Final Report Without Title Page

TABLE OF CONTENTS

Page I.

INTRODUCTION AND OVERVIEW OF ISSUES 1 I. Scope of Report II. An Institution in the Process of Change and the Challenges Ahead III. The Role of the Maryland State Department of Education and its Intensive Management Capacity Team IV. Improvement Student Achievement on the Maryland School Achievement Tests V. Charter and Contract Schools

II.

OUTCOMES 3 AND 4: GRADUATION AND SCHOOL COMPLETION I. Overview II. Graduation and School Completion Data III. Institutional Mechanism to Support Improved Graduation and School Completion Rates IV. Recommendations

27

III.

OUTCOME 7: STUDENT DISCIPLINARY REMOVALS I. Overview II. Manifestation Meetings, Functional Behavior Assessments and Behavior Intervention Plans [OSEMC Audits] III. School Based Documentation / Reporting Issues IV. Provision of FAPE to Students Removed More Than 10 Days In A School Year Pursuant To IDEA Disciplinary Provisions V. Recommendations: Measures and Evidence That Will Move BCPSS Toward Substantial Compliance

37

IV.

OUTCOMES 8 AND 9: DELIVERY OF IEP SERVICES IN THE LEAST RESTRICTIVE ENVIRONMENT I. Overview II. Evidentiary Findings III. Recommendations

58

V.

OUTCOME 11: INTERRUPTIONS IN THE PROVISION OF IEP SERVICES I. Overview II. Summary of Relevant Evidence III. BCPSS Efforts to Develop and Strenghen Internal Institutional Processes IV. Office of Compensatory Services (“OCS”) V. Recommendations

88

VI.

OUTCOME 13: CONDUCTING IEP MEETINGS FOR STUDENTS DESIGNATED AS DROPOUTS. I. Overview and Summary of Findings II. Recommendations

109

TABLE OF CONTENTS

Page I.

INTRODUCTION AND OVERVIEW OF ISSUES 1 I. Scope of Report II. An Institution in the Process of Change and the Challenges Ahead III. The Role of the Maryland State Department of Education and its Intensive Management Capacity Team IV. Improvement Student Achievement on the Maryland School Achievement Tests V. Charter and Contract Schools

II.

OUTCOMES 3 AND 4: GRADUATION AND SCHOOL COMPLETION I. Overview II. Graduation and School Completion Data III. Institutional Mechanism to Support Improved Graduation and School Completion Rates IV. Recommendations

27

III.

OUTCOME 7: STUDENT DISCIPLINARY REMOVALS I. Overview II. Manifestation Meetings, Functional Behavior Assessments and Behavior Intervention Plans [OSEMC Audits] III. School Based Documentation / Reporting Issues IV. Provision of FAPE to Students Removed More Than 10 Days In A School Year Pursuant To IDEA Disciplinary Provisions V. Recommendations: Measures and Evidence That Will Move BCPSS Toward Substantial Compliance

37

IV.

OUTCOMES 8 AND 9: DELIVERY OF IEP SERVICES IN THE LEAST RESTRICTIVE ENVIRONMENT I. Overview II. Evidentiary Findings III. Recommendations

58

V.

OUTCOME 11: INTERRUPTIONS IN THE PROVISION OF IEP SERVICES I. Overview II. Summary of Relevant Evidence III. BCPSS Efforts to Develop and Strenghen Internal Institutional Processes IV. Office of Compensatory Services (“OCS”) V. Recommendations

88

VI.

OUTCOME 13: CONDUCTING IEP MEETINGS FOR STUDENTS DESIGNATED AS DROPOUTS. I. Overview and Summary of Findings II. Recommendations

109

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Vaughn G., et al.,

) ) ) ) )

Plaintiffs, v. Mayor and City Council of Baltimore, et al., Defendants.

Civil Action No. MJG-84-1911 (Consolidated) ) EXEMPT FROM ECF )

) )

INTRODUCTION AND OVERVIEW OF ISSUES I.

Scope of Report This Report delineates the Baltimore City School System’s (“BCPSS”) progress

toward achievement of the seven remaining Ultimate Measureable Outcomes specified in the May 4, 2000 Consent Decree, as amended.1 The Report analyzes progress through the 2007/08 school year (“SY”)2, although it also recognizes various initiatives and institutional changes implemented in the 2008/09 SY that are relevant to findings made 1

The Court has previously ruled that the BCPSS has achieved Outcomes 5, 10, 12, 16 and 18, subject to express conditions regarding the BCPSS’ obligation to maintain procedural and substantive compliance with these Outcomes and a fully effective special education student data tracking system. See, Stipulation and Consent Order Regarding Ultimate Measurable Outcomes of July 28, 2003 [Paper No. 1287] confirming state of the record and changing Outcomes 7 and 13 to “substantial compliance” Outcomes. In addition, the Court has released the BCPSS from Outcomes 6 and 14 based upon findings that BCPSS achieved the requirements of these Outcomes. [Order of Feb. 4, 2004, Paper Numbers 1350 and Order of Feb. 2005, Paper No.1470]. Finally, in an Order dated December 15, 2005 [Paper No. 1590], the Court confirmed that BCPSS has achieved Outcome 15, subject to the express condition that the Maryland State Department of Education (“MSDE”) would be legally responsible for oversight and monitoring of the BCPSS’ continued compliance with IDEA’s student progress report requirements that mirrored Outcome 15 and would assure that BCPSS maintained a high standard of compliance with these requirements. The currently outstanding Outcomes obviously entail some of the most challenging requirements for BCPSS. 2 The BCPSS filed its 2008/08 SY end-of-year report on July 31, 2008. [Paper No. 1731] Supplemental data was produced in the months thereafter both by the BCPSS and the MSDE in response to information and data requests submitted by the Special Master. In the interest of providing timely monitoring evaluative feedback to the parties, the Special Master circulated a condensed draft version of this Report to the parties on October 25, 2008. All parties were given an opportunity to provide comments and discuss concerns regarding the draft report findings and recommendations. The Special Master, thereafter, worked with the parties to forge consensus regarding the potential scope of her remedial recommendations.

as to the specific Outcomes. As a whole, the Report reflects the BCPSS’ serious engagement in work focused on meeting the objectives of the Consent Decree and marked progress in a range of areas. Most significantly, the Special Master makes findings and recommendations that: (1) the K-5 programs in elementary and K-8 schools, subject to certain exceptions and verification provisions, have reached substantial compliance with Outcomes 7 and should be deemed inactive under the Consent Decree; and (2) K-5 elementary schools subject to certain exceptions and verification provisions, have reached substantial compliance with Outcomes 8 and 9 and should be deemed inactive under the Consent Decree. At the same time, the Report identifies major continuing challenges and performance issues that impact the Defendants’ complete achievement of the remaining Outcomes. Each of the outstanding Outcomes are now classified as “substantial compliance” Outcomes pursuant to the Consent Order of May 4, 2000, Paper No. 950, as amended by Stipulation and Consent Order of July 28, 2003[ Paper No. 1287] .3 These Orders provide that for “substantial compliance” as opposed to strict compliance Outcomes, the Court must determine substantial compliance based on three factors: a.

Progress toward the Outcome;

b.

Assessment of effectiveness of the institutional mechanisms for meeting and maintaining the Outcome; and,

c.

Student achievement.

Accordingly, the evidence and analysis provided in this Report address all three factors. Defendants’ substantial fulfillment of all critical elements of an Outcome over a

3

The original May 4, 2000 Consent Order provided that Outcomes 7 and 13 would be reviewed on a strict compliance basis. The Stipulation and Consent Order Regarding Ultimate Measurable Outcomes, [Paper No.1287] changed Outcomes 7 and 13 to “substantial compliance” Outcomes.

2

sustained period, as supported by reliable data,4 must be viewed as the highest and best evidence of achievement of the Outcome. In the absence of actual full achievement of an Outcome, the Court and Special Master must weigh evidence pertaining to all three substantial compliance factors. In some instances, evidence with respect to one or another factor may be particularly compelling or relevant. Clearly, evaluation of the achievement of “substantial compliance” ultimately entails a review of the totality of evidence, in light of the three factors – and not a rigid, mathematically proportionate application of evidence pertaining to each individual factor. As indicated in the Court’s Order of December 17, 2004 [Paper No. 1460], analysis of the school district’s institutional “mechanisms” requires consideration of a wide range of issues – e.g., stability and adequacy of funding; management of personnel functions and sustenance of proper staffing; deployment of effective processes for ensuring continuity of delivery of educational and related services; and operation of functional and accurate student tracking and data systems. These issues are addressed throughout this Report. Finally, the Report reviews student achievement data that reflects the scope of improvement of students with disabilities as a separate group as well as in comparison to the improvement of regular education students. These data are a significant indicator of whether students with disabilities indeed are progressing within the school system and, in particular, gaining effective access to the benefits of the general education program, the ultimate objective of Outcomes 3, 4, 8 and 9.

4

As the Court has previously held, “The Court cannot determine there has been compliance with an Outcome unless that determination is based upon reliable data.” Order April 19, 2004 [Paper No. 1378]

3

II.

An Institution in the Process of Change and the Challenges Ahead Dr. Andres Alonso began his tenure as the BCPSS Chief Executive Officer in

August 2007. In the span of approximately eighteen months, he has brought a high level of urgency, drive, candor, and intellectual command to school reform efforts in Baltimore that had not been evident during the many preceding years of this case’s pendency before the Court. His leadership represents an extraordinary opportunity for the BCPSS to leap forward in its delivery of educational services to students with disabilities, as well as to all students. Even in the face of budgetary retrenchment, Dr. Alonso thus far has creatively spearheaded reform efforts that seek to maximize resources at the school level and hold schools accountable for performance results. Proper funding of the school system -- including funding of diverse instructional programming, school-based staffing, special education resources, student support services, expanded professional and leadership development and program initiatives -tests the City’s and the State’s commitment to transforming educational opportunities for the children of the City of Baltimore. Absent the infusion of state stabilization funds authorized pursuant to the American Recovery and Reinvestment Act of 2009, the State and City’s falling tax revenues would have resulted in severely damaging funding reductions in the coming school year. Such reductions would have imperiled the school system’s capacity to implement expanded educational program initiatives and sustain progress. At this juncture, it is clear the school district will remain in a financially viable, if challenging, posture. The State budget now calls for restoration of $30 million in funds originally proposed as cuts. The school district’s budget projections include an additional $26 million in cuts in regular funding, excluding consideration of the two year special of

4

federal stimulus dollars for categorical programs. While a host of questions exist with respect to the terms and limitations that will be tied to the two year grant of federal stimulus funds targeted for use in federal categorical programs (e.g. via Title I or IDEA), the availability of these funds represents a significant time-limited opportunity for the district to obtain additional resources to drive and supplement its reform efforts. The year ahead thus represents a critical moment both for the future of the City schools and the evolution of this case. The BCPSS Compliance Statement for the 2007/08 school year asserts the school district has achieved substantial compliance with Outcomes 4, 7, 8, and 9; partial compliance with Outcomes 3 and 13; and non-compliance with Outcome 11. The Compliance Statement’s assertion of “substantial compliance” for Outcomes 7 – 95 is largely based on the school district’s view that it has satisfied the Consent Decree’s three prongs for demonstrating substantial compliance. In the school district’s view, their position is supported by evidence of improvement in academic achievement as reflected in K-8 testing and the wide range of substantial initiatives that the school district has launched to expand and support educational programming.6 The school district’s reform initiatives encompass curriculum reform; restructuring of the central office leadership team and reduction of central office staff; creation of a new school funding formula, expanded autonomy for principals in exchange for heightened accountability, improved levels of hiring and retention of highly qualified

5

Outcome 7 provides that disciplinary removals must be executed in conformity with IDEA. Outcomes 8 and 9 require special education students’ receipt of required services pursuant to their Individualized Education Programs’ (“IEPs”) in regular and combined general education settings and in schools the students would normally have attended but for their disability. 6 The significance of the school district’s achievement gains will be assessed at the conclusion of this section.

5

teachers, increased teacher planning and collaboration, the opening of six new, small combined middle-high schools (“Transformation Schools”) to meet the needs of Baltimore secondary students; expanded professional development; more intensive student attendance review and support efforts; the overhaul of alternative schools; and new standards for central office oversight of student disciplinary removals. These initiatives and others7 are enormously promising in their range, substance, and potential for improving educational services. Dr. Alonso has clearly galvanized the school system and begun to put in place essential building blocks for change. However, implementation, as opposed to planning of these initiatives, by and large commenced in the 2008/09 school year. For that reason, the Special Master recognizes these developments as potentially critical indicators that the BCPSS, in the near future, will possess the essential foundation mechanisms needed to meet and maintain progress toward the Consent Decree Outcomes. Yet there is a distance between future implementation and the here and now. The life cycle of school reform efforts in this case has sometimes proven truncated; progress achieved through hard work and planning has too often evaporated under the pressure of funding cuts, politics, and sudden organizational upheaval. Evidence of what actually transpires this school year and in the funding projections for the coming years may well be determinative of whether the conditions for “substantial compliance” are properly established. The Special Master recognizes the significant work that central office staff invested in management of the 2007/08 SY Implementation Plan (“IP”). Specific staff 7

The effective implementation of an integrated special education and regular education student information system will play a critical role in compliance management and self-monitoring from the Special Master’s perspective.

