EDU-40-11-00006-A Skills and Achievement Commencement Credential for Students with Disabilities

2/1/12 N.Y. St. Reg. EDU-40-11-00006-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 5

February 01, 2012

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

NOTICE OF ADOPTION

 

I.D No. EDU-40-11-00006-A

Filing No. 37

Filing Date. Jan. 17, 2012

Effective Date. Feb. 01, 2012

Skills and Achievement Commencement Credential for Students with Disabilities

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 100.5, 100.6, 100.9 and 200.5 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 305(1) and (2), 4402(1-7) and 4403(3)

Subject:

Skills and Achievement Commencement Credential for Students with Disabilities.

Purpose:

To replace Individualized Education Program (IEP) diploma with a Skills and Achievement Commencement Credential.

Text of final rule:

1. Subparagraph (iii) of paragraph (7) of subdivision (b) of section 100.5 of the Regulations of the Commissioner of Education is amended, effective February 1, 2012, as follows:

(iii) Earning a Regents or local high school diploma shall be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall terminate a student's entitlement to a free public education pursuant to such statute. Earning a high school equivalency diploma [or], an Individualized Education Program diploma or a skills and achievement commencement credential as set forth in section 100.6 of this Part shall not be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1) and shall not terminate a student's entitlement to a free public education pursuant to such statute.

2. Section 100.6 of the Regulations of the Commissioner of Education is repealed, effective February 1, 2012.

3. A new section 100.6 of the Regulations of the Commissioner of Education is added, effective February 1, 2012, as follows:

§ 100.6. Skills and achievement commencement credential.

Beginning with the 2013-14 school year and thereafter, the board of education or trustees of a school district shall, and the principal of a nonpublic school may, issue a skills and achievement commencement credential to a student who has taken the State assessment for students with severe disabilities, as defined in section 100.1(t)(2)(iv) of this Part, in accordance with the following provisions:

(a) Prior to awarding the skills and achievement commencement credential, the governing body of the school district or nonpublic school shall ensure that:

(1) the student has been recommended by the committee on special education to take the alternate assessment in lieu of a required State assessment;

(2) such student meets the definition of a student with a severe disability as defined in section 100.1(t)(2)(iv); and

(3) the student has been afforded appropriate opportunities to participate in community experiences and development of employment and other instructional activities to prepare the student for post-secondary living, learning and employment.

(b) The credential may be issued at any time after such student has attended school for at least 12 years, excluding kindergarten, or has received a substantially equivalent education elsewhere, or at the end of the school year in which a student attains the age of 21.

(c) The credential shall be similar in form to the diploma issued by the school district or nonpublic school, except that there shall appear on such credential a clear annotation to indicate that the credential is based on achievement of alternate academic achievement standards.

(d) The credential shall be issued together with a summary of the student's academic achievement and functional performance, as required pursuant to section 200.4(c)(4) of this Title, that includes documentation of:

(1) the student's level of achievement and independence for each of the career development and occupational studies learning standards set forth in section 100.1(t)(1)(vii)(a), (b) and (c) of this Part including, but not limited to: career development; integrated learning; universal foundation skills that include basic skills in reading, writing, listening, speaking, math and functional math; thinking skills; personal qualities; interpersonal skills; use of technology; managing information and resources; systems skills;

(2) the student's academic skills, as measured by the State assessment for students with severe disabilities; and

(3) the student's strengths and interests and, as appropriate, other student achievements and accomplishments.

School districts may use the State model form developed by the commissioner for the summary of academic and functional performance or a locally-developed form that meets the requirements of this subdivision.

(e) If the student receiving a credential is less than 21 years of age, such credential shall be accompanied by a written statement of assurance that the student named as its recipient shall continue to be eligible to attend the public schools of the school district in which the student resides without the payment of tuition until the student has earned a regular high school diploma or until the end of the school year in which such student turns age 21, whichever shall occur first.

4. A new subdivision (g) is added to section 100.9 of the Regulations of the Commissioner of Education, effective February 1, 2012, as follows:

(g) The provisions of this subdivision shall be deemed repealed on June 30, 2013 and no IEP diploma shall be awarded pursuant to this section on or after July 1, 2013.

