MEMORANDUM 
To: SCPD, GACEC, & DDC
From: Brian Hartman
Re: Addendum to April 5, 2009 P&L Memo
Date: April 15, 2009
I am providing the following critique of H.B. No. 119 as an addendum to my April 5 P&L memo. Given time constraints, the analysis should be considered preliminary and non-exhaustive.
H.B. No. 119 (Public Education Overhaul)
This bill was introduced on April 8, 2009. As of April 14, it remained in the House Education Committee.
This bill effects wholesale changes to the public educational system. Unfortunately, some provisions would result in the outright repeal of time-honored protections for students with the most severe disabilities. Other provisions would establish a sweeping system of waivers resulting in a hodgepodge of standards and non-aligned curricula. I have the following observations.
First, the Legislature recognized long ago that students with very severe disabilities need consistency in programming to have any hope of meaningful progress. Therefore, students with manifestly severe conditions are currently offered programs on a 12-month schedule not to exceed 217-222 school days. This entitlement extends only to students with severe mental disability (I.Q. 0-35); trainable mental disability (I.Q. 35-50); autism; deaf-blindness; traumatic brain injury; and some orthopedic disabilities attributable to conditions such as muscular dystrophy, cerebral palsy, or amputation of limbs. The bill (lines 48-49) deletes these salutary protections altogether. This is highly objectionable and will result in the loss of extended programming for hundreds of students with extreme disability profiles.
Second, any district and any individual school would be authorized to obtain a waiver of any regulation, rule, policy, prescribed course of study, and some statutes (lines 82-85 and 102-103) based on amorphous criteria (lines 86-90 and 108-112). The targeted statutes highlighted for waiver are those requiring health and wellness educational programs; drug and alcohol educational programs; fire safety education; and physical fitness assessments at least once in elementary, middle, and high school (lines 84-85). Given the prevalence of childhood obesity and drug exposure, it is difficult to justify targeting such worthwhile instruction as fodder for waivers. Moreover, authorizing limitless waivers of any regulation, rule, or course of study will predictably result in undermining of State content standards and curricula (14 DE Admin Code 502); minimum graduation standards (14 DE Admin Code 505); DSTP assessments (14 DE Admin Code 100), etc. Everything is waivable! History instructs that waivers often become the norm. For example, a 1-22 teacher/pupil ratio for grades K-3 is established by statute (Title 14 Del.C. §1705A). Rather than meet the standard, the norm is to simply obtain a waiver. The exception becomes the rule and legislative intent is undermined.
Third, the Legislature’s historical approach to waivers is to limit authorization by both discrete context and time and to monitor waiver effects. For example, the authorization for a waiver of the 1-22 teacher/pupil ratio is specific to this context, must be reapproved annually, and is subject to analysis by the Department of Education (Title 14 Del.C. §1705A-1705B). In contrast, H.B. No. 119 has no limits in context or time and contemplates no review. Thus, schools and districts could be given indefinite or permanent waivers of some State laws and all State regulations.
Fourth, lines 52-54 ostensibly authorize districts to cap hours of instruction for individual students with disabilities based on a unilateral administrative decision. Such decisions can only be made by an IEP team with parental involvement, not through a unilateral decision by district administration. See attached Delaware DPI policy letter interpreting former special education regulations [“Changes to the length of the school day (lengthened or shortened) can only be made by the IEP team.”]. Moreover, to avoid illegal discrimination (14 DE Admin Code 225; 34 C.F.R. Part 104), the minimum hours for students with disabilities cannot be less than the minimum hours for students without disabilities. Lines 50-54 would benefit from the following revision:
The Department of Education shall promulgate regulations setting educationally appropriate standards for the presumptive minimum number of hours per week of instructional school time that districts must provide students with disabilities enumerated in this section. In no event shall the number of such hours be less than the minimum hours of instructional school time for students without disabilities. Local districts may vary cumulative hours of services for individual students if they can demonstrate by a preponderance of clinical or scientific evidence that the presumptive hours established by regulation are inappropriate for individual students. only by IEP team decision.
I recommend that the councils strongly oppose this bill with particular emphasis on the evisceration of summer programs for students with extreme disability profiles.
