Wednesday, November 01, 2006

Council Education Committee, Small High Schools

The small high schools issue that I mentioned at our last meeting is the topic of an excellent report from Parents for Inclusive Education and New York Lawyers for the Public Interest, titled, Small Schools, Few Choices: How New York City's High School Reform Effort Left Students With Disabilities Behind [pdf]

My long delayed letter on the September 19th Hearing on Intro 344, drafted by the office of the Public Advocate follows. I encourage you to use it in letters to your own Councimembers (particularly those on the Education Committee), so that some more useful information is included in this regulation if it does move forward. Education Committee members are: Chairperson Jackson, Arroyo, Clarke, de Blasio, Felder, Fidler, Foster, Garodnick, Katz, Koppell, Lanza, Lappin, Liu, Martinez, Recchia, Jr., Vacca,Vallone, Jr., Vann, Yassky

November 4, 2006

Robert Jackson, Chairman
New York City Council Education Committee
250 Broadway, Rm. 1747
New York, New York 10007

Re: September 19th Hearing on Special Education Reporting Bill

Committee Members:

I am the parent of two children on the autism spectrum who have received intensive special education services through the Departments of Education or Health and Mental Hygiene since they were toddlers. Though my boys are only eight and ten years old, I consider myself a veteran special education parent, and I am active in meeting with and advising other parents on available school placements, the CSE process, and finding appropriate related services. I attended part of your September 19th hearing and wanted to share my reactions.

Overall, the reporting bill has my support, and I think the Committee is right to seek to institute regular reporting on a variety of activities of the Department in order to carry out its oversight function. The new reporting to the State Education Department that was referred to in testimony places more emphasis on student performance, as do many of the Federal reports referred to in testimony. A focus on the department’s activities is the proper place for the local legislature to be placing their scrutiny, and is the key to applying performance management to the Department.

The Public Advocate’s proposed regulation has two main weaknesses from my perspective: it is lacking in scope, through near exclusive focus on the evaluation calendar and frequency of modifications to programs upon re-evaluations. The bulk of my comments are specific and directional additions to this type of reporting.

In addition, the language of the proposed regulation is not up to date in terms of conforming with changes in federal IDEA, which was reauthorized in 2004. This latter issue was a gift to the agency witnesses testifying to the lack of necessity and or pre-emption of the regulation, and the need that the data points to be measured conform to state and federal regulations tended to undermine the case for the chosen vehicle of regulation, a charter amendment.

Overall, I strongly encourage the committee to seek the advice of Advocates for Children in better specifying this regulation, as that organization possesses a uniquely sophisticated understanding of what the agency and its systems are and are not capable of reporting from both a technological and legal standpoint. Given the history of what Advocates for Children has been able to secure through the discovery process in litigation, it appears that this agency is not above using the complexity and incompatibility of some of its data systems as a cover to avoid sharing unflattering information.

I commend the several members of the committee who took issue with Michael Best’s pre-emption position. However, another troubling statement from Mr. Best got little response from the committee: his acknowledgement that the new “small high schools” do not accept special education students in their first two years of operation. This is a blatant civil rights violation for students with IEPs, and it is well documented in the new report from NYPLI and Parents for Inclusive Education titled Small Schools, Few Choices: How New York City's High School Reform Effort Left Students With Disabilities Behind. In addition, it fuels the widespread perception that small schools will and do have a “creaming” effect, making the unreformed schools even more challenged. Particularly to the extent that any new program’s identity and culture are formed at the beginning, it is really galling to me that the new, reformed version of high school starts out excluding the disabled. Will self-contained classroom students be welcomed with open arms in year three and afforded the opportunity to benefit from the small school's unique features? I for one am doubtful.

Finally, Councilmember Lappin’s constituent, while an excellent witness, was not a very strategic one, and his tale placed the focus on issues that are either unusual or rather easy to fix. Veteran non-public school parents know that a new school, a student transfer, and inter-borough transportation are each sufficient to create transportation chaos: he described all three in interaction. My sons, who have similarly intensive needs to his, have experienced occasional blips but have overall had exemplary service from the Office of Pupil Transportation and its contractors. But more importantly, the issues that underlie his challenges in finding an effective program for his son are complicated and involve decisions made at the Department of Education and at the state and federal levels. And he is one of the lucky few who exercised the option of enrolling their child in a non-approved school, then entering into settlement talks or a hearing.