5. Subparagraph (iii) of paragraph (5) of subdivision (a) of section 200.5 of the Regulations of the Commissioner of Education is amended, effective February 1, 2012, as follows:

(iii) Prior to the student's graduation with an individualized education program (IEP) diploma or, beginning with the 2013-14 school year, prior to a student's exit with a skills and achievement commencement credential as set forth in section 100.6 of this Title, such prior written notice must indicate that the student continues to be eligible for a free appropriate public education until the end of the school year in which the student turns age 21 or until the receipt of a regular high school diploma.

Final rule as compared with last published rule:

Nonsubstantive changes were made in section 100.5(d)(1).

Text of rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis and Rural Area Flexibility Analysis

Since publication of a Notice of Proposed Rule Making in the State Register on October 5, 2011, nonsubstantial changes were made to the proposed rule as follows: in section 100.5(d)(1), grammatical corrections were made to replace a period with a colon and to replace several commas with semicolons.

These changes do not require any changes to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis and Rural Area Flexibility Analysis.

Revised Job Impact Statement

Since publication of a Notice of Proposed Rule Making in the State Register on October 5, 2011, nonsubstantial changes were made to the proposed rule as described in the Statement Concerning the Regulatory Impact Statement filed herewith.

The proposed rule, as revised, would repeal the individualized education program (IEP) diploma for students with disabilities upon expiration of the 2012-13 school year and, beginning with the 2013-14 school year, replace it with an alternate credential (i.e., Skills and Achievement Commencement Credential) only for students with disabilities with the most significant cognitive disabilities who have taken the New York State Alternate Assessment (NYSAA) and who are not eligible for a regular diploma.

The proposed rule, as revised, will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the State Register on October 5, 2011, the State Education Department (SED) received the following comments on the proposed amendment.

§ 100.6 - Skills and Achievement Commencement Credential

COMMENT

Proposed rule presents a meaningful credential for students participating in the New York State Alternate Assessment (NYSAA); allows demonstration of career readiness skills and skills and knowledge for living, learning and employment; recognizes more than student attendance; establishes option for students unable to earn a regular diploma relating to trades/careers. Unlike individualized education program (IEP) diploma, it is aligned with learning standards and alternate performance indicators.

DEPARTMENT RESPONSE

Comments are supportive in nature.

COMMENT

Regulations should be effective prior to 2013-14 school year. Districts need time to build capacity to provide students access to educational programs and experiences. Provide appropriate time, staff development, and resources. Provide information and outreach to businesses and higher education communities.

DEPARTMENT RESPONSE

Proposed 2013-14 timeline is necessary to provide SED with time to develop and deliver guidance to parents, employers and districts; and to provide districts time to adjust instructional programs and make changes to policies/procedures to implement the credential. No new mandates are imposed on districts and delayed implementation date provides districts with sufficient lead time.

COMMENTS

Support removing "diploma" given confusion term causes. "Skills credential" is less deceiving as "diploma" indicates academic achievement. Adopt credential, but include language validating and endorsing it with privileges associated with regular diplomas and recognition of students as graduates. Credential is not a regular diploma and will not provide students with same post-secondary and employment opportunities; districts will be penalized in graduation and drop out rate measures. Students may be less motivated to work for credential and to graduate; credential takes away individualization of students' education; concerned about credential's potential value to employers; does not serve same breadth of students as IEP and local diplomas; need more information on credential documentation. Term "credential" diminishes students' accomplishments and employers may not give this same credence as diploma. As majority of jobs require diploma, rename to have diploma in title and provide format similar to typical diploma. Replace "IEP diploma" with "credential diploma" or other label emphasizing "CDOS Standards."

DEPARTMENT RESPONSE

Term "credential" distinguishes it from a regular diploma and avoids confusion associated with term "diploma." Because the credential is based on achievement of alternate achievement standards, it cannot be recognized as a regular diploma and students cannot be counted as graduates for federal accountability purposes. The credential is designed to promote individualized planning and document a student's level of achievement in areas essential for post-secondary life. Specific credential documentation requirements are established in the proposed rule. SED will issue guidance for implementation, including a sample credential form and exit summary.