6

members were assigned to take lead responsibility in oversight of each Outcome. This was generally an efficient process for managing the central office’s role in oversight of the IP, though it proved a less effective process in the latter part of the second semester. The challenges of preparing the system to implement the new plan for school funding to devolve to the schools in the spring of 2008 in conjunction with the imminent elimination of area offices diminished staff time and ability to focus on IP work. Due to transitions in the top leadership of the Student Support Services Office and management issues within the Office that arose in the first semester of the 2007/08 SY, the central office found itself in a perpetual catch-up mode in the second semester relative to the variety of Outcomes that required the leadership involvement of the Student Support Office.8 Dr. Alonso directed the Area Administrative Officers (“ AAOs”) to assume primary responsibility for the training of principals in the 2007/08 SY to ensure that both the Area staff and local school principals (supervised and evaluated by the AAOs) would view themselves as independently accountable for carrying out the IP. Lead central office managers provided training to the AAOs on the IP objectives, requirements, and reporting that was to be provided to the AAOs in several lengthy sessions in the fall of 2007. The AAOs in turn provided training to principals of schools in their areas, with assistance from central office staff. Although a number of the AAOs initially indicated reluctance to assume this direct training and supervisory role in connection with the IP, they ultimately provided the required trainings and completed the IP reporting documentation.

8

By contrast, the Student Support Services Office in the 2008-09 SY has taken a proactive role in leading efforts to address student truancy, school discipline challenges, and in developing more effective student support services throughout the district.

7

The BCPSS’ reporting of evidence that correlates with the IP benchmarks or strategies was highly variable. The central office’s capacity to document the IP benchmark evidence deliverables depended in large part on the collaboration and work of staff at the Area and school level, and the schools and Areas made this task difficult because their reporting reflected different levels of data, detail, candid analysis, and engagement with the IP work strategies. The Special Master observed during her monitoring visits to schools that the structure for local school IP reporting created by the central office did result, as a whole, in schools’ greater focus on their IP responsibilities. Schools’ IP documentation additionally indicates that some principals clearly understood and followed-through on their responsibilities as well as reported on their execution. On the other hand, others routinely made notations such as “no problems” or “no issues” in response to critical IP components. The final IP school and area documentation submitted at the conclusion of the 2007/08 SY did not contain detailed or up-to-date information for a number of schools and areas. Whether this simply reflects a failure to document the work is not known. The Special Master recognizes that the major organizational transition occurring in the school system at the end of the school year9 may have left school and Area staff with insufficient time or focus to concentrate on IP activities, reporting, or analysis, although the Special Master notes this reporting should have reflected work over an entire semester.

9

The structure of Area Office management was in the process of being eliminated by the end of the 07/08 school year. As funding was substantially devolved to schools for the 2008/09 SY, schools were invested with responsibility for development of new school based budgets, with full participation of the school community. This planning process occurred in May and June 2008. Special education funding management and control was maintained by the Central Office in the 2008/09 SY but will devolve to the schools in the 2009/10 SY.

8

The central office staff generally approached the IP implementation process in a professional and energetic manner. They created an “IP Stat” monthly collaborative review process in the course of the year to discuss with Area Officers and other lead staff the significant compliance developments, both positive and negative, identified by ongoing data analysis and any follow-up measures required. They proceeded with a serious effort to implement a data-driven management approach to execution of the IP and Consent Decree. While the final IP reporting did not provide the scope of benchmark evidence specified by the IP, the Special Master recognizes that central office staff significantly escalated the entire school district’s level of IP engagement, use of data, and reporting as a result of their activities in the 2007/08 SY. As devolution of authority, funding, and responsibility to local schools proceeds, the big question is whether local schools will be able to step up to the challenge of implementing the objectives and requirements of the Consent Order on a sustained basis. The improvement of the school system’s performance in the 2008/09 SY makes clear that the Central Office is capable of driving improved compliance in any specific area for particular audits or time frames through focused, intense work. Yet as Dr. Alonso has recognized, at bottom line, local schools must be capable of implementing appropriate delivery of special education and managing legal compliance with the requirements of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq. and the Consent Decree. Otherwise, the BCPSS will not be able to sustain the change implemented to date and fundamental IEP service and compliance problems will arise anew when the pressure valve of central office or close court oversight is released.

9

III.

The Role of the Maryland State Department of Education and its Intensive Management Capacity Team The Maryland State Department of Education (“MSDE”) has played an important

role in this case for most of its duration. After the sustained budget crisis and collapse of special education and related services that occurred in the 2003-2005 period, the Court issued Emergency Orders directing the Maryland State Department of Education to assume a direct oversight and support leadership role in operation of the District. (Orders of August 12 and 25, 2005; Paper # 1539 & 1541) The MSDE appointed an Intensive Management Capacity Improvement Team (“IMCIT”) of advisors to collaborate with lead BCPSS staff in an effort to provide effective leadership in establishing core functionality in the delivery and management of instruction, special education, human resources, transportation, curriculum, information technology, and related services. The Orders also called for the MSDE to expand the department’s monitoring of BCPSS and recognized that this monitoring would provide a transitional means by which the Special Master and Court would confirm the State’s capacity and commitment to exercising appropriate oversight over issues that lay at the heart of the Consent Decree. The MSDE has embraced both the monitoring and leadership capacity building roles and has provided important institutional back-up support for the BCPSS. The MSDE has continuously improved the scope and quality of its monitoring and resulting data and has partnered effectively with the Special Master’s Office. As reflected in this Report, the MSDE’s Enhanced Monitoring for Continuous Improvement and Results (“EMCIR”) audits have yielded critical information for both monitoring and corrective action purposes. Assuming the BCPSS continues to make progress and meets substantial

10

compliance standards for release from the Outcomes, it is vital that MSDE maintain the capacity to perform such intensive audits for oversight purposes.10 IMCIT’s work has yielded positive results in areas ranging from transportation to related services, although its success has been constrained to a varying extent as a result of the understandable difficulties entailed in grafting a team of state leadership consultants onto an existing school district leadership structure. In the year after its appointment, BCPSS staff viewed IMCIT’s role with hostility and skepticism. However, as time has progressed, the relationship has become a more productive one. Dr. Alonso and State Superintendent Nancy Grasmick appear to have established sufficiently strong lines of communication to resolve any major issues of contention that arise. IMCIT members work in an ongoing consultative capacity with school district leaders as they attempt to implement major system changes. Moreover, IMCIT’s work in particular areas entails concrete “hands on” work that should be specifically recognized: •

IMCIT’s lead member for related services has played a vital role in supporting the BCPSS efforts to expand and manage its related service provider capacity and ensure continuity in related service provision to students. She has similarly worked side by side with the BPCSS staff to expedite and manage the district’s delivery of compensatory services to the high volume of students impacted by interruptions in services from 2003/04 SY forward.

•

IMCIT and the MSDE have played an instrumental role with respect to preparing the BCPSS to deploy the Voluntary State Curriculum and in implementation of the new statewide electronic IEP system.

10

The MSDE’s greater receptiveness over the last two years to the Special Master’s recommendations regarding modifications in EMCIR auditing processes has resulted in an increased scope, reliability, and usefulness of EMCIR monitoring reports, from the Special Master’s perspective. Further improvements in the auditing process are planned for the 2008/09 SY, to ensure the substantive focus of monitoring findings and use of separate sample populations for different types of audits. A reversion to the traditional, procedurally dominated state model of monitoring would result in a significant loss of information and feedback with respect to the nuts and bolts reality of IEP service delivery, student outcomes, and legal compliance within the BCPSS schools.

11

•

IMCIT’s lead member for transportation services has functioned as a key member of the BCPSS team tackling the challenges in provision of bus transportation services to students without interruptions. Prior to his joining the BCPSS team, hundreds of students were forced to use unreliable taxi transportation and a host of problems impacted school buses’ timely arrivals and deliveries of students to schools. Significant improvement in the reliability and tracking of transportation service for students with disabilities has occurred over the last three years, even though notable problems remain.

•

IMCIT and the MSDE have served as an ongoing supplemental resource for the BCPSS in its development and implementation of professional development initiatives relating to inclusive instructional practices and programming for principals and teachers, school leadership, and effective delivery of the voluntary state curriculum.11 IMCIT additionally initiated a partnership between targeted BCPSS schools and Howard County schools for the purpose of providing BCPSS teachers and principals an opportunity to work with Howard County school staff who had successfully implemented co-teaching in inclusive classes of special and regular education students. The school district now has pursued similarly partnership opportunities with schools in other districts.

•

IMCIT has provided additional back-up expertise and resources in a range of BCPSS’ information technology and system initiatives, including among others, movement to a new, integrated student information management system (“SMS”) from the increasingly obsolete Special Education Tracking System (“SETS”) and general student information data base (“SASI”), digitization of student records, and development of an information data “dashboard” for principals.

Given the broad scope of staffing and program changes that Dr. Alonso has initiated in the last year, the BCPSS’ leadership and top level organizational needs are clearly different than in the 2005 period when IMCIT commenced its work pursuant to the Court’s Emergency Order. The Special Master suggests that this may be an appropriate time for MSDE, after consultation with BCPSS leadership, to assess what 11

IMCIT piloted during the first semester of the 2007/08 SY an effort to provide intensive support and professional development to a group of five targeted schools with records of significant deficiencies in academic achievement and special education delivery. This targeted effort did not appear to make significant headway in results. This was in part due to the entrenched nature of the problems in these schools. It was also partially due to this school based initiative being implemented at an early point in Dr. Alonso’s tenure as CEO when his leadership team was not prepared to or did not adopt and integrate the pilot project into their work focus. Accordingly, IMCIT determined that it could be more effective by returning to a systemic focus for support of the BCPSS’ reform efforts.

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recommendations it may want to make to the Court regarding IMCIT’s future focus areas and role in the school system. Ongoing adaptation of the IMCIT and its direction will facilitate MSDE’s playing a dynamic and supportive leadership role in the critical work ahead for the BCPSS.

IV. Improvement Student Achievement on the Maryland School Achievement Tests As noted above, the Consent Decree treats improved student achievement as one of three salient factors for assessing substantial compliance. The entire premise of the Least Restrictive Environment (“LRE”) provisions of IDEA as well as the testing and accountability provisions of the No Child Left Behind Act of 200112 (“NCLB”) is that instruction of students, to the greatest extent possible, in the general education classroom along with delivery of appropriate IEP services, modifications and accommodations will provide special education students effective access to the general education curriculum and result in their participation in district and statewide assessments and successful achievement outcomes. The Special Master therefore now turns to an evaluation of available evidence of improvement in student performance. This analysis focuses on the Maryland Student Achievements (“MSAs”), High School Assessment (“HSA”) test data for the 2007/08 SY. Relevant school graduation, completion, and dropout measures are separately discussed in Report’s section on Outcomes 3 and 4. The Special Master does not consider here the SAT data presented by Defendants, as it is not disaggregated for students with disabilities and in any event relates to only a small portion of the high school special education population. The overall testing trends discussed here are 12

Public Law 107-87

13

graphed in Exhibit 1 (Charts 1 – 8 attached) and Exhibit 2 (HSA testing and high school achievement outcomes). The BCPSS Compliance Statement reports the City elementary and middle schools turned in their highest scores on the Maryland Student Achievements (“MSAs”) since the test’s inception in 2003. The BCPSS states every grade taking the test showed improvement in both reading and math. The school district’s Compliance Statement indicates that more than 3000 additional students scored proficient or advanced in reading and 1900 additional students scored proficient or advanced in math. It projects that all district elementary schools and all subgroups within the schools will have made AYP for the 2007 - 2008 school year. While this projection proved to be overly optimistic, the school system’s continued trend of improvement in standardized MSA test measures of progress is significant for purposes of analysis of substantial compliance. The BCPSS contends that its students have out-performed the statewide averages in elementary and middle school grades. See, Compliance Statement, p.3. Although the improvement in scores is important and demonstrates overall improvement in academic areas in grades 3 through 8, particularly for special education students, it is important to understand this improvement in the context of the BCPSS’ extremely low starting point. There is, of course, much greater potential to effect positive change for measures that start at the lower levels of performance. Comparing rates of change in a proportional (percentage) measurement is not always an effective way to measure performance. In analyzing data, those elements that start with a lower base score have the numeric potential to produce a much larger percent (rate) of change than those elements with higher base scores. Table 1, below, uses actual data to demonstrate the volatility of

14

percentage of change or improvement. The table also demonstrates how these rates of change may be misleading. Table 1 Row

A B C

BCPSS MS/Sp.Ed MD MS/Sp.Ed. MD MS/Sp.Ed.

2007

2008

17.4% 34.2% 34.2%

28.0% 43.5% 55.1%

Percentage point increase 10.6 9.2 20.8

Percent Of Increase 60.8% 26.9% 60.8%

When the percentage of special education students scoring proficient and advanced in BCPSS middle schools increased from 17.4% to 28% (Row A), this was a 10.6 percentage point increase. This 10.6 percentage point increase generated a 60.8% percent rate of increase. Row B contains the Maryland data as a whole. In this situation an increase of 9.2 percentage points, generates only a 26.9% rate of increase. The actual difference between the percentage point increases was only 1.4 points, but the percentage rate of increase differed by 33.9%. To achieve the 60.8% percent of increase achieved by the BCPSS the state would have had to increase advanced and proficient scores by 20.8 percentage points.13 Thus when the BCPSS reports there has been a 514% increase in students scoring advanced in reading since the 02/03 SY, it must be remembered that the base in that year was extremely low.14

13

Calculation: Determine the actual percentage point increase by subtracting 2007 scores from 2008 scores. Calculate the percent of increase by dividing the actual increase by the base year percentage. 14 The Special Master does not have all data from 2003, but notes that only 55 middle school students scored proficient or advanced in reading that year.

