special ed appeals legislation

 

Governor Romney recently signed the legislation which makes changes to the MCAS performance appeals process to address equity concerns for students with disabilities.  With enactment of this important piece of legislation, legislative leaders and the Governor have taken an important step to help ensure that the MCAS test is administered in a manner which is fair and equitable for disabled youth.    Key points of the new law include: 

·        These new provisions are available to all students with disabilities, including students in the class of ’03, who have taken the regular MCAS test 3 times or submitted a portfolio 2 times. 

·        Superintendents must file an appeal to the Department of Education when requested by the parent (or student if age 18 or older).

 ·        Students with disabilities are not required to attain a score of 216 to be eligible for an appeal 

·        Students with disabilities are eligible for an appeal if their insufficient attendance level or inability to participate in remedial academic support services is related to the student’s disability.  

·        The IEP team can provide additional information indicating the student’s knowledge and skill levels which must be submitted as part of the appeal. 

·        The Commissioner of the Department of Education must grant the appeal for a child with a disability if there is a preponderance of evidence that the child’s knowledge and skills in math or English meet or exceed the performance level established for the competency determination (i.e. if a preponderance of the evidence indicates that a student has knowledge and skills commensurate with the “220” cut score on the standard MCAS test).  

·        The Commissioner must send notice of the results of the appeal to the student, parents, and the school district, and must send written findings in the case of a denial of an appeal.

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Actual text.

SPED appeals legislation

SECTION 119. Notwithstanding any general or special law to the contrary, the board of education shall take such action as necessary including, as appropriate, promulgating emergency regulations to modify the process governing the Massachusetts Comprehensive Assessment System, hereinafter referred to as "MCAS", performance appeals established by 603 CMR 30.05 for children with disabilities as defined by chapter 71B of the General Laws and section 504 of the Rehabilitation Act of 1973, 29 USC 794, and regulations promulgated thereunder, including children with disabilities subject to the MCAS graduation requirement in 2003.  The performance appeals process shall provide that any child with a disability shall be eligible for an MCAS appeal if the following criteria are met:- (a) the child has taken the grade 10 MCAS at least 3 times in each subject area required by the board of education for the competency determination and did not achieve a passing score or submitted a portfolio assessment through the MCAS Alternative Assessment at least 2 times without being granted a competency determination; (b) the child has maintained an adequate attendance level as established by the department of education or  the child's days of absences from school in excess of the number allowed by the department are excused; (c) the child has demonstrated participation in academic support services made available and accessible by or approved by the school district under an individual student success plan or under any other plan designed to strengthen the student's knowledge and skills in the subjects at issue, or the child's lack of participation in available academic support services has been related to the child's disability.  As provided in said regulations, the commissioner may, for good cause, waive any of the eligibility criteria upon the written request of the superintendent. 

            The regulations shall require that, at the request of the child's parent or guardian or the student who has reached the age of majority, the superintendent of schools or his designee for the school district in which the student is enrolled shall file an appeal on behalf of a child with a disability provided that the student meets the eligibility criteria set forth in the first paragraph.  The superintendent may initiate an appeal for a child with a disability with the consent of the parent, guardian or student who has reached the age of majority, if the student meets the eligibility criteria set forth in said first paragraph.  The superintendent may submit any written comments or evidence relevant to the appeal.  Denial of an earlier appeal shall not prevent a new appeal under this section. 

The regulations shall require that the superintendent include in the performance appeal evidence of the child's knowledge and skills in the subject at issue, including: (1) documentation that the child has met the local graduation criteria established by the local school committee; (2) a recommendation from at least 1 of the student's teachers in the area of appeal, assessing the level of the student's knowledge and skills in the subject area at issue; (3) where possible, a meaningful comparison of the student with a group of other students who passed the MCAS in the subject area of the student's appeal.  In the event of an inability to identify an appropriate set of students to enable a meaningful comparison with other students, this clause shall be waived and the superintendent may submit a portfolio of the student's work in the area of the appeal, as specified by the commissioner, sufficient to demonstrate whether the student's knowledge and skills meet or exceed  the performance level established by the board of education for the competency determination if the portfolio has been maintained by the school district; (4) documentation that the child's individual education plan team, if any, with the approval of a parent or guardian of the child, supports the graduation of the student; (5) any additional information that the student's individual education plan team, if any, with the approval of the student's parent or guardian, requests the superintendent to submit indicating that the child's knowledge and skill in the subject area of the appeal meets or exceeds the performance level established by the board of education for the competency determination and that the child's MCAS scores do not accurately measure the student's abilities; and (6) other supporting information relevant to the determination as to whether the student's knowledge and skills in the subject area of the appeal meet or exceed the performance level established by the board of education for the competency determination, which may include work samples, scores of the child on other standardized tests in the subject area of the appeal, evidence of acceptance to college courses, or other evidence of academic achievement which demonstrates that the child meets the competency determination standard. 

            Any documentation of an individual education plan team submitted in connection with an MCAS performance appeal shall not constitute a modification of the child's individual education plan under 34 C.F.R.  300.347 and is therefore not appealable to the Bureau of Special Education Appeals pursuant to 34 C.F.R.  300.507(a) or chapter 71B of the General Laws.  Nothing herein shall limit or expand a child's rights available under  said chapter 71B, IDEA or Section 504 of the Rehabilitation Act of 1973.

            The commissioner of education shall grant the appeal for a child with a disability if there is a preponderance of evidence in the documentation provided in clause (1) to (6), inclusive, the first paragraph and any other evidence submitted by the superintendent that the child's knowledge and skills in the subject area of the appeal meet or exceed the performance level established by the board of education for the competency determination.  The commissioner shall provide notice of the results of the appeal and, in the case of a denial, written findings, to the student, parents or guardian and superintendent.  The commissioner's decision on this appeal shall be final and shall not be subject to further review or appeal to any other entity; except that the regulations shall permit the superintendent to seek reconsideration from the commissioner.