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.
---------------------------------------------------------------------------

    \8\ Hourly 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 days and hours per day assuming 200 workdays 
and 8 hours per day.
    \9\ Hourly 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 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.
---------------------------------------------------------------------------

    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 allocation for 
comprehensive CEIS. Any LEAs fitting into this category would 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 such 
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 2-
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 $901,020.
    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 allocations 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 .25 hours for each LEA. If we assume 400 new 
LEAs are identified with significant

[[Page 10995]]

disproportionality, the annual cost would be $4,460.

Federal Review of State Risk Ratio Thresholds

    Under proposed Sec.  300.647(b)(1)(ii), the risk ratio thresholds 
established by States would be 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 and then monitor the thresholds again in any year in which a 
State changes its risk ratio thresholds. To estimate the annual cost of 
reviewing risk ratio thresholds, we assume that Department staff 
involved in such reviews would likely include one management analyst at 
the GS-13 level ($73.95 \10\), and take 1 hour each for the 50 States, 
the District of Columbia, Puerto Rico, BIE, 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 $771.50.
---------------------------------------------------------------------------

    \10\ This loaded hourly wage rate is based on the hourly 
earnings of a GS-13 step 3 federal employee in Washington, DC. (See: 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/16Tables/html/DCB_h.aspx).
---------------------------------------------------------------------------

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 2011-12, the Department estimates that 15 
percent of the average LEA section 611 and section 619 subgrant 
allocation 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 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 
NPRM, the proposed 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 proposed 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 proposed changes, for 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 proposed regulation because we consider it highly unlikely that 
there would be no additional LEAs identified. As noted above, the 
Department's choice 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 thresholds 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 proposed rules. In order to estimate an upper 
bound, the Department assumes that States could set much more 
aggressive thresholds 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 proposed 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 proposed 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 3 percent discount rate.

          Table 8--Sensitivity of Cost Estimates to Number of Additional LEAs Assumed To Be Identified
----------------------------------------------------------------------------------------------------------------
                                                                                       Costs
                            Category                             -----------------------------------------------
                                                                      0 LEAs         400 LEAs       1,200 LEAs
----------------------------------------------------------------------------------------------------------------
State-level review and compliance with the new rule (modifying        $1,508,620      $1,508,620      $1,508,620
 data collection tools, meeting with State Advisory Panels,
 drafting and issuing guidance to LEAs).........................
Annual calculation of risk ratios and notification of LEAs......       2,454,359       2,554,807       2,755,702
Review and, if necessary, revision of policies, practices, and                 0      56,205,180     168,615,538
 procedures.....................................................
Planning for and tracking the use of funds for comprehensive                   0      26,782,849      80,348,546
 CEIS...........................................................
----------------------------------------------------------------------------------------------------------------
Category                                                                             Transfers
----------------------------------------------------------------------------------------------------------------
Reservation of funds for comprehensive CEIS.....................               0     552,867,164   1,658,601,491
----------------------------------------------------------------------------------------------------------------

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?

[[Page 10996]]

     Does the format of the proposed regulations (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  300.646 Disproportionality.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand see the instructions in 
the ADDRESSES section.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    The U.S. Small Business Administration (SBA) Size Standards define 
``small entities'' as for-profit or nonprofit institutions with total 
annual revenue below $7,000,000 or, if they are institutions controlled 
by small governmental jurisdictions (that are comprised of cities, 
counties, towns, townships, villages, school districts, or special 
districts), with a population of less than 50,000. These proposed 
regulations would affect all LEAs, including the estimated 17,371 LEAs 
that meet the definition of small entities. However, we have determined 
that the proposed regulations would not have a significant economic 
impact on these small entities.
    Pursuant to this proposed regulatory action, if States chose to 
increase their level of accountability with respect to 
disproportionality on the basis of race and ethnicity, there would be 
increasing costs for LEAs that have been identified with significant 
disproportionality as defined by the State. Nonetheless, based on the 
limited information available, the Secretary does not believe that the 
effect of these changes would be significant. The number of new LEAs 
identified with significant disproportionality will depend upon the 
extent to which States exercise their flexibility to determine 
reasonable progress made by LEAs at reducing significant 
disproportionality, the number of years of data used to make 
determinations of significant disproportionality, and the risk ratio 
thresholds set by the State. There are no increased costs associated 
with this regulatory action for LEAs that are not identified with 
significant disproportionality.