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A.

Elementary grades 3 through 515

Since 2004, the BCPSS special education students in grades 3 through 5, have shown a steady increase in both the actual number of students and the percentage of students scoring proficient or advanced on the MSA in Math. The greatest increase was between 2007 and 2008 when the percentage increased by 16.2 points from 38.6% to 54.8%, and the actual number increased by 293 from 1,128 to 1,421. Between 2004 and 2008 the BCPSS students achieving advanced or proficient scores increased by 30.4 percentage points from 24.5% to 54.8% and the numbers increased by 798 students from 623 to 1421. BCPSS general education students also showed steady increases in the same time period with 1928 students scoring proficient or advanced and a percentage point increase of 15.7 points between 2004 and 2008. In the same time period elementary school mathematics scores improved statewide. From 2004 to 2008 special education students scoring advanced or proficient increased by 16.8 percentage points from 42.1% to 58.9%, and the actual number of students scoring at that level increased by 772 students from 3,081 to 3,853. Over 1000 more state general education students achieved the advanced or proficient level in the same time frame, but the percentage increased only 9.1 points. The BCPSS special education students in grades 3 through 5 have shown steady and even more significant growth in both the actual number of students and the percentage of students scoring proficient or advanced on the MSA in Reading. The greatest increase again was between 2007 and 2008 when the percentage increased by

15

The data that follow are data from the MSDE. There are some differences in the numbers reported by the BCPSS and those reported by the MSDE. The BCPSS does not include the Edison Schools in its totals for the 07/08 SY, and it does include results from students in placements such as the Maryland School for the Blind.

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12.2 points from 30.8% to 43%, and the actual number increased by 648 from 1,766 to 2,406. Between 2004 and 2008 the BCPSS students achieving advanced or proficient scores increased by 35.6 percentage points from 17.4% to 43.0% and the numbers increased by 1222 students from 1184 to 2406. BCPSS general education students also showed steady increases in the same time period with 20,935 students scoring proficient or advanced and a percentage point increase of 26.1 points between 2004 and 2008. In the same time period elementary school reading scores improved statewide. From 2004 to 2008 special education students scoring advanced or proficient increased by 24.2 percentage points from 42.5% to 66.7%, and the actual number of students scoring at that level increased by 3869 students from 10,128 to 13,988. Almost 11,000 more state general education students achieved the advanced or proficient level in the same time frame, but the percentage increased only 13.2 points. B.

Middle grades 6 through 8

Since 2004, the BCPSS special education students in grades 6 through 8 have shown a much smaller though steady increase in both the actual number of students and the percentage of students scoring proficient or advanced on the MSA in Math. The greatest increase was between 2007 and 2008 when the percentage increased by 7.3 points from 8.7% to 16%, and the actual number increased by 191 from 259 to 450. Between 2004 and 2008 the BCPSS students achieving advanced or proficient scores increased by 11.8 percentage points from 4.2% to 16.0% and the numbers increased by 350 students from 100 to 450. BCPSS general education students also showed more significant steady increases in the same time period with 5,855 students scoring proficient or advanced and a percentage point increase of 19.3 points between 2004 and 2008.

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In the same time period middle school mathematics scores improved statewide. From 2004 to 2008 special education students scoring advanced or proficient increased by 19 percentage points from 13.2% to 32.2%, and the actual number of students scoring at that level increased by 3454 students from 3,366 to 6,820. Almost 4,000 more state general education students achieved the advanced or proficient level in the same time frame, and the percentage increased by 19.6 points. As with math, since 2004, the BCPSS special education students in grades 6 through 8, when compared to elementary school students, have shown a much smaller though steady increase in both the actual number of students and the percentage of students scoring proficient or advanced on the MSA in Reading. The greatest increase was between 2007 and 2008 when the percentage increased by 10.6 points from 17.4% to 28.0 %, and the actual number increased by 272 from 520 to 782. Between 2004 and 2008 the BCPSS students achieving advanced or proficient scores increased by 19.4 percentage points from 8.5% to 28.0% and the numbers increased by 462 students from 320 to 792. BCPSS general education students also showed more significant steady increases in the same time period with 9,107 students scoring proficient or advanced and a percentage point increase of 14.5 points between 2004 and 2008. In the same time period middle school reading scores improved statewide. From 2004 to 2008 special education students scoring advanced or proficient increased by 18.1 percentage points from 25.4% to 43.5%, and the actual number of students scoring at that level increased by 2,704 students from 6,510 to 9,214. Over 6,000 more state general education students achieved the advanced or proficient level in the same time frame, and the percentage increased by 10.8 points to 83.0%.

18

One predominant negative trend in achievement has continued: there is a precipitous decline in the number of students scoring proficient and advanced between 5th and 6th grades followed by an on-going decline in the middle school years. This decrease in percentage of students scoring proficient or advanced leaves eighth grade students at significantly lower levels of achievement than the levels they achieved in 5th grade. Furthermore, in each year since 2004, except in the 05/06 SY when the decline was slightly less than in 04/05, middle school students have lost more ground than in the preceding year. See, Tables 2 and 3 below. Table 2 MSA Math % Proficient and Advanced 5th grade

6th grade

7th grade

8th grade

Percentage point loss in middle school16 All All All All Spec. All Spec Spec. Spec. Spec. Ed. Ed. Ed. Ed. Ed. 07/08 67.4% 43.3% 50.6% 27.0% 33.6% 13.7% 28.4% 8.0% 22.2 19 SY 06/07 63.9% 40.2% 42.4% 16.3% 25.7% 5.1% 24% 4.8% 18.4 11.5 SY 05/06 53.7% 24.0% 31.4% 6.4% 24.8% 4.2% 21.6% 3.6% 9.8 2.8 SY 04/05 48.5% 23.6% 28.4% 6.7% 18.4% 3.3% 19.5% 2.8% 8.9 3.9 SY 03/04 43.7% 16.9% 19.8% 3.6% 17.9% 2.5% 18.9% 1.7% 0.9 1.9 SY

16

Percentage point loss is here calculated by comparing grade 6 to grade 8 proficiency percentages.

19

Table 3 MSA Reading % Proficient and Advanced 5th grade

6th grade

7th grade

8th grade

Percentage point loss in middle school Spec. All Spec Ed. Ed. 17.5% 16.6 19.7

All All All Spec. Spec. Spec. Ed. Ed. Ed. 07/08 75.7% 54.9% 65.6% 37.2% 62% 29.7% 49% SY 06/07 60.3% 37.3% 53.6% 24.9% 43% 13.6% 43.8% 13.8% SY 05/06 58.6% 34.5% 43.5% 15.2% 46.4% 14.6% 39.4% 8.5% SY 04/05 57.6% 29.7% 45.7% 14.5% 39.6% 10.8% 40% 7.5% SY 03/04 49.9% 22.6% 43.5% 11.7% 44.2% 8.1% 42.6% 5.4% SY All

9.8

11.1

4.1

6.7

5.7

7.0

0.9

6.3

As a whole, the Special Master finds that the BCPSS record of improvement in student achievement at the elementary grade level at this juncture is strong, substantial, and sustained and, therefore, must be considered a highly relevant element in assessing substantial compliance with outstanding Outcomes, and in particular, Outcomes 8 and 9. By comparison, the record of improved achievement in the middle school grades and high schools (discussed in Section C. below), while notable, is more tenuous and insubstantial in terms of absolute percentages of proficiency achieved by students with disabilities. The challenges to implement change in secondary schools are compounded by the high concentration of students with disabilities in certain middle and high schools.17 For these reasons, the Special Master has considered but not given significant 17

Ten out of forty secondary schools (excluding charter, contract, and other special schools) have special education enrollments above 25% of the total school enrollment.

20

weight to achievement increases in the secondary grade levels in assessing substantial compliance. C.

High School Assessments and Bridge Plans

High School Assessments (“HSAs”) include tests in Algebra, Biology, Government and English. The graduating class in 2009 will be in the first class which must pass state high school testing requirements as a condition for diploma graduation in Maryland. Students entering high school in 2005 or thereafter must pass all four high school assessment tests to be eligible for diploma graduation.18 Alternatively, students must meet “Bridge Plan” requirements established by MSDE in the past year as a supplemental route for students to satisfy state graduation requirements. A student who has not passed an HSA test after two attempts is eligible for participation in the Bridge Plan if s/he had participated in an academic remediation assistance program; passed the relevant HSA-related subject course; and is making satisfactory progress toward graduation. Once a student is deemed eligible by the local school system, he/she must complete one or more projects as determined by the student’s highest HSA score in a specific content area. The Bridge Plan consists of a series of challenging projects linked to the Core Learning Goals tested by each HSA. A faculty monitor is assigned to oversee the student’s work. A review panel established by the local school reviews the student project submission(s) and provides a recommendation to the local superintendent who must provide the ultimate approval of the student’s project for each HSA core subject matter Bridge Plan.

18

A student also may pass the HSAs by earning a combined total of 1602 points across the four exams. This option allows students to offset lower performance scores on one test with higher performance scores on another.

21

Historically, students with disabilities have scored poorly on the Maryland curriculum based High School Assessments. As with the MSAs the percentage of students in the BCPSS achieving passing scores on the HSAs is significantly lower than the statewide average. In addition, the proportion of special education students receiving passing scores has been particularly tiny both in absolute terms and in relation to the scores of regular education students. Through the end of the 2007/08 SY, BCPSS and MSDE reported HSA test score pass rates as a percentage reflecting the number of students who passed a specific test divided by the number of total test attempts by students enrolled (by state, district, subgroup, etc., depending on the unit of analysis). While BCPSS has continued to maintain and make this data available (as discussed below), MSDE has significantly changed its HSA data reporting methodology. MSDE now reports pass rates based on the total number of students passing each HSA (or cumulatively) divided by a denominator consisting of the number of students who took the test. In MSDE’s new HSA data reporting, a student who took an algebra test four times before passing would be counted in the denominator only one time as opposed to four times. Additionally, HSA pass rates are now separately reported for 10th and 11th grade students. This change in MSDE’s mode of HSA reporting was made in order to address the change in testing practices that occurred as HSA passage became a condition of graduation for the class of 2009 (entering high school in 2005). Many students took the same tests multiple times in order to the pass the tests and many school systems did not track the pass/fail rates of “first time tester,” a frequently used testing measure.

22

The new MSDE reporting methodology yields higher reported HSA pass rates. While the new MSD data is valid, it is simply not comparable to the pass rate formula or HSA data available for prior years and therefore does not provide a useable standard for assessing progress in its first year of use. For this reason, the Special Master presents below the state of BCPSS’ progress on HSA assessments based on the original version of HSA pass/rate reporting methodology.19 No statewide data is reported for the 2007/08 SY due to the comparability problems referenced above. Table 3

SE Algebra

RE Algebra SE English RE English SE Biology RE Biology SE Government RE Government

2004

2005

2006

2007

2008

BCPSS

1.9

1.2

4.6

5.1

6.6

MD

19

16.3

27.2

28.6

BCPSS

34.7

24.7

41.4

32.9

MD

63

58

71

67.7

BCPSS

2

2.1

6.7

MD

15.8

15.8

29.1

BCPSS

38.8

41.9

53.7

MD

61.9

64.9

75.3

BCPSS

3.3

1.2

6.6

6.2

MD

22.7

18.9

28.3

33.3

BCPSS

40.9

31.8

52

45

MD

65.1

61.6

71.7

74.1

BCPSS

6.8

4.6

8

11.2

MD

25.4

25.2

34.8

35.2

BCPSS

55

45.3

59.1

58.4

MD

70.5

70.8

78.2

77.8

32.2 5.1 37.4 8.4 45.1

16.0

52.9

As Table 3 reflects, BCPSS’ pass rates for students with disabilities under the original pass rate formula slightly improved in algebra and biology, reflected a somewhat 19

The data presented is based on data cited in the Special Master’s 2006/07 SY Outcome 8 Report and in BCPSS’ February 2009 Annual Report to the State Board of Education.

23

larger jump in government, and decreased slightly in English. However, the Special Master notes that the actual number of students with disabilities passing each subject matter test somewhat increased. (See Exhibit 2) (By comparison, the overall 2008 HSA pass rate under the “new” MSDE formula for 10th graders was 22.8% and 15.7% for 11th graders who had taken all four tests.) BCPSS data on the HSA and Bridge Plan Outcomes of students with disabilities and regular education students entering high school in 2005 provide another view of the status of progress on assessments to date. This data (as of February 5, 2009) reflects that a total of 11.7% of students with disabilities have passed all four assessments or met the combined score requirements and that 55.7% (351) of students with disabilities in this cohort have passed no HSAs. Five students (.8%) as of February 5, 2009 had met HSA requirements through completion of all required Bridge projects. By comparison, 65% of regular education students in this 2005 cohort have passed all four assessments or met the combined score requirements and 12.9% (562) of regular education students have passed no HSAs. Thirty-eight students (.9%) have met all HSA requirements through completion of Bridge projects. (See, Exhibit 2). The Special Master notes that Bridge Project data at this juncture is incomplete. Students are mid-year in the process of working on projects in different subject matters. Bridge project acceptance rates on individual subject matter areas for students with disabilities range from a high of 93% in Algebra to a low of 53% in Government. (See, Exhibit 2) In summary, while the BCPSS high school assessment data reflects a continuing measure of overall improvement that warrants recognition, the scope of improvement

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remains extremely incremental and at low level in terms of absolute percentages of proficiency achieved by students with disabilities.

V.

