March 6, 2006

Troy Justesen
U.S. Department of Education
400 Maryland Avenue, S.W.
Potomac Center Plaza
Room 5126
Washington, D.C. 20202-2641

Dear Dr. Justesen:

The National Center for Learning Disabilities (NCLD) respectfully submits recommendations to the Notice of Proposed Rulemaking (NPRM) regarding the proposed requirements and selection criteria for the Multi-Year Individualized Education Program (IEP) Demonstration Program as authorized by Public Law 108-446, 118 Stat. 2647, the Individuals with Disabilities Education Improvement Act of 2004 (IDEA).
First, NCLD endorses the comprehensive comments and recommendations submitted by the Education Task Force of the Consortium for Citizens with Disabilities (CCD). As an active member of the Education Task Force, NCLD participated in the development of the CCD comments and considers them to be thoughtful and responsible. NCLD urges the Department of Education to carefully review the CCD comments and recommendations.

In addition to the comments and recommendations submitted by the CCD Education Task Force, NCLD has concerns regarding potential conflict between the recently released proposed regulations pertaining to the assessment of IDEA-eligible students as required by Section 200.2 of No Child Left Behind using modified academic achievement standards. Specifically, proposed §200.1(e)(5) would require that IEP teams review on an annual basis their decision to assess a student based on modified achievement standards to ensure that those standards remain appropriate.

We appreciate the opportunity to comment and look forward to working with you as the pilots are implemented.

Sincerely,

James H. Wendorf
Executive Director

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Department of Education
RIN 1820-ZA41

The Individuals with Disabilities Education Act Multi-Year Individualized Education Program (IEP) Demonstration Program

Subject: Multi-Year IEP Public Comment

National Center for Learning Disabilities Comments - March 6, 2006

Recommendation 1: Add an additional requirement that a State submitting a proposal under the Multi-Year IEP Program must include a description of the process that will be used to annually review the manner in which all children with multi-year IEPS are participating in assessment required by Title I of the ESEA and how the Multi-Year IEP will be revised if the child’s IEP team determines that a change in the assessment option is necessary.

Rationale: Given that the new assessment option based on modified academic achievement standards has been developed by the Department following enactment of PL 108-446, and thus was not part of the thinking of the Congress when it crafted the statutory requirements for the Multi-Year IEP Program, it is imperative that the Department include a requirement for states to ensure that the IEP teams will annually review and revise, as appropriate, the assessment option by which the child is participating in assessments required by 200.2 of Title I of the ESEA. Absent a clear process for the required annual review of assessment participation, the Secretary should consider prohibiting students being assessed using modified academic achievement standards from being offered a Multi-Year IEP. GREAT IDEA!

Recommendation 2: Add additional requirements that States submitting a proposal under the Multi-Year IEP program must provide an assurance that it will not establish any Multi-Year IEP program that is restricted to any specific disability category or group of categories.

Rationale: Given the large variance of the population of IDEA-eligible students across disability categories (for example, 47 percent in the Specific Learning Disability vs. less than one percent in categories such as hearing impaired, vision impaired, and autism (see https://www.ideadata.org/tables28th\ar_1-3.htm), it may prove difficult for a school or district participating in the program to obtain both a Multi-Year IEP group and a control group that contains participants from all disability categories, or, at the least, equal representation of participants and control group participants by disability category. Yet the proposed evaluation design states that "These outcomes will be compared for students whose parents consent to their child's participation in a multi-year IEP and students who are matched on type of disability, age, prior educational outcomes, and to the extent feasible, the nature of the special education services, who do not participate in the multi-year IEP." Therefore, it should be noted that States participating in this program will need to exercise great caution to ensure that student groupings (Multi-Year IEP group and control group) are representative of the IDEA-eligible population as a whole.

Recommendation 3: NCLD recommends that the proposed notice be revised to prohibit use of the Paperwork Waiver Program as a vehicle for implementing multi-year IEPs that do not comply with the terms of the Multi-Year IEP Demonstration Program. Additionally, the proposed notice should make clear that States receiving awards for both the Paperwork Waiver Program and the Muli-Year IEP Demonstration Program shall not utilize the provisions of the Paperwork Waiver Program to put into place a Multi-Year IEP Demonstration Program that conflicts with the requirements of that program.

Rationale: In crafting the statutory requirements for the Multi-Year IEP Demonstration Program, Congress provided strict criteria for that program, including a requirement that the content, development, review, and revision of the IEP as required under Section 614 (d) apply to participants of the Multi-Year IEP Program. Therefore, it would be contradictory to the intent of Congress for a State to circumvent any of the requirements of 614(d) as part of the Paperwork Waiver Program.

Given that the Act authorized two demonstration programs, each available to 15 States, it would seem apparent that there will be some states that will apply for and receive awards for both programs. While the U.S. Department of Education has made it clear in each of the NPRMs that an application and award for one program does not preclude an application and award for the other, the Secretary has not provided any guidance regarding the obligations of any State that receives awards for both programs. Such guidance should be contained in final notices for each demonstration program and should provide States with information regarding specific activities that are not allowable when executing the two programs concurrently in the same school and district. The Secretary should also consider prohibiting a State that receives awards for both programs from executing both programs in the same school and/or district. Such a prohibition would allow for a more precise evaluation of each program. Results obtained by a school or district commingling the activities allowed under each program would result in a different set of outcomes that would not be comparable to results obtained by a school or district executing one program.