To: SCPD, GACEC, & DDC
From: Brian Hartman
Re: Addendum to April 5, 2009 P&L Memo
Date: April 15, 2009
I am providing the following critique of H.B. No. 119 as an addendum to my April 5 P&L memo. Given time constraints, the analysis should be considered preliminary and non-exhaustive.
H.B. No. 119 (Public Education Overhaul)
This bill was introduced on April 8, 2009. As of April 14, it remained in the House Education Committee.
This bill effects wholesale changes to the public educational system. Unfortunately, some provisions would result in the outright repeal of time-honored protections for students with the most severe disabilities. Other provisions would establish a sweeping system of waivers resulting in a hodgepodge of standards and non-aligned curricula. I have the following observations.
First, the Legislature recognized long ago that students with very severe disabilities need consistency in programming to have any hope of meaningful progress. Therefore, students with manifestly severe conditions are currently offered programs on a 12-month schedule not to exceed 217-222 school days. This entitlement extends only to students with severe mental disability (I.Q. 0-35); trainable mental disability (I.Q. 35-50); autism; deaf-blindness; traumatic brain injury; and some orthopedic disabilities attributable to conditions such as muscular dystrophy, cerebral palsy, or amputation of limbs. The bill (lines 48-49) deletes these salutary protections altogether. This is highly objectionable and will result in the loss of extended programming for hundreds of students with extreme disability profiles.
Second, any district and any individual school would be authorized to obtain a waiver of any regulation, rule, policy, prescribed course of study, and some statutes (lines 82-85 and 102-103) based on amorphous criteria (lines 86-90 and 108-112). The targeted statutes highlighted for waiver are those requiring health and wellness educational programs; drug and alcohol educational programs; fire safety education; and physical fitness assessments at least once in elementary, middle, and high school (lines 84-85). Given the prevalence of childhood obesity and drug exposure, it is difficult to justify targeting such worthwhile instruction as fodder for waivers. Moreover, authorizing limitless waivers of any regulation, rule, or course of study will predictably result in undermining of State content standards and curricula (14 DE Admin Code 502); minimum graduation standards (14 DE Admin Code 505); DSTP assessments (14 DE Admin Code 100), etc. Everything is waivable! History instructs that waivers often become the norm. For example, a 1-22 teacher/pupil ratio for grades K-3 is established by statute (Title 14 Del.C. §1705A). Rather than meet the standard, the norm is to simply obtain a waiver. The exception becomes the rule and legislative intent is undermined.
Third, the Legislature’s historical approach to waivers is to limit authorization by both discrete context and time and to monitor waiver effects. For example, the authorization for a waiver of the 1-22 teacher/pupil ratio is specific to this context, must be reapproved annually, and is subject to analysis by the Department of Education (Title 14 Del.C. §1705A-1705B). In contrast, H.B. No. 119 has no limits in context or time and contemplates no review. Thus, schools and districts could be given indefinite or permanent waivers of some State laws and all State regulations.
Fourth, lines 52-54 ostensibly authorize districts to cap hours of instruction for individual students with disabilities based on a unilateral administrative decision. Such decisions can only be made by an IEP team with parental involvement, not through a unilateral decision by district administration. See attached Delaware DPI policy letter interpreting former special education regulations [“Changes to the length of the school day (lengthened or shortened) can only be made by the IEP team.”]. Moreover, to avoid illegal discrimination (14 DE Admin Code 225; 34 C.F.R. Part 104), the minimum hours for students with disabilities cannot be less than the minimum hours for students without disabilities. Lines 50-54 would benefit from the following revision:
The Department of Education shall promulgate regulations setting educationally appropriate standards for the presumptive minimum number of hours per week of instructional school time that districts must provide students with disabilities enumerated in this section. In no event shall the number of such hours be less than the minimum hours of instructional school time for students without disabilities. Local districts may vary cumulative hours of services for individual students if they can demonstrate by a preponderance of clinical or scientific evidence that the presumptive hours established by regulation are inappropriate for individual students. only by IEP team decision.
I recommend that the councils strongly oppose this bill with particular emphasis on the evisceration of summer programs for students with extreme disability profiles.