Charter and Contract Schools Until this past year, almost no special education monitoring was conducted by

MSDE or BCPSS of charter and contract schools’ delivery of special education and compliance with Consent Decree Outcomes. These schools were new and in many ways, off the radar, at least with respect to oversight of special education delivery. While some charter schools demonstrated extraordinary success in inclusive programming and special education delivery, BCPSS monitoring data for charter schools in the 2007/08 SY revealed substantial basic compliance issues in a range of schools that impacted rudimentary delivery of special education services. The Special Master recognizes that new schools face a distinct array of issues as they organize themselves to provide services and also rely on coordination with BPCSS - coordination which frequently can be impeded by bureaucratic lines of division. The Special Master has also observed, however, that these schools generally do not enroll complex or severely disabled students and, therefore, should be more easily positioned to handle compliance and service delivery. Indeed, some of these schools, similar to some of the new middle and high schools now being launched by BCPSS, effectively refuse to modify their programs to accommodate special education students in anything but a straight general education program.20 These are all issues of concern that prompt the Special Master to find that charter and contract schools’ should be retained within the 20

In some instances the charter schools, as well as some BCPSS schools, change students’ LRE placements to conform to the programs offered by the school rather than meeting the students’ individualized needs as required by IDEA.

25

Court’s jurisdiction relative to the pending Outcomes until monitoring this school year confirms whether significant improvement has occurred in their handling of fundamental compliance standards set forth under IDEA and the Ultimate Measurable Outcomes.

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OUTCOME 3: Within three years, the City Schools will increase the rate of school completion from 50.0% to 57.2% as measured by exit data reported to MSDE. OUTCOME 4: Within three years BCPSS will increase its graduation rate (students receiving diplomas) for students with disabilities from 32% to 41.6% as measured by exit data reported to MSDE. Compliance Standard: Substantial compliance Status Reported by BCPSS: Partial compliance for Outcome 3; Substantial Compliance for Outcome 4 Special Master’s Findings: Partial compliance for both Outcomes 3 and 4

I.

Overview The BCPSS has made a measure of progress toward meeting Outcomes 3 and 4 but has

not met the actual target numeric goals for school completion and graduation identified in the Outcomes. Therefore, this Report examines the scope of sustained progress BCPSS has achieved in moving toward achievement of the Consent Decree’s numeric goals as well as in addressing critical areas that impact student graduation and school completion. These areas are recognized as predicates to improvement in graduation and school-completion, as identified in the Implementation Plan(s) adopted via Consent Decrees as well as in the school system’s own Master Plan. They include: improved student attendance; reduced truancy; provision of effective transition services; provision of meaningful school choice to retain students’ interest in continued enrollment; expanding and strengthening students’ with disabilities access to the curriculum; improving special education students’ capacities to pass HSAs/MSAs; and implementation of effective high school reform intervention processes that target and address the needs of students with disabilities who are at risk of failure or dropping-out. The Report touches on a limited number of the most salient areas.

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II.

Graduation and School Completion Data: A.

Outcome Related Data

The BCPSS reports in its Compliance Statement, based on preliminary data, the school completion rate for students with disabilities in the 07/08 SY was 46.5 %, and the graduation rate for students with disabilities was 35.9%. These rates are improvements over the graduation rate (34%) and school completion rate (43.2%) BCPSS reported in the 06/07 SY, though clearly not the 5% gain projected as a goal per IP Objective 4.1.1.2 The general trend is positive over the past four years, though not completely consistent. Graduation and school completion rates for students with disabilities declined between the 04/05 and 05/06 school years; improved significantly between the 05/06 and 06/07 school years; and then just slightly improved between the 06/07 and 07/08 school years. See, generally: BCPSS Compliance Statement, Table 1 on p. 22.3 The MSDE annual EMCIR exit audit reviews graduation and school completion rates, among other special education components, by reviewing school based documents for all special education students ages 14 through 21 leaving the school system during the school year. As reported in MSDE EMCIR Report Volume X, the BCPSS percentage of students with disabilities who exited the school system in the 2007/08 SY with a diploma increased to 24.2% from the

1 No system wide evidence was presented with respect to the benchmark evidence standard for Implementation Plan Section 4.1 -- evidence of a 5% increase in the number of students with disabilities enrolled in required credit courses who meet graduation requirements. 2 The 2000 Consent Order uses a formula for calculation of graduation and school completion rates that differs somewhat from the graduation reporting method used by the state for purposes of reporting under the No Child Left Behind Act of 2001. Data therefore are reported using the original Consent Decree formula, to ensure comparability between the Outcome measures and reported data. BCPSS’ graduation rate for students with disabilities for the 2007/08 SY, using the state formula, is 38.85%. (EMCIR Vol. X Report, p. 17). 3 BCPSS’ exit data had not been finalized with MSDE when the Compliance Statement was submitted. The MSDE EMCIR Exit Audit reflects slightly different final data for BCPSS’ report to the state, including 410 students exiting with diplomas, 110 with Certificates, 9 who had reached the age of 21, and 569 who had dropped out.

28

2005/06 school year rate of 17.5%. By comparison, the statewide percentage of students with disabilities exiting with a diploma in 2007/08 was 36.5%, up slightly from the 2005/06 rate of 35%. The BCPSS reported to MSDE that 33.5% of students with disabilities exiting during the 2008/09 SY left schools as dropouts. This represents a 9.1% decrease from the 2005/06 SY. By comparison, the percentage of dropouts reported as exiting statewide dropped from 16.4% in 2005/06 to 15.3% in 2007/08. This exit data as a whole paints a picture of clearly improved BCPSS exit outcomes both in absolute and relative terms. Yet, the annual exit data also depicts the grim reality that significantly more BCPSS students with disabilities dropped out last year, as in preceding years, than the number and percentage who graduated with a diploma.4 BCPSS reported data for overall outcomes for the class that entered high school in 2005 is consistent with this data. BCPSS data indicates that 49.7% of the 1,428 students with disabilities who entered high school in 2005 remain actively enrolled this school year, while 26.9% have dropped out. By comparison, 62% of regular education students entering high school in 2005 remain actively enrolled and 16% have dropped out.5 B.

(See, Exhibit 2)

Accuracy of Data

BCPSS graduation, school completion, and exit data continue to manifest inconsistency and reliability issues, as indicated by annual MSDE EMCIR exit audits. The MSDE has found inaccuracies in BCPSS’ reported graduation and school completion data each time it has reviewed the BCPSS documentation. EMCIR Volume X found that 433 of 1648 (26%) of the student exit codes reported by BCPSS for the 2007/08 SY could not be verified based upon 4 If the percentage of students graduating with a certificate is added to the percentage graduating with a diploma, the percentage of students with disabilities who exited in the 2007/08 SY by “completing “ school with some form of degree/certificate would still only reach 30.7%. That said, the Special Master recognizes that dropouts may come from a broader spectrum of classes than students deemed to have met the requirements for graduation or a certificate of school completion. 5 Other students exited as a result of transfer, graduation, and other circumstances.

29

documentation provided.6 Although this verification rate indicates a weakness in the reliability in BCPSS’ reporting of student exit outcomes, it marks a slight improvement from the two preceding years when more records were unavailable7 and 29% of the student exit outcomes could not be verified by available documentation. An improvement in the reliability of exit reporting is an essential ingredient to the school district’s ability to report with confidence and complete credibility continued improvement in its graduation and completion rates. C.

The Impact of HSAs on Graduation Rates

As discussed in the Introduction (Section IV.C.), successful passage of required High School Assessments (“HSA”) in core subject areas became a condition for graduation for the entering class of 2005. Historically, BCPSS students with disabilities have had extremely low pass rates.8 The newly approved alternative HSA portfolio route for passage of HSA requirements provides a crucial alternative to formal testing for students with disabilities. Clear trend lines relative to special education students’ pass rates on the Bridge Plan projects at this early point are inclusive. However, the improvement of schools’ capacity to deliver effective, intensive support to students with disabilities in preparation for the HSAs or to successfully implement the alternative portfolio process will clearly play a critical role in future graduation data and the school district’s progress toward achievement of Outcomes 3 and 4.

6 Thirty-one of 1648 student records requested were not available in the 2007/08 SY. When this data is added to non-verified exit code data, MSDE was unable to verify exit codes for 464 (27.4%) of the 1,693 students who exited special education in the 07/08 SY. 7 Ninety-five student records were not available during the 2006/07 SY audit and 267 were unavailable in the 2005/06 SYaudit. 8 See, Introduction, Section IV.C. herein and Special Master’s Report on Achievement of Ultimate Measurable Outcomes 8 and 9 in the 2006-2007 School Year, at pp. 67-69.

30

III.

Institutional Mechanism to Support Improved Graduation and School Completion Rates A.

Attendance and Truancy

The BCPSS identifies in its summary Compliance Statement some notable improvements, including the re-establishment of a working attendance and truancy office, an increase in the attendance rate for students with disabilities at 14 of the 20 middle and high schools with the highest truancy rates, and finally, an overall increase in attendance rates. No data has been presented that establishes BCPSS improved its attendance rate for SWD by 5% or effected a 5% decrease in its habitually truant SWD in secondary schools. (IP Provision and Benchmark, 4.2) The Special Master has had significant difficulty in obtaining consistent disaggregated district attendance and truancy data, making assessment of these data more difficult than it should be. For instance, The BCPSS Compliance Report states special education students had a district–wide attendance rate of 86.9% for the 08/09 school year. By comparison, an Information Technology Department report (Absenteeism at all Schools) provided to the Special Master for the 07/08 SY through June 13, 2008 indicates that 37.8% of students with disabilities were absent more than 15 days during the year. While the ITD report is distinguishable from the overall BCPSS attendance report and based on different parameters, it highlights the significant truancy issues which fall at the heart of graduation/school completion issues. Focused attendance data analysis gives a fuller picture of the scope of the issue, as briefly discussed below. According to MSDE’s EMCIR Vol. X report, attendance rates for BCPSS students with disabilities in the 2007/08 SY were 92.8% in elementary schools, 87.1% in middle schools, and 76.69% in high schools. The documents attached to the BCPSS Compliance Statement at Tab 19

31

show minimal improvements in overall attendance from the 04/05 SY through the 07/08 SY, though a solid 5.8 percentage point increase in overall middle school attendance was shown in the 2007/08 SY. The documents reveal that 43.5% of all high school students were absent more than 20 days in the 06/07 SY, and 42.1% were absent more than 20 days in the 2007/08 SY The MSDE Report Card for 2006/07 indicates the disparate special education composition of this secondary truancy data: 57.8% of the district’s special education high school students and 40.6% of the regular high school education students were absent for more than twenty days. Similarly, in middle school grades, 43.9% of the special educations students were absent 20 or more days in 2006/07, while 31.5% of regular education students were absent 20 days or more. Accordingly, while the progress BCPSS cites in 14 of the 20 school schools with the poorest truancy data is commendable, it must be sustained and expanded to establish that this is not a minimal and incidental improvement. The Special Master concurs with the Central Office end-of year IP report’s identification of the following barriers to improvement in attendance rates: • • • • • • •

Schools are not consistently utilizing attendance referral processes Inaccuracy in data entry and analysis Schools are not disaggregating students with disability data from general education data Lack of communication between teachers and attendance monitors regarding students who do not attend schools Lack of integration of services between schools, the community and the Office of Attendance and Truancy Inconsistency in SST meetings and interventions for attendance Schools are not consistently following the 3,5,10 day attendance procedures.

As noted in the Introduction, the new leadership of the BCPSS Office of Student Support Services this year is at very least aggressively tackling many of these issues.

32

B.

Effective Local School Intervention Processes Secondary schools, in the past eight years, have been highly uneven in their

implementation of effective intervention processes to support students with disabilities in mastering and passing critical challenges associated with graduation and school completion. Schools have not been prepared to deliver effective, intensive interventions with respect to (1) High School Assessment requirements; (2) tackling student chronic truancy; and 3) students’ successful preparation for post-secondary school transition outcomes. The implementation of closely linked academic and behavior reform plans tied to individualized student intervention practices, as identified in the Implementation Plan, remain highly challenging for many secondary schools. The Central Office end-of-year report noted that some high schools had not taken any systematic actions to address HSA failures and needed interventions. (Per the report, some schools “did not address notification, interventions and/or results” and as a result, principals were “notified to correct oversight.”) Additionally, the report noted the need for principals “to communicate with the IEP team and classroom teachers the progress of SWD” and to make “[C]lear timelines outlining target dates of actions.” While some schools as of June 2008 had made measurable progress in their reform efforts, most high school level special education students are concentrated in larger secondary schools with poor achievement and school completion outcomes, and it is these schools that do not appear to be making notable progress in their reform efforts. As Dr. Alonso’s leadership team recognizes, theses schools will require major support, focus, restructuring, and capable leadership in the years ahead.

33

C.

Transition Planning

Significant improvement has occurred in actual completion of transition plans as a required portion of IEPs for age-eligible SWD. MSDE’s EMCIR Vol. X report documents continuing improvements in BCPSS’ procedural compliance in handling IEP meetings since 2007, with individual elements reviewed ranging from 74.63% to 96.32%, in compliance. However, as acknowledged in the Central Office end-of year report, continued work with school staff to individualize transition plans must be done to make transition planning a meaningful and effective process for assisting students with disabilities in securing positive educational, career and life outcomes.