Paperwork Reduction Act of 1995

    This NPRM contains information collection requirements that are 
subject to be reviewed by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). These 
proposed regulations contain information collection requirements that 
are approved by OMB under OMB control number 1820-0689; these proposed 
regulations do not affect the currently approved data collection.

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 accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would 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 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 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.

(Catalog of Federal Domestic Assistance Number 84.027, Assistance to 
States for Education of Children with Disabilities)

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.

    Dated: February 19, 2016.
John B. King, Jr.,
Acting Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education proposes to amend title 34 of the Code of Federal Regulations 
as follows:

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise 
noted.
0
2. Section 300.646 is revised to read as follows:


Sec.  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 Sec.  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

[[Page 10997]]

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. 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; and
    (ii) Must identify and address the factors contributing to the 
significant disproportionality, which may include 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.
    (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.


    (Authority:  20 U.S.C. 1413(f); 20 U.S.C. 1418(d)).

0
3. Section 300.647 is added to read as follows:


Sec.  300.647  Determining significant disproportionality.

    (a) Definitions--(1) Alternate risk ratio is a calculation 
performed by dividing the risk for children in one racial or ethnic 
group within an LEA by the risk for children in all other racial or 
ethnic groups in the State.
    (2) Risk is the likelihood of a particular outcome (identification, 
placement, or disciplinary removal) for a specified racial or ethnic 
group, calculated by dividing the number of children from a specified 
racial or ethnic group experiencing that outcome by the total number of 
children from that racial or ethnic group enrolled in the LEA.
    (3) 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.
    (4) Risk ratio threshold is a threshold, determined by the State, 
over which disproportionality based on race or ethnicity is significant 
under Sec.  300.646(a) and (b).
    (b) Significant disproportionality determinations. In determining 
whether significant disproportionality exists in a State or LEA under 
Sec.  300.646(a) and (b), the State must--
    (1) Set a reasonable risk ratio threshold for each of the 
categories described in paragraphs (b)(3) and (4) of this section that 
is:
    (i) Developed based on advice from stakeholders, including State 
Advisory Panels, as provided under section 612(a)(21)(D)(iii) of the 
Act; and
    (ii) Subject to monitoring and enforcement for reasonableness by 
the Secretary consistent with section 616 of the Act;
    (2) Apply the risk ratio threshold 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) Calculate the risk ratio for each LEA, for each racial and 
ethnic group in paragraph (b)(2) of this section that includes a 
minimum number of children not to exceed 10, 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) Calculate the risk ratio for each LEA, for each racial and 
ethnic group in paragraph (b)(2) of this section that includes a 
minimum number of children with disabilities not to exceed 10, 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 more than 40 percent of the day and less than 79 percent 
of the day;
    (ii) For children with disabilities ages 6 through 21, inside a 
regular class less than 40 percent of the day;
    (iii) 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;
    (iv) For children with disabilities ages 3 through 21, out-of-
school suspensions and expulsions of 10 days or fewer;
    (v) For children with disabilities ages 3 through 21, out-of-school 
suspensions and expulsions of more than 10 days;
    (vi) For children with disabilities ages 3 through 21, in-school 
suspensions of 10 days or fewer;
    (vii) For children with disabilities ages 3 through 21, in-school 
suspensions of more than 10 days; and
    (viii) 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) Calculate an alternate risk ratio with respect to the 
categories described in paragraphs (b)(3) and (4) of this section if--
    (i) The total number of children in all other racial and ethnic 
groups within the LEA is fewer than 10; or

[[Page 10998]]

    (ii) The risk for children in all other racial and ethnic groups 
within the LEA is zero; and
    (6) Except as provided in paragraph (c) of this section, identify 
as having significant disproportionality based on race or ethnicity 
under Sec.  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.
    (c) Flexibility. A State is not required to identify an LEA as 
having significant disproportionality based on race or ethnicity under 
Sec.  300.646(a) and (b) until--
    (1) The LEA has exceeded the 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 three prior consecutive years 
preceding the identification; and
    (2) The LEA has exceeded the risk ratio threshold or the alternate 
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 from the immediate preceding 
year.

    Authority: 20 U.S.C. 1418(d).

[FR Doc. 2016-03938 Filed 3-1-16; 8:45 am]
BILLING CODE 4000-01-P