COMMENT

Credential name implies merit and achievement. Revise name to state true function as assessment of skills.

DEPARTMENT RESPONSE

Credential name was selected in consideration of the nature of skills to be documented and recognized.

COMMENT

Credential documentation should be required beginning at age 14, replace current "Level 1" career assessment and inform transition planning.

DEPARTMENT RESPONSE

The required documentation to accompany the proposed credential will promote curriculum to support student attainment of the CDOS standards and skills, and better inform transition planning and services. The recommendation to replace the Level 1 assessment with the credential documentation will be considered for future rulemaking.

COMMENT

Define "severe cognitive disability"; clarify if this includes students with intelligent quotients (IQs) in the 60s.

DEPARTMENT RESPONSE

"Students with severe disabilities" is defined in § 100.1(t)(2)(iv) to mean students who have limited cognitive abilities combined with behavioral and/or physical limitations and who require highly specialized education, social, psychological and medical services in order to maximize their full potential for useful and meaningful participation in society and for self-fulfillment. Schools must determine on an individual basis whether a student meets this definition and the criteria for participation in NYSAA.

COMMENT

Proposal does not address students whose participation in authentic community opportunities to develop employment skills is limited by their disabilities. May not have intended impact on employability of most severely disabled students who typically require post-secondary placements/supports and do not work competitively.

DEPARTMENT RESPONSE

The credential is designed to recognize a range of student achievement for the CDOS standards, including skills achieved through community-based learning and/or in-school experiences and provide all NYSAA students meaningful documentation of skills and achievement.

COMMENT

Credential creates unfunded mandate.

DEPARTMENT RESPONSE

The credential replaces the current IEP diploma and does not add additional responsibilities to school districts beyond those required by federal and State law.

COMMENT

Credential may result in over reliance on NYSAA; safeguards should be added to ensure students are appropriately recommended for NYSAA.

DEPARTMENT RESPONSE

Current regulations define students with severe cognitive disabilities eligible for NYSAA that CSEs must comply with.

COMMENT

Attaching exit summary to credential will segregate students from other graduates; this information is already provided to adult service providers.

DEPARTMENT RESPONSE:

Federal law requires an exit summary be provided to each student with a disability. It is at each student's discretion as to whether he/she provides this information to employers, adult agencies, or others.

COMMENT

Require ongoing parent education and written and verbal information on credential and its limitations and other diploma options be provided to parents prior to meetings where these will be discussed.

DEPARTMENT RESPONSE

SED will advise districts of necessary actions to ensure parents and students are provided information to understand the differences between a regular diploma and the credential.

COMMENT

Require standard review process for updating document with new skills or if students return to school; clarify how credential is produced and who should be involved in its development; describe process for resolving disputes about credential content and/or development process. Provide guidance and resources for districts to create implementation plans tailored to needs of students currently enrolled and who will exit with IEP diplomas and those entering high school. Clarify how to provide highly mobile students with meaningful credential.

DEPARTMENT RESPONSE

Comments will be considered for SED guidance to be provided to the field.

COMMENT

Revise credential to represent mastery level with respect to soft skills and include in depth and measurable job, work related interpersonal, basic life and independence skills.

DEPARTMENT RESPONSE

Documentation issued with the credential must include the student's level of achievement and independence for each of the CDOS Learning Standards.

COMMENT

Credential language must emphasize students' strengths/skills and not highlight deficits (e.g., checklist of skills).

DEPARTMENT RESPONSE

Proposed amendment requires the related documentation include information describing the student's skills and strengths, interests and, as appropriate, other student achievements and accomplishments.

COMMENT

Combine credential with information from NYSAA as work is redundant. Credential based on NYSAA may not permit identification of certain relevant skills. Work back from desired skills sets to ensure there are ample opportunities for all students to develop credential skill sets. Credential should have benchmarks including links to existing CTE and vocational programs.

DEPARTMENT RESPONSE

While NYSAA measures a student's performance toward certain academic standards, the proposed credential additionally recognizes a student's level of achievement and independence toward CDOS standards.