Recommendations

IV. 1.

Consistent with the Implementation Plan for the 2008-2009 SY approved by

Consent Order [Paper No. 1743], the Court should retain jurisdiction over Outcomes 3 and 4 until such time as substantial compliance can be established as determined by further Order of this Court. To establish substantial compliance at the conclusion of the 2008/09 SY or thereafter, BCPSS should demonstrate with reliable data further substantive progress toward achievement of the numeric goals of the Outcomes and/or effective progress in implementation of a significant number of the salient initiatives and data benchmarks identified in the paragraphs #2-#8 below: 2.

Continued improvement in the graduation and school completion rates for

students with disabilities in the 2008/09 SY. 3.

Continued and more clearly established evidence of improvement in truancy and

attendance rates of students with disabilities in secondary schools. 34

4.

Implementation of effective secondary school reform models in the 2008/09 SY

that address on a proactive, data driven basis, the academic and behavioral needs of students with disabilities in at least some of the secondary schools educating substantial concentrations of special education students in addition to the smaller pilot/innovation schools. 5.

BCPSS’ report of implementation of initiatives and their impact should be

specific and data driven. When problems are identified, actions taken to address the problems should also be reported with specificity and related disaggregated data. 6.

Significant improvement in the accuracy of student exit code data results for

graduation, school completion, dropouts, transfers, etc., as reflected in the next EMCIR exit audit as well as OSEMC exit audits. MSDE’s Corrective Action Plan requires a 95% standard of accuracy; however, even a 90% rate of accuracy for the 2008/09 SY would reflect significant improvement and increased credibility in the exit and graduation/school completion data. 7.

The Attendance and Truancy Office should continue its work in supporting school

improvements in attendance and truancy. Efforts need to be directed at establishing clear, concise data that provide accurate, disaggregated information regarding attendance and the related reform measures. All data sources should have compatible information. Differences between or among data bases should be minimal at worst. Initiatives should be specifically identified; their impact assessed using both baseline and end of year disaggregated data; and appropriate interventions planned and followed through based on data generated and reported. 8.

Improvement in the development and delivery of individualized transition plans:

The BCPSS self-assessment and monitoring process should address not only the existence of the required documentation but also its individualized content to assure that transition plans

35

substantively meet the intent of the IDEA transition requirements and have the potential of assisting students in successfully achieving post-secondary outcomes.

36

ULTIMATE MEASURABLE OUTCOME 7: BCPSS will assure that all students suspended more than ten cumulative days, those suspended more than ten consecutive days, and those expelled were done so in accordance with IDEA. BCPSS will monitor and intervene where necessary in all such cases. Compliance Standard: Substantial compliance Status Reported by BCPSS: Substantial compliance Special Master’s Findings: (1) (2)

Elementary Schools and Elementary Programs in K-8 schools, subject to specific exceptions for identified schools, as identified in Recommendations herein and final verification at the conclusion of the 2008/09 SY: Substantial Compliance All secondary and other schools: Partial compliance.

I.

Overview In its Compliance Statement, the BCPSS indicates it has achieved substantial

compliance with Outcome 7 based on SETS data reflecting substantially improved rates of compliance in BCPSS’ conducting manifestation meetings and completing Functional Behavior Assessments (FBAs) and Behavior Intervention Plans (BIPs) for students with disabilities removed more than 10 consecutive days1 in a school year. The SETS data indicate that 89.4% of the disciplinary removal processes for these students met all three requirements in the 2007/08 SY. The BCPSS notes this is the highest level of compliance in the last three years.2 The Special Master recognizes and commends BCPSS for its improvement in compliance with IDEA requirements for students with disabilities removed for more than 10

1 The BCPSS has never provided data on students removed for more than 10 cumulative days in a school year and does not do so in its Compliance Statement. 2 The combined compliance rate reported by BCPSS was 75.7% in 2006/07 and 83.4% in 2005/06. The 2007/08 rate of 89.4% was lower than the reported rate of 92.5% for the 2004 - 2005 SY.

37

consecutive days,3 particularly in the timely completion of manifestation meetings and the creation of FBAs and BIPs. That said, the specific annual report relied upon in BCPSS’ annual compliance report relative to overall procedural compliance is based solely on long term consecutive day suspensions and does not report on cumulative suspensions in excess of 10 days.4 As indicated in her memoranda communications for the last several years, the Special Master’s first and foremost compliance concern remains BCPSS’ handling of removals of students for more than 10 cumulative days. The Special Master’s monitoring5 indicates that schools continued in the 07/08 SY to conduct un-official short term removals without recording these in SETS. This practice precludes effective tracking and compliance with IDEA’s requirements relative to the exclusion of students for more than ten cumulative days. While this practice was not pervasive throughout all schools within the district, its continuation, particularly in secondary schools with high concentrations of students with disabilities, erodes a basic protection of this Outcome and related IDEA disciplinary provisions for students with disabilities. The Special Master concurs with Plaintiffs’ concerns regarding the substantive quality of BCPSS’ handling of these IDEA protections and processes that impact on students’ actual capacity to remain in school and effectively receive FAPE. However, in her view, qualitative performance issues fall outside the scope of this Outcome except where execution of legally required procedures is sufficiently flawed as to render “compliance” meaningless, e.g., an effective nullity or, in other words, the action taken is plainly legally 3 See generally, 20 U.S.C. §1415(k); 34 CFR §300.530 – 300.536, with respect to .IDEA’s treatment of requirements for student discipline, removals, and change of placements in connection with discipline. 4 As of the end of the 2007/08 SY, BCPSS’ data system did not generate a comparable compliance report which encompassed cumulative suspensions in excess of 10 days. BCPSS has filed a revised Compliance Statement for Outcome7 that reflects the data reported does not include cumulative suspensions. 5 The Special Master also relies on the results of OSEMC and MSDE monitoring in connection with the findings set forth here.

38

invalid.6 The Special Master notes though that SETS data does not by itself define whether a disciplinary removal was handled in conformity with IDEA legal requirements, as specified by the Outcome. Instead, SETS reflects that documentation of certain legally required events or measures exists – whether or not this documentation itself indicates that that requisite processes were handled in conformity with IDEA. As discussed further below, while OSEMC and MSDE and the Special Master’s own monitoring indicate improvement in the BCPSS’ handling of some of IDEA requirements for disciplinary removals, significant deficiencies continue to be identified that are inconsistent with a finding of substantial compliance on a system wide basis at this time.7 However, the issues identified here affect students in the secondary grades far more extensively than in the elementary grades, both because of the improved educational functionality of elementary grade programs in recent years8 and because of the differences in the challenges involved in 6 The Plaintiffs express disagreement with this standard. Outcome 7 was framed to ensure compliance with the procedural discipline requirements under IDEA. Some of these requirements clearly do have substantive dimensions – for instance, legally required functional behavior assessment or manifestation determination procedures are not just mere hoops to be jumped through but require the performance of substantive assessment and review processes. The challenge in evaluating compliance, then, is to measure procedural compliance on a systemic basis while not ignoring the potential for school personnel solely to go through an empty procedural ritual without delivering the core substantive protection or benefit legally required by the statutory discipline provisions. The “effective nullity” standard, as articulated above, provides a bright line standard in a systemic case evaluation context for assessing whether a substantive requirement under IDEA’s discipline provision has been violated, even though, for instance, a manifestation meeting or functional behavior assessment was facially conducted. 7 Plaintiffs express the need to know the extent to which the deficiencies that impact secondary schools exist in elementary schools. It is important to note, in this regard, that the behavior management problems and related discipline issues found at secondary schools are significantly less likely to arise at smaller elementary schools, where students are not typically in the throes of adolescence. Secondary schools tend to be larger and their students, due to their older ages, more independent than elementary age students. As a result, elementary students are rarely found wandering the halls and embarking on trouble in the process. The problem of chronic “hall walkers” and related hall sweeps that result in students being removed without following appropriate disciplinary problems thus are not elementary school problems. Other age related behavior and discipline issues also tend not to occur at the elementary level. Thus the behavior issues and related discipline process deficiencies evident in secondary schools simply do not present the same degree of challenge for elementary schools, particularly when they achieve a modest level of functionality as many elementary schools have begun to do in Baltimore. 8 Plaintiffs’ Reply to the draft report indicates they agree with this statement to the extent it is a reference to MSA scores and request clarification if it refers to something else. The Special Master’s comment is directed at

39

management and education of students with disabilities in the secondary grades.9 Accordingly, the Special Master concludes that it is appropriate to release most, but not all, of the elementary grade programs in both elementary and K-8 schools10 from Outcome 7 and consider such schools “inactive” for purposes of monitoring under the Consent Decree, pending completion of results of an additional MSDE EMCIR discipline audit. The Special Master has identified the following elementary programs as requiring continued monitoring and, therefore, still in “active” status under the Consent Order: 11:

the overall improvement in elementary programs evidenced in her visits to schools as well as through MSA scores and other objective indicators. Students in the elementary grades show better attendance, greater involvement in their classrooms, far lower rates of disciplinary incidents, and higher academic achievement than students in middle and high schools. 9 Plaintiffs’ Reply questions the relevancy of this statement, particularly in light of the lack of reference to this as a criterion in the Consent Order. The Special Master notes in this connection that the Consent Order includes three factors to address substantial compliance: 1) Progress toward the Outcome; 2) Assessment of effectiveness of institutional mechanisms for meeting and maintaining the Outcome; and 3) Student achievement. An evaluation of effectiveness of institutional mechanisms per force requires an assessment of the orderly functioning of school and their capacity to address relevant student needs. It is well established that the number of suspensions and length of student suspensions increases dramatically once students enter the secondary grades. The Special Master’s reference to the differences in the challenges experienced at the elementary as opposed to the secondary level recognizes that elementary level schools, with some notable exceptions identified here, have shown improvements in record keeping, implementation of proactive school wide behavioral programs and efforts to address the needs of students in school as opposed to removing them. It is, therefore, appropriate to consider the differences in the challenges presented at the elementary and secondary levels as well as schools’ responses to these challenges when determining substantial compliance. 10 The term “elementary programs” is used here to encompass elementary schools and the elementary grades within K-8 Schools, but not the middle grades (6-8) within K-8 schools. 11 As provided by her draft report, the Special Master has reviewed the parties’ recommendations regarding the particular schools and elementary grade programs to be retained under Outcome 7 for monitoring in the 2008 – 2009 school year (and potentially thereafter). She has additionally reviewed supplemental data furnished by BCPSS reflecting the scope of disciplinary actions taken in elementary vs. secondary grade programs and associated “data cleansing” reports that flag problems or inconsistencies in discipline data and compliance. Her recommendations are based on review of these recommendations and data as well as prior school visits by the Special Master’s Office, MSDE, and OSEMC. Twenty-one of the 109 non charter BCPSS elementary grade programs (including the Edison Schools) and 13 of the 19 charter school elementary programs (not including the Edison Schools) are recommended to be retained for active monitoring. The remainder will be deemed “inactive” under the Consent Decree, pending the Special Master’s review of a follow-up EMCIR audit and issuance of a report at the end of the year that considers this audit data in conjunction with other available compliance evidence. See, Recommendations section infra.

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BCPSS ELEMENTARY SCHOOL GRADE PROGRAMS TO BE RETAINED AS ACTIVE UNDER THE DECREE: Schools #5, #22, #24, #27, #28, #44, #51, #58, #66, #75, #84, #107, #122, #125, #159, #164, #217, #220, #223, #231 and #314, and CHARTER SCHOOL ELEMENTARY GRADE PROGRAMS TO BE RETAINED: #15, #47, #63, #323, #324, #325, #327, #331, #333, #334, #337, #423 and #432. As with the BCPSS schools, all charter secondary grades are to be retained as “active” under the Decree well as the elementary grades in 4 schools. Of these 4 schools, 3 are K-8 schools (#47, #63 and #327) and one has grades 5 through 8 (#324) so only grade 5 is an elementary grade. The schools whose elementary grades the Special Master has determined should be retained under Outcome 7 for the 08/09 SY display a variety of issues. Some of the schools have had a large number of disciplinary removals as of the beginning of the school year. Others have shown difficulty in accurately maintaining discipline data across data sources or in complying with IDEA discipline requirements. Still others have shown an extraordinary decrease in recorded disciplinary removals which, while positive, reflects such significant change in a short period of time that they bear watching to assure processes and procedures are being followed. Plaintiffs raise many issues regarding the elementary grades’ compliance with IDEA discipline requirements and the methodology used to assess their compliance. The Special Master agrees with Plaintiffs that release of elementary grades from Outcome 7 under the substantial compliance standard should be predicated on a determination as to whether IDEA discipline requirements have been met and that this should be determined in the same manner as this determination is made for secondary schools. Therefore, she will make a final 41

determination with respect to the release of the schools at issues from the Consent Order with the aid of an additional MSDE discipline audit. The MSDE will audit a statistically significant sample of the elementary schools and the elementary grades of the K-8 schools the Special Master has identified for release from monitoring under Outcome 7 in an effort to determine their compliance with IDEA discipline requirements. At each audited school a sample of special education students who experienced disciplinary removals will be audited. The audit will address all relevant IDEA requirements including determining whether elementary grade IEP teams consider all relevant information about behavior, make diligent efforts to reinstate students, assure the provision of FAPE to those removed for more than 10 days in the school year and consistently apply standards relating to FBAs and BIPs as noted by Plaintiffs. The data collection will cover multiple sources and thus allow analysis of consistency and accuracy in reporting. It will also allow analysis of compliance with IDEA discipline requirements for those students who are removed for more than 10 cumulative days in one school year.12 The Plaintiffs also expressed concerns regarding assuring that students not be kept in offices for more than one hour without this being recorded as suspension. The audit will attempt to address this issue as well. As there will be an audit of elementary level schools removed from Outcome 7 prior to their removal being finalized and an assessment of other relevant 2008/09 SY compliance evidence, the Plaintiffs’ concerns will be addressed.13

12 The BCPSS does not currently report on such students, as noted above. 13 Plaintiffs raise questions regarding whether administrators have taken specific actions included in the IP for the 2007/08 and 2008/09 school years for Outcome 7. The Special Master recognizes that requisite IP measures may not have been taken by some elementary schools. These measures were intended to help schools develop institutional processes for assuring compliance with IDEA discipline requirements. The audit of the actual discipline data and folder information will allow MSDE and thus the Special Master to reach conclusions regarding the elementary schools’ actual compliance with IDEA discipline requirements. In the Special

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II.