A witness more indicative of the problem would be a parent whose child has been recommended for non-public schooling by a Committee on Special Education, and granted a coveted P-1 letter that provides authorization for non-public school placement, but who cannot find a seat in such a school because there are not nearly enough. How many such students are there? I do not know because the department does not report it, but I do know there are many because I talk to quite a few, and I imagine Council members do too.

There are three specific areas of data that I believe would be helpful in the reporting regulation:

Related Service Authorizations

As a parent/consumer of Related Service Authorization services, it is my impression, confirmed by providers and other parents, that Speech, Occupational, and Physical Therapy providers are scarce compared to demand, as they are throughout the system.

At present I have RSA’s for my two sons for Speech and Occupational Therapy. We are presently scheduled for no OT because I have not found a clinic or provider with availability. The Department does do a fair job of giving parents tools to find providers, with copies of their contractor lists available at the CSE office and on the web. Right now though, some of my boys’ RSAs are useless vouchers for services I can’t source.

I hear from providers that the CSE’s also pay less and more slowly than the Committees on Preschool Special Education or Early Intervention, giving providers who contract for more than one of these an incentive to curtail their school-age caseload. My boys are also older and bigger, and providers may be less willing to serve us because they are simply more challenging.

Most troublingly, RSAs are the remedy offered to pupils who need services but are not getting them in school because there are more mandates than the available staff hours to provide them. The RSA is then a kind of release valve for lack of services in the school. This remedy is usually offered only when a child has not been provided services for a considerable time -- at least a month, far enough into the semester that it is particularly unlikely they will find an RSA provider who still has available slots.

The data that would help determine how widespread this problem is would perhaps be the number and quantity of RSA’s issued and the number and quantity of services delivered in the prior school year.

Non-Public School Recommendations and Placements

Non-Public School placements are generally said to be about 1.5% of the special education population, or somewhere around 2,000 pupils in NYC. Students in these programs are those who Committees on Special Education or Impartial Hearing Officers agreed require more specialized and intensive placements. With regard to NPS placements, the committee should know:

1) How many pupils are issued NPS approval through a “Nickerson” letter resulting from the district failing to meet deadlines or conform to due process requirements.

2) How many receive NPS recommendations from the CSE (in which the professionals agree with parents that the pupil cannot be properly served in a district program)

3) How many receive NPS as the result of an impartial hearing, but not for a “Nickerson” reason.

These three groups should be the total number of NPS pupils, and it would be useful to know the age or grade of the pupils – which are at the “turning 5” transition and which are following a year or more in a district special education program, CTT, or other placement.

Of these pupils, it would be useful to know what types of placements they have:

1) State approved non-public program (SED regulates these programs and approves changes in their enrollments)

2) “Interim emergency” list program (SED designates these programs)

3) “Carter” or non-approved private program

4) Continues to attend a “non-appropriate” district or other program in the absence of an appropriate one

5) Without placement and served at home

I believe that students without placement should be the primary concern of council members, but understanding how this array of placements affects the prospects of the most challenged of our disabled students is not possible without information about at least the number served in various settings.

In addition, the education committee would properly inquire about the number and cost of “non-approved” school placements, starting with the number of such pupils thought by the Dept. of Education to be attending, and the number and amount of settlements, as well as the percentage of tuition settled for.

I’ve been told that Carter placements shift the share of support to the city (over and above the costs of the settlement and hearing process) while state-approved NPS placements shift the share of expense to the state because the NPS pupils are deemed “excess cost” pupils in the reimbursement formula while Carter placements are not. City lobbying for NPS program creation or expansion might therefore be strategic. And Carter placements are not to be uniformly opposed either, as they are one of the few means of creating seats to addresses previously unmet needs. It is not a very equitable vehicle, but it does ultimately build capacity in a system not characterized by responsiveness to complex needs.

Augmentative Communication & Assistive Technology

Each of my non-verbal children has been evaluated and recommended to receive an augmentative communication device. These evaluations were requested in winter of 2005 and performed in April 2006. But the devices were not ordered until September 2006 and they have yet to be delivered. Why the delay? I have come to understand that orders for assistive tech are held until the new budget year. This seems like the type of problem that is solely about lack of fiscal forecasting and budget planning. Shedding a little sunlight on this area of special education operations might bring needed services to many children in a more timely way.

These three areas of operations represent specific opportunities to use data to better understand what is and is not working in special education, and are ripe for improving transparency, equity, or performance. All of this data should also be broken down by age, relevant geographic and available socio-economic categories.

Thank you for your attention and commitment to improving the quality of special education programs in New York City.

Lynn Decker

cc: Public Advocate Betsy Gotbaum
Councilmember Gerson

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