§ 100.5 - Repeal of IEP diploma

COMMENT

IEP diploma does not provide necessary credentials for students to graduate; is often confused with a regular diploma; is considered substandard; limits students' post-secondary education options; is not recognized by employers as regular diploma and does not enable students to gain employment; is not based on consistent standards; does not adequately indicate career or college readiness or recognize students' vocational skills and training; is not consistent with NY's planned use of student learning objectives and growth goals; is inequitable and may be viewed as discriminatory. Proposed credential would be more accurate and valid credential representative of students' skills and knowledge. Students who do not have severe disabilities should be given chance to pursue a Regents diploma; decision that a student will earn an IEP diploma is often made too early.

DEPARTMENT RESPONSE

Comments are supportive in nature.

COMMENTS

IEP diploma was developed to recognize students with severe disabilities achieving milestone and to be on par with the graduation document other students receive; proposal denies students access to a diploma and is discriminatory; IEP diploma is right students have earned for public acknowledgement of their accomplishments; is an incentive to "graduate"; students who work hard deserve a diploma; is an appropriate credential for severely disabled students that require lifelong services/supports and allows focus on basic skill development. Working for a credential versus diploma may negatively impact students' self esteem and increase dropout rate. Benefits of IEP diploma are limited, but it allows some students access to post-secondary opportunities. Only apparent difference between credential and IEP diploma is that the credential is available only to NYSAA students. Instead of eliminating IEP diploma, include more vocational components and skills needed in post-secondary life.

DEPARTMENT RESPONSE

The proposed policy addresses public concerns that such students be awarded a credential that meaningfully documents the student's level of achievement and skills for future employment and/or post-secondary training and to address broad public concern that the term diploma was misleading to parents and students. Like the IEP diploma, the proposed credential must be similar in form to the diploma issued by districts, but must include a clear annotation to indicate that it is based on achievement of alternate academic achievement standards.

COMMENTS

Some support deferring development of an alternate credential for other students until new policy on graduation requirements is set and multiple pathways to graduation are established. Others support deferring adoption of the proposed rule until a credential option is developed for all students with disabilities. Proposed rule, in combination with the elimination of RCT safety net, will narrow graduation options for students with disabilities, exclude many students with disabilities from accessing an appropriate diploma/credential and limit post-secondary opportunities. Proposal provides no motivation for students not eligible for a credential or regular diploma to remain in school, and could result in more school related behavior issues and increases in suspension, drop out, and incarceration rates. Proposal sets "gray area" students up for failure and will force them into Regents courses, thereby limiting their ability to work on skills to prepare them for post-school life. Proposal will have an impact on curriculum and expectations for Regents bound students and may result in "watered down" courses to ensure "gray area" students pass. Need to focus, not defer, attention on developing a viable and meaningful diploma for this group of students. Both phases should be implemented simultaneously so that no students are left without a graduation credential. Defer implementation of credential and elimination of IEP diploma until decisions are made regarding graduation requirements and other options are in place for students "gray area" students. Ensure transitional planning period spanning two phases is not harmful to students.

DEPARTMENT RESPONSE

In addition to the proposed credential for NYSAA eligible students, prior to the 2013-14 school year, SED will propose an exiting credential that documents attainment of CDOS standards and acknowledges students' successful completion of academic and CTE programs and coursework.

COMMENT

Get broad stakeholder input on intended and potential unanticipated consequences of proposals. Monitor practical benefits of credential, including post-secondary career and educational outcomes, and audit NYSAA participation rates.

DEPARTMENT RESPONSE

SED sought extensive stakeholder input on the elimination of the IEP diploma and development of an alternate credential. SED continues to engage key stakeholders in development of guidance and sample forms that will be issued to the field. SED will be collecting and reporting on the percentage of students earning this credential as it currently does for IEP diplomas.

COMMENT

Revise graduation requirements, develop a continuum of diploma options; create multiple pathways to earn regular diploma; repeal requirement for high stakes tests; develop diplomas that have value to employers and meaningful links to post-secondary opportunities; allow students to specialize; begin early and connect with middle school/lower grade curricula; address differentiated needs of students; provide for family choice.

DEPARTMENT RESPONSE

Comments are beyond scope of proposed regulations.