Manifestation Meetings, Functional Behavior Assessments and Behavior Intervention Plans [OSEMC Audits] As part of its monitoring of BCPSS schools, OSEMC specifically audits compliance

with 24 standards related to discipline compliance. OSEMC’s audit process entails a closer examination of the manifestation determination and related processes than can be gleaned from a review of three of four SETS data items that simply reflect whether a manifestation meeting occurred and whether the required FBA and BIP documents exist. The OSEMC audits attempt to address whether the IDEA requirements are actually met. To assess the scope of the system’s progress, we have reviewed the 2006/07 SY and 2007/08 SY OSEMC results relative to manifestation meetings, functional behavior assessments, and behavior intervention plans below. A.

OSEMC Results

In the 2006/07 SY, twenty-six students in the ten audited schools were reviewed for discipline requirements.14 Of the 10 standards relevant to manifestation meetings, OSEMC found noncompliance rates ranged from 5% (Documentation of parent notification) to 45% (IEP team considered all relevant information about behavior) and 44% (Evidence of diligent effort to reinstate student). 15 The standards relating to FBAs and BIPs were not consistently compliant. Twenty-five percent of required FBAs and 30% of required BIPs were not ordered/conducted/reviewed.

Master’s view, a determination that evidence demonstrates compliance with the requirements of a Consent Decree Outcome supersedes the need to determine whether each and every IP action step was implemented. 14 One elementary school and one K-8 school were included in this group of ten schools. 15 One standard (Immediate reinstatement of student if manifestation found) was found to be 50% noncompliant, but this only involved 2 students. One student was immediately reinstated, and one was not.

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The results of OSEMC audits somewhat improved in the 2007/08 SY. Twenty-eight student folders were reviewed for discipline. Of the 10 standards relevant to manifestation meetings, OSEMC found 100% compliance rates for three standards (Referral to IEP team if suspension is greater than 10 cumulative or consecutive days; immediate reinstatement of student if manifestation found; and pattern of exclusion/change in placement discussed for series of removals exceeding 10 days). The highest rate of noncompliance was 39% (IEP team considered all relevant information about behavior). The Special Master notes in this connection that her review of the IEP forms completed during manifestation meetings similarly suggests that teams take an abbreviated, proscriptive approach to reviewing students’ programs and placements during disciplinary removals rather than reviewing all relevant information in making a manifestation determination, as required under IDEA. The Special Master’s Office’s interviews and record reviews reveal, for example, that Child Study Teams only consider the student’s primary disability as relevant in making a manifestation determination and often restrict this analysis to whether a disciplinary infraction was causally connected to a primary disability of emotional disturbance. This is clearly legally incorrect. Moreover, manifestation determinations are also intended to address whether a student’s IEP has provided him/her a FAPE. In that connection, the Special Master’s Office notes that students’ secondary disabilities frequently are not addressed in IEPs and may be relevant to discipline and behavior issues.16 OSEMC’s findings regarding the standards related to FBAs and BIPs in the 2007/08 SY demonstrated substantially lower compliance rates than in the 2006/07 SY. Forty-four

16 The Special Master will receive more detailed information on the elementary teams’ review of this information when making manifestation determinations after the MSDE EMCIR disciplinary audits are complete.

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percent of required FBAs and 39% of required BIPs were not ordered/ conducted/reviewed. For BIPs developed as a result of a suspension, 47% did not address the behavior subject to the disciplinary action, and if a BIP had been developed prior to the targeted suspension, there was no evidence that 88% had been implemented. B.

MSDE Audits

2006/07 MSDE AUDIT The EMCIR VII audit of the BCPSS during the 06/07 SY included an audit of 130 student discipline records.17 This audit included review of three sources of discipline information: 1) SASI reports; 2) SETS reports; and 3) students’ discipline folders. Eightyfive (85) students or 65.38% of the discipline audit sample were removed from one to ten days, and forty-five (45) students or 34.62% of the discipline audit sample were removed from school for more than 10 days. These are much higher percentages of removal than are reported in the BCPSS SETS during the 06/07 SY. The MSDE found 63.85% of the data reviewed for consistency of information regarding the dates of student removals for disciplinary interventions were unreliable. The MSDE found only 56.15% of the discipline folders maintained by school staff contained complete information; 43.85% were incomplete or there was no discipline folder at all. Suspension dates were consistent in 36.15% of the student records sampled. The MSDE further found compliance with mandated discipline procedures ranged from 50% to 86.96%, depending on the procedure.

17 The MSDE audits several aspects of the BCPSS special education program at the same time. Discipline is one of five components (discipline, least restrictive environment, transition, grants management, and corrective action progress) audited and reported on at the same time. A total of 454 student records were reviewed. The 130 students with disciplinary events constituted 28.63% of the original sample. A breakout of elementary and secondary students was not reported.

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For the 45 students who had disciplinary removals of more than 10 cumulative or consecutive days, MSDE found BCPSS complied with the disciplinary requirements18 for 15 of the students (33.33%). For the remaining 30 (66.67%) students, BCPSS failed to comply with the discipline procedures for at least one of the criteria. The MSDE found compliance rates ranging from a high of 87.9% (Inclusion of positive behavioral strategies in IEPs) to a low of 50% (revision of IEP when manifestation is found). 2007/08 MSDE AUDIT The MSDE’s discipline review in the 07/08 SY found eighty-seven students19 (19.1% of the original sample) were removed from school for disciplinary reasons during this school year. Seventy-two students or 82.67% of the discipline audit sample were removed from one to ten days of school, and 15 students or 17.24% of the discipline audit sample were removed from school for more than 10 days. This represents 3.29% of the original sample. In the discipline review conducted in 2007, the 45 students who were found to have been removed from their educational setting in excess of 10 school days constituted 9.91% of the sample. The proportion of students in the samples who had been removed from their educational settings in excess of 10 days decreased by 66.90%. The reason for this sharp decrease in the samples is not clear, given the relatively stable proportion of students subject to long term disciplinary removals in the last three years (5.1%-5.4% per BCPSS data).20

18 MSDE reviews 12 standards for removals of more than 10 consecutive or cumulative days in a school year. 19 Six of these students’ discipline records were not available so analysis was completed on 81 records. Again, a breakout of elementary and secondary students was not reported. 20 In its data presentation for the 2007/08 SY, the BCPSS has demonstrated a decrease in the number of students proposed for long term removals or expulsions. These numbers have decreased steadily since the 03/04 SY. However, the population of special education students also has decreased in the same time frame. Thus, the percentage of special education students proposed for long term removal or expulsion since the 05/06 SY has shown a relatively slight 0.3 point decrease, from 5.4% to 5.1%. That said, the Special Master recognizes the importance of Superintendent’s Alonso’s initiative in this past school year to reduce the number

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The MSDE again found that information regarding suspension dates was inconsistent over the three sources of discipline information reviewed. The data indicate that the information was consistent across the three sources in 42, or 48.28%, of the 87 records reviewed. While this is an improvement over the consistency rate of 36.15% found in the prior school year it remains a very low rate. Consistency across all three sources was found for only 45, or 51.72%, of the records reviewed. Of the 15 students removed for more than 10 days, MSDE found ten were provided with special education services on the 11th day of removal. This is a compliance rate of 66.67%, the lowest level of compliance within the disciplinary procedures reviewed by the MSDE. The Special Master recognizes, however, that the sample size, for whatever reason, was very small and therefore, the findings here are not reliably generalizable. Plaintiffs have noted that in selecting a sample to audit several aspects of the BCPSS special education program at one time, the MSDE did not chose a student sample reflecting disciplinary actions across the district. Rather, the MSDE’s past EMCIR audits selected a sample intended to provide information on implementation of students’ required programs and services in the least restrictive environment and then used this sample to audit discipline. To ensure that its discipline sampling method will more likely generate evidence and conclusions regarding discipline practices in the school system as a whole, the MSDE has agreed to provide separate discipline audits as part of its monitoring of the BCPSS.

of long term suspensions through his directive that all schools submit suspensions of more than five days to the Office of Suspension Services (“OSS”).

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III.

School Based Documentation / Reporting Issues Short Term Suspension, Cumulative Suspensions in Excess of 10 Days, and Accuracy of Reporting As would be expected in a district the size of BCPSS, much of the data used to assess

individual school’s compliance with disciplinary legal and procedural requirements is dependent on accurate self-reporting by school staff. Many administrators perceive the self-reporting requirements as placing them in an untenable position. Not only does reporting of disciplinary incidents tend to reflect badly on the school, it has the potential of resulting in the school’s identification as “persistently dangerous” pursuant to NCLB. In contrast, the failure to report disciplinary removals on a complete and accurate basis creates a lack of accountability and potential non-compliance with IDEA relative to individual students. It also impacts schools’ and providers’ ability to preemptively address patterns of student disciplinary removal and their underlying causes. The Special Master has previously documented a long history of concerns regarding schools’ undocumented removals of students, and, in particular, repetitive undocumented short term removals have been a problem within the district. This underreporting has been a particular problem at the secondary school level where many administrators, in an effort to maintain order perform “hall sweeps” sending students found roaming the corridors home. Neither high school nor middle school administrators tend to enter such removals in either the SASI or SETS data base. In addition to hall sweeps, sources of undocumented removals include: ●

Administrators’ failure to record discipline data when they become

overwhelmed with their responsibilities; ●

Maintaining removed students in offices for large parts of a day without 48

documenting the removal because the student remained in the school building; ●

Calling parents to report misbehavior of their child and then not reporting the

child as removed because the parent states s/he will take the child home; ●

The use of “Do Not Admit Lists,” or documents of a different name, to

remove students outside the authorized discipline process; and •

Administrators’ modification of suspension letters, conditioning students’

return from suspensions on parental in-person attendance at meetings with school staff and thereby effectively potentially extending suspensions to an unknown future date.21 For instance, Area 5 end-of-year IP status report indicated, that “Encounter tracker report for 10/31 indicated that students in 11 of 22 schools did not receive services because they were suspended from school but were not suspended in SETS.” (Area 5 Report 7.4.1; same finding reported as of November 30, 2007.) 22 For Area 7 high schools, the end of year report indicated that 4 of 14 high schools did not properly document student removals and check for consistency of SASI/SETS data on removals. The Area 7 report also indicated that of the 28 student folders the Area Office reviewed, 7 were non-compliant with various IDEA legal requirements relative to student removals. (Area 7 Report, 7.2.1 and 7.3.1) The Special Master recognizes that professional development was provided thereafter to school staff in light of these findings. However, given the entrenched nature of the problems relating 21 Some schools schedule meetings with parents after the start of the school day on the day the student is to return. This suggests that the student cannot return to class until this meeting is held. Suspensions are thereby extended for additional time without being recorded in any data source. 22 In the past, it often was possible to determine when a student had been removed for disciplinary reasons and not so identified in SETS or SASI, by reviewing related service provider notes. Unfortunately, in the middle of the 07/08 school year, related service providers were directed not to document such removals without verifying them with an administrator. Administrators were unlikely to verify their non-conforming removal of students so this source of identifying undocumented removals was eliminated despite the Implementation Plan’s recognition of its helpfulness (See, e.g., IP Provision 7.2.4)

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to recording of short term suspensions (that can cumulatively exceed 10 days), the Special Master looks to see more reliable evidence of the handling and recording of short term suspensions this coming school year. There are also on-going discipline data problems that impact compliance with legal requirements under IDEA that may be addressed by the implementation of the new Student Management System data system (“SMS”) in the 08/09 SY. For instance, students removed from school often do not return on their assigned dates. Return date information is not reliable, as it is not automatically fed into the discipline system from the attendance data system. Additionally, there is little documentation showing that schools exercise “diligent efforts” to get these students to return to school. Students who do not return from suspensions, either long term or short term, are noted as absent rather than suspended even when a school’s action or inaction may have contributed to the student’s non-attendance. Thus it is difficult, if not impossible, to determine the precise scope of student removals and related denials of FAPE.23 As the MSDE noted in its EMCIR reports, the three sources of information about disciplinary removals often do not provide identical information. As a result it can be difficult to track students from the start of their removals until their return to their assigned

23 Other data related issues associated with school or system practices include: • Many schools do not record partial days of removal, despite BCPSS policy requirements. Some administrative personnel continue to show lack of awareness that any removal from the student’s regular school program for more than one hour is to be counted as a removal. This includes, among others, time sitting in the office waiting to see the administrator . • Problems still exist in notifying parents of the date of removal, date of assignment to AES, and date of return to BCPSS placement. The data bases rely on the dates of letters for these purposes and do not account for the time it takes for the parent to actually receive the letter. The Deputy Special Master has found in reviewing other processes that the dates of letters are, on some occasions, not the date of mailing, let alone the date of receipt. • In school suspensions are not consistently counted as days of removal, and schools do not consistently comply with the BCPSS limits on the use of in-school suspension.

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BCPSS school placements.24 When the new general student information and attendance system (after the conclusion of the 08/09 SY) is implemented, the Special Master hopes that these data integration issues will be successfully addressed and provide a foundation for assuring proactive compliance and student support.

IV.

Provision Of FAPE To Students Removed More Than 10 Days In A School Year Pursuant To IDEA Disciplinary Provisions Under the IDEA all students with disabilities, including those who have been

removed for more than 10 consecutive or cumulative days in a school year, are entitled to a free, appropriate public education (FAPE). Ongoing issues in this regard at BCPSS include: •

With each independent removal, the student is without program and services for some number of days. These days are cumulative throughout the school year, even though each disciplinary event is separate into itself. The IDEA does not allow for 10 days of removal each time a student is proposed for long term suspension or expulsion without the provision of services necessary to allow him/her to progress in the general curriculum and on the goals in his/her IEP. This basic principle is not consistently implemented throughout the school system.

•

Work packets sent home with students removed for disciplinary purposes are not individualized based on their IEPs and the need to provide services to allow them

24 The BCPSS agreed to provide attendance in AES placements within the SASI attendance reports. A review of the attendance of several students who had been assigned to AES sites in the 07/08 SY indicates that student AES attendance data was not consistently available or accurate. In some instances, even when the AES unit has accurately entered attendance data, the students’ originating schools overwrote the data, marking students who were suspended as absent, thereby substituting incorrect data for correct data.

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to progress in the general curriculum. For some students work packets cannot provide the supports necessary to allow them to access or benefit from instruction. •

Students on long term removals with inclusive general education LRE A or B placements are frequently referred to AES sites that are separate, special education facilities. At manifestation meetings students’ IEPs are not revised, as required by the IDEA, to reflect their changes in placements to more restrictive settings.25 The BCPSS has indicated that child study teams are unable to correctly identify the placement because they do not know to which AES the student will be assigned. The Special Master recognizes the validity of this point given the structure of the BCPSS’ AES process but notes the BCPSS has not initiated any strategy to address these particular placement inconsistencies.

•

A process to assure that those students who have interruptions in service as a result of disciplinary removals of greater than 10 days in the school year needs to be developed. This is particularly problematic for those students who are subject to repeated removals and are not placed in alternative programs because of the intermittent short duration of their removals. As a result, these students miss their educational and related services on an intermittent basis that cumulatively exceeds ten days, and there is no process to assure these services are made up.

25 From a substantive service delivery perspective, the Special Master notes that the process for students’ return to the regular school setting often further compounds the educational challenges posed for students removed through the disciplinary process. Students are frequently returned from AES settings to public school settings that are quite different from the AES. While teams are now more frequently meeting to prepare for a student’s return, the school teams are not often in a position to provide a different program or services than the student was receiving prior to his/her removal or one that addresses the student’s needs. Moreover, the amount of information the child study team has available varies greatly. Some AES sites make efforts to provide information about specific program and service needs to the BCPSS school when the student returns to a BCPSS setting while others provide only summary information. Often the information provided does not appear to be forwarded to the relevant child study team responsible for management of students’ IEPS.

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IV.

Recommendations: Measures and Evidence That Will Move BCPSS Toward Substantial Compliance 1.

As now agreed upon by BCPSS with plaintiffs, the BCPSS will engage a

consultant to provide intensive initial and on-going comprehensive professional development and technical assistance regarding the development and implementation of FBAs and BIPs. Stage I of this training shall be for key central office staff responsible for the development of FBAs and BIPs. Once the central office staff have been trained and determined by the consultant to be proficient in the development of FBAs and BIPs, they will become trainers for school-based staff regarding the development and implementation of FBAs and BIPs ("FBA/BIP trainers"). Stage II of the training shall be for school-based and itinerant staff that is responsible for the development and implementation of FBAs and BIPs. The FBA/BIP trainers will provide intensive initial and ongoing professional development and technical assistance to school-based staff and itinerant staff regarding the development and implementation of FBAs and BIPs. By February 20, 2009, the parties shall agree on a schedule for the implementation of Stages I and II. The consultant also will provide support and monitoring, including supervision of Stage II training, to determine the on-going needs of the FBA/BIP trainers and school-based and itinerant staff. The parties shall hold a regularly scheduled conference call with the consultant to allow MSDE and plaintiffs' counsel to ask questions about the project. 2.

The MSDE, using standard sampling procedures, will continue to audit

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BCPSS schools, including “inactive” schools26 as agreed.27 The audit will include both desk audit and on-site audit components. If evidence collected in the MSDE audit indicates a significant scope or degree of non-compliance by a school or schools designated as inactive, the MSDE shall provide all relevant documentation to the Special Master who will share the information with the parties. The BCPSS shall have the opportunity to provide the Special Master and the parties data or other information that such school or schools are not significantly out of compliance. The plaintiffs shall have the opportunity to provide comments to the Special Master and the parties regarding the data and information provided by BCPSS to the Special Master. The Special Master shall determine whether the school or schools should continue to be on the inactive list, using the audit evidence and other relevant evidence available regarding the schools at issue as the evidentiary basis of her determination. 3.

Subject to the limitations identified herein, the Special Master recommends to

the Court that all elementary grade programs in both elementary and K-8 public schools28 (with the exception of those specific schools identified by the Special Master in paragraphs

26 As noted in this Report’s Overview section the parties disagree as to whether the Consent Decree authorizes a determination of substantial compliance for a subset of schools and release of this subset of schools from a Consent Decree Outcome based on this determination. Plaintiffs contend that the Decree solely authorizes the Special Master and Court to make a determination with respect to district wide achievement of substantial compliance for any given Outcome and release of schools from the Decree based on such a systemic finding. The parties also disagree as to whether sufficient evidence exists to support a substantial compliance finding for Outcome 7 with respect to elementary schools. However, for purposes of moving forward and in an effort to minimize costly litigation, the parties have agreed that specific schools under Outcome 7 at this time may be deemed inactive and potentially released from the Consent Order, consistent with the terms identified herein. 27 The sample will not include schools where there is no record of students with disabilities having been disciplined since August 25, 2008. 28 As noted earlier herein, the term elementary programs is used here to encompass elementary schools and the elementary grades within K-8 Schools (regular as well as charter public schools), but not the middle grades (6-8) within K-8 schools.

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3.a. and b. below) be deemed inactive under Outcome 7 of the Consent Decree, pending the audit and Special Master’s review described in Paragraph #7 above. a.

The following non-charter elementary grade schools shall continue to be

actively monitored under Outcome 7: #5, #22, #24, #27, #28, #44, #51, #58, #66, #75, #84, #107, #122, #125, #159, #164, #217, #220, #223, #231 and #314. b.

The following charter elementary grade schools shall continue to be actively

monitored under Outcome 7: #15, #47, #63, #323, #324, #325, #327, #331, #333, #334, #337, #423 and #432. c.

In addition, all middle school (6 -8) and high school (9 – 12) grade programs

in the district will remain active and subject to the provisions of Outcome 7 under the Consent Order. In the event the Special Master determines that the MSDE audit and other evidence verifies her initial determination that “inactive” schools have achieved substantial compliance with Outcome 7, their full release from the Outcome should be recommended and approved. 4.

Subject to the provisions of Paragraphs #2 and 3 above and consistent with the

Implementation Plan for the 2008-2009 SY approved by Consent Order [Paper No. 1743], the Court should retain jurisdiction over Outcome 7 until such time as substantial compliance can be established as determined by further Order of this Court. 5.

To assist BCPSS in focusing its remedial efforts relative to Outcomes 7, the

Special Master outlines below the salient initiatives and factors that affect her assessment of substantial compliance:

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a.

Continued improvement in demonstrating across school levels a

consistent level of compliance with IDEA mandates for disciplinary removal of students with disabilities, including, among other requirements, accurately counting days of removal, providing required programs and services, and determining when the removal results in a change in placement. b.

Reliable data tracking of short term removals and, resultant cumulative

removals exceeding 10 days should be maintained and IDEA required meetings and determinations made. c.

All disciplinary events should be accurately documented. Data bases

and student records should contain close to identical information.29 Sources of information outside of standard discipline documentation should be reviewed and discrepancies investigated and clearly explained. d

Consistent monitoring and, when required, intervention in school

disciplinary practices to assure compliance with IDEA, COMAR and court mandates. Reports on these efforts should be specific and provide follow-up information. e.

Under Dr. Alonso’s leadership, BCPSS has become invested in and

directed toward systemic, intensive efforts to improve school climate and the reduction of suspensions and expulsions. These efforts will only begin to be implemented on a full system-wide basis this year. These are important institutional developments that deserve recognition, if substantially implemented. The implementation and impact of these efforts should be specifically documented and

29 Until the new integrated data system is introduced, the Special Master recognizes that it is not likely that BCPSS will be able to maintain 100% consistent information.

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assessed by BCPSS in the coming year so that they can properly be evaluated as a strong “institutional mechanism” supporting achievement of Outcome 7.

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OUTCOME 8: Within three years 58.8% of students with disabilities will receive IEP required services in regular education and/or combined programs (resource room). OUTCOME 9: Within three years, at least 80% of newly identified1 students with disabilities will receive IEP required services in the school they would attend if they were not disabled. Compliance Standard: Substantial Compliance BCPSS Compliance Statement: Substantial Compliance Special Master=S Findings: (1)

(2) (3)

I.

Elementary Schools (elementary schools, excluding K-8 schools): Substantial Compliance, subject to final verification at the conclusion of the 2008/09 school year. Secondary Schools and K-8 Schools: Partial compliance. Charter Schools: Finding deferred until conclusion of 2008/09, except with respect to charter schools #8, #332, #328, and #63 which shall be treated in the same manner as BCPSS elementary schools identified in (1) above.

Overview Under the Individuals with Disabilities Education Act, each child with a disability

is to receive a free, appropriate public education (a FAPE) in the least restrictive environment (LRE) appropriate for delivery of the particular student’s educational program and services.2 Outcomes 8 and 9 incorporate this basic legal principle and contain both a quantitative and a substantive requirement – expansion of the percentage of students educated in the Least Restrictive Environment and actual delivery of students’ IEP required services, goals, objectives and accommodations in the placement identified by the LRE. The Special Master concludes that BCPSS elementary schools3 have continued to demonstrate tangible progress in educating students with disabilities, 1 The term “newly identified” means students who have been newly identified in the 2000/01 SY and thereafter. 2 See, 20 U.S.C. §1412 (5) (B) and the Department of Education’s implementation regulations at 34 CFR §§300.550-300.556. 3 “Elementary schools” as used here solely encompasses K-5 schools, and does not include K-8 schools.

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consistent with the substantive requirements of Outcomes 8 and 9.4 The strong, sustained forward progression in BCPSS operated elementary schools’ system-wide performance results for students with disabilities in combination with other evidence of elementary schools’ improved delivery of educational services to students with disabilities establishes “substantial compliance” with the Consent Decree’s requirement for these Outcomes, subject to final verification at the conclusion of this school year. By contrast, the fundamental IEP service delivery concerns identified by the Court’s Order of February 7, 2008 (Docket # 1717)(approving the Special Master’s 2007 Outcome 8/9 Report) remain outstanding relative to the implementation of Outcomes 8 and 9 in secondary grades.5 Evidence from the 2007/08 SY continues to demonstrate an unacceptable and inconsistent, level of implementation of IEP required services, goals, objectives and accommodations when these students are included in general education classes. Cf., Order of February 7, 2008, p. 5. Although the CEO has launched an impressive range of reform initiatives this year, the Special Master finds that it is simply too early to assess whether these initiatives will establish the “ongoing, integrated institutional process or school improvement programs that can be relied upon as realistic engines of change to meet the substantive IEP service delivery component of Outcomes 8 and 9.” (Id., at 4-5, quoting Special Master’s 2007 Outcome 8/9 Report at p.79) The Special Master recognizes the moderate trend in test score improvement for students with disabilities in grades 6-12 discussed in

4 See discussion of achievement in the General Introduction. 5 The Court’s Order of February 7, 2008 directed the Defendants to initiate a program of systemic intervention, leadership development, and targeted support for secondary schools relative to delivery of IEP services to special education students in their LREs and appropriate program scheduling. The District’s plan for accomplishing these objectives began to be implemented in its most initial stages in the summer of 2008.

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the Introduction, though the performance outcomes and graduation outcomes for secondary students with disabilities remain objectively very limited. In the context of the totality of evidence indicative of significant IEP service delivery issues, the level of academic achievement and improvement for students with disabilities in grades 6-12 remains insufficient to support a finding of substantial compliance. While K-8 Schools do not share all of the challenges faced by middle and high schools, the K-8 model presents its own distinct staffing challenges. Many of these schools are newly merged elementary and middle schools. When funds, special education staffing, and/or skilled principal leadership are limited, K-8 schools’ broad spread of grades impact the schools’ capacities to support IEP service delivery for special education students included in the general education environment. Under these circumstances, the fact that there are elementary grades within these combined grade schools does not by itself lead the Special Master to conclude that a substantial compliance finding is authorized at this point with respect to the elementary section of the K-8 schools. The Special Master notes promising trends in K-8 schools with respect to IEP service delivery in the least restrictive environment and to student achievement. In the 2008-09 SY, the Special Master will devote further resources to determining whether K-8 schools, either BCPSS’ or charters, are indeed at this juncture meeting the substantive IEP delivery standard of Outcomes 8 and 9. Finally, scant monitoring data from prior years is available with respect to charter schools. Due to the small number of such schools and their small special education populations until recently, charters schools have not been included in MSDE’s EMCIR audits or BCPSS’ own audits. In the absence of this data or other independent data

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gleaned from independent observations at the schools, the Special Master must defer making a finding as to charter schools’ status of compliance with Outcomes 8 and 9 until monitoring for the 2008/09 SY is complete,6 except with respect to the four specific elementary schools that the Special Master’s Office has visited or regarding which she has obtained independent review information.7

II.

Evidentiary Findings A.

Systemic Issues

Since 2004/05, the Special Master’s Office has focused on monitoring Outcomes 8 and 9 through three principal means: (1) conducting school visits in which school personnel are interviewed, relevant documentation is reviewed, and classes are observed; (2) ongoing review of the work of central office staff responsible for support of inclusion efforts at the local school level; and (3) verification of the EMCIR monitoring of LRE issues and expansion of MSDE’s monitoring through more in-depth reviews of identified students’ receipt of their special education services in the least restrictive environment identified by their IEPS. Additionally, the Special Master has reviewed the method and scope of professional development delivered to school staff in support of inclusive instructional programming and delivery; leadership accountability for effective implementation of inclusive programming and measures under the Implementation Plan

6 MSDE audits will include charter schools this year. The Special Master’s Office also is conducting visits and reviews at a variety of charter schools this school year. 7 While the Special Master has received positive initial information regarding a number of K-8 charter schools, her office has not validated and visited a sample of these schools as of this date – nor has MSDE. For this reason, she is treating these schools in the same way as she has treated BCPSS K-8 schools, deferring any recommendation for release until monitoring is complete for this school year.

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approved by the Court for the 2007/08 SY; and students’ progress on standardized achievement tests; The Special Master finds that the most significant systemic impediments to delivery of IEP services in the least restrictive environment include: •

Many school administrators are not adequately equipped or focused on

providing teachers informed and engaged leadership and coaching for the purpose of developing the teachers’ capacities to deliver IEP required services as part of differentiated, effective instruction in inclusive, general education settings. Teachers, in turn, require substantial job embedded professional development and support to effectuate effective, inclusive, instructional practices at the secondary grade levels. •

A significant number of central office and school leaders misunderstand

the focus of Outcomes 8 and 9 and related IDEA LRE requirements. This is reflected, for instance, in presentations and Implementation Plan documentation indicating their perception that their sole or primary obligation with respect to these requirements is simply to place a certain percentage of students in general education settings without regard to whether actual IEP required services are delivered to included students. •

On a systemic basis, significant deficiencies exist in the investment of

needed resources and staff to support delivery of special education services to students in more inclusive placements: (a) The special education staffing formula is not structured to support the investment of resources in students placed in general education classrooms. (b) IEP teams routinely fail to include indirect

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service hours (or alternatively, anything but the tiniest fraction of indirect hours) in student IEPs to assure that special education and related service time is properly furnished to support regular educators’ delivery of IEP required services in the general education classroom. The Special Master has repeatedly raised these issues in reports and memoranda since 2001. Finally, even when indirect service hours are included in the IEP, staff often provided these hours on a “catch as catch can” basis,8 rather than as a reliable part of the collaborative instructional relationships that Dr. Alonso is now striving to assist school communities in building. 9 •

Although IEP teams have improved in the execution of IEPs that meet

narrow legal compliance standards, the biggest challenge ahead is for teams to master the development of individualized programs that provide a pragmatic and educationally sound roadmap to staff responsible for implementation of students’ inclusive placements. The use of the Maryland On-Line IEP is a tool that should help the teams develop IEP goals that are both individualized and aligned with the state’s Voluntary State Curriculum (“VSC”). This program can be particularly effective because it includes access to “Wizards” that allow users to adopt goals

8 In the ten schools OSEMC audited (selected in part due to performance concerns) in the 2007/08 SY, OSEMC was not able to find sufficient documentation to verify staff collaboration and delivery of indirect service hours for 47% of the students examined. 9 The Special Master notes that special and regular educators’ collaboration in planning to meet the needs of students during common planning time has always been considered critical but pragmatically difficult to achieve within BCPSS, because of the absence of common planning periods and union contract restrictions. Dr. Alonso was instrumental in securing through arbitration and his own personal participation in that arbitration the expansion of common planning time. When this issue was previously arbitrated in or about 2001, BCPSS did not even present evidence available through the Special Master’s Reports and the Court’s Orders regarding the essential need for common planning time for collaborative work between special and regular educators. Dr. Alonso’s leadership regarding this issue represents an enormous sea change.

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that are aligned with the VSC as well as that are scaffolded to account for achievement levels. •

Close coordination between the IEP team and regular education

administrative staff is required to ensure that secondary level special education students’ class schedules are consistent with their IEPs. BCPSS made substantial efforts to provide scheduling training to leadership staff this past summer and at the beginning of the 08/09 SY. There are plans for further training in the second semester in preparation for the 2009/10 SY scheduling requirements. At this early juncture, the success of this training cannot be assessed. Without schedules congruent with students’ IEPs, schools are unable to deploy staff to meet the instructional needs of students in all placements and particularly in general education settings, and as a result, are unable to deliver students’ individualized special education programs mandated by their IEPs. The need for general education teachers to receive support from special education teachers to assure special education students in these general education settings cannot be emphasized enough. •

The central and area offices, historically, have not trained, coordinated,

and deployed their instructional intervention staff to full capacity to work as skilled partners with schools in tackling the significant challenges involved in effective delivery of inclusive practices. Although the 2007/08 SY Implementation Plan included provisions for close coordination between area and

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school instructional leadership with the central office inclusion staff for purposes of “learning walks” and instructional follow-up, this virtually did not occur.10 B.

Monitoring and Audit Evidence of Delivery of IEP Services in LRE 1.

MSDE/EMCIR LRE AUDIT

MSDE’s EMCIR IX (2008) LRE audit of actual delivery of IEP services in the classroom is consistent with the above summary findings. In the 2007/08 SY audit, MSDE’s professional consultants observed the majority of the 74 students in its sample in general education classrooms, consistent with the Special Master’s prior recommendations. Data was collected over a three-hour period in multiple classes for each student. In contrast, in the 2006/07 SY, observations were conducted, generally, for a one hour period, and a majority of students were observed in self-contained classes or resource rooms.11 Table 1, below, compares the data from the 07/8 SY to findings from the review conducted in the preceding year. The summary audit findings relate to several foundation elements for providing students essential IEP programs and services in general education classrooms or in selfcontained settings. The data is straight forward and highlights deficiencies as well as some strengths:

10 Inclusion specialists participated in a total of 16 “learning walks” with area and school leadership in the 2007/08 SY. Three of these “walks” occurred in the first semester. Eight of the 16 schools visited were in Area 1 (elementary/ K-8 schools); 3 of the schools visited were in Area 2 (elementary and K-8); 1 of the schools was in Area 3 (elementary and K-8); 1 school was visited in the Middle School Area; 2 schools were visited in the High School Areas and 1 school was visited in Area 9 (elementary/K-8/middle school). 11 72.8% of the observations conducted in 2008 were conducted in general education classes as compared to 37.84% in the preceding year. The 2008 stratified sample also included more students served in LRE A. This new approach to auditing LRE will be continued in the 08/09 SY.

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TABLE 1: CLASSROOM SUPPORTS IDENTIFIED AND DELIVERED Charter Middle Schools

K-8 Schools

High Schools

Schools

Classroom

2007

2008

2007

2008

2007

2008

2008

Supports

Percent

Percent

Percent

Percent

Percent

Percent

Percent

Observed

Observed

Observed

Observed

Observed

Observed

Observed12

91.67%

60.47%

47.06%

66.04%

71.43%

63.51%

38.10%

33.33%

18.60%

52.94%

43.40%

33.33%

29.73%

19.05%

75.00%

67.44%

76.47%

64.15%

66.67%

67.57%

61.90%

70.83%

72.09%

70.59%

81.13%

61.90%

81.08%

71.43%

100.00%

83.72%

100.00%

79.25%

85.71%

86.49%

85.71%

Lesson plan available Lesson reflects goals and accommodations Teacher maintains a copy of the IEP Instructional materials appropriate Use of appropriate curriculum

MSDE observers also reviewed whether students’ LREs on their IEPs corresponded with their class schedules, confirming that as of the 2007/08 SY, this lack of congruence remained a problem affecting appropriate delivery of students’ IEPs.

12 MSDE did not conduct any observations in charter schools in the 2006/07 SY.

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TABLE 2: MATCH OF STUDENT LRE AND CLASS SCHEDULE Charter Middle Schools

K-8 Schools

High Schools

Schools

2007

2008

2007

2008

2007

2008

2008

LRE

Percent

Percent

Percent

Percent

Percent

Percent

Percent

Code

Matching

Matching

Matching

Matching

Matching

Matching

Matching

A

100.00%

80.00%

100.00%

100.00%

100.00%

94.12%

100.00%

B

33.33%

50.00%

75.00%

33.33%

83.33%

60.00%

50.00%

C

91.67%

100.00%

90.00%

100.00%

75.00%

66.67%

NA

Finally, MSDE reviewed indirect services and supplementary aids, services, program modifications, and supports. Twenty-four of the 74 students observed (32% in total) included indirect instruction (e.g., consultation with a special educator) as a supplementary service. Fifteen students’ IEPs did not include any specified supplementary aids, services, program modifications or services and 8 students’ IEPs included indirect services as the only supplementary service.” (EMCIR Report IX, p. 46) As a whole, “MSDE observers found that a very low number of students were provided with adjusted workloads and modified materials. In general, observers noted that instruction was delivered to whole groups with the same instructional materials provided to all students and the same tasks were expected of all students.” (EMCIR Report IX, p. 47) These MSDE observation findings were generally consistent with the observation findings made by the educational consultants that the Special Master retained to conduct

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day-long observations of a sub-set of the MSDE sample pool of students. 2.

Special Master LRE Findings

The Special Master’s review of EMCIR monitoring of LRE indicates that some identified areas of concern have improved and others have shown little progress. The greatest impediments to IEP service delivery have been identified in the secondary schools. During the 2007 B 2008 school year, the Special Master=s Office continued to monitor the BCPSS= compliance with the Ultimate Measurable Outcome 8 requirement that 58.8% of students with disabilities receive IEP required services in regular education and/or combined programs (resource room). This monitoring focused on the substantive component of the Outcome as BCPSS continued to meet the numerical standard on a district wide basis.13 The BCPSS has established processes to assure that students are housed in more inclusive environments, in particular, least restrictive environments A and B. Yet in many cases, these placements have not provided the programs and services required by students’ individualized education programs (AIEPs@). From April 2, 2008 through May 22, 2008, six professional educator observers working with the Special Master’s Office visited twenty-three of the schools audited by the MSDE including four elementary schools; five elementary/ middle schools; four middle schools; and ten high schools including one Charter high school. They observed 25 students at these schools;14 nine in elementary grades, six in middle grades and ten in

13 There were notable exceptions at particular schools. 14 Many of the students were the same students observed by the MSDE. However, as in past audits, it was not possible to observe the identical group of students as observed by MSDE due to absenteeism and scheduling conflicts. In each instance that a different student had to be observed, the observer observed one of the alternative students identified by MSDE, and if this was not possible they observed a student with the same LRE as the student originally identified for the audit at that particular school.

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high school grades. a.

Of the 25 students observed by the Special Master’s observers, 16 (64%)

were in LRE A; 6 (24%) were in LRE B; and 3 (12%) were in LRE C. Three students’ LREs did not appear to match their programs. See discussion, below. The percentages of students observed in LRE A and B were similar in the MSDE study and in the Special Master’s study. See, Table 1. The LRE distribution of students is similar to but not quite identical with the LRE demographics of school system’s overall special education population. Table 1

LRE Setting A (in general education 80% or more) B (in general education 40% - 79%) C (in general education less than 40%)

b.

Number of Students BCPSS LRE% as of Spec. MSDE 6/30/07 Master 48.3% 39 16 17.0% 19 6 29.0% 16 3

Percentage Spec. MSDE Master 52.70% 64% 25.68% 24% 21.62% 12%

The Special Master’s observers were experienced educators with

advanced academic degrees who were trained to observe individual students in their classrooms15 and review all available, relevant documentation, including, among others, lesson plans and grade books, IEP service records and homework, in order to determine whether students were receiving the accommodations, modifications, and instruction/services related to IEP goals required by their individual IEPs. These school visits took anywhere from one-half to one school day,

15 Observations for students who changed classes included more than one classroom. Related service providers also were observed where appropriate.

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depending upon the complexity of the students’ IEPs. The observers used a rubric to assist them in determining the level of evidence available to indicate that the students’ IEP required services were being delivered. Under this rubric, observers could find that there was strong evidence (score of 4), moderate evidence (score of 3), little evidence (score of 2), or no evidence (score of 1) of delivery of the IEP service, goal, accommodation, or modification. The moderate level score of 3 conformed to an observer’s finding of an adequate or basic level of activity, including perhaps core elements, but did not require the demonstration of high levels of consistency or comprehensiveness in the service delivery. Scores of 3 or 4 are evidence of the provision of the particular program or service while scores of 1 or 2 indicate that the program or service was not adequately provided. This rating and evaluation methodology is consistent with the methodology developed by the Maryland Higher Education Consortium (MHEC) for earlier studies performed on behalf of the Special Master and Court in the years 2001-03. c.

The evaluation focused on what, if any, evidence confirmed the

delivery of the individualized related services, special education instruction, accommodations, and modifications that the school district agreed to deliver, through the development of IEPs, in order to provide each student with a FAPE, as required by the IDEA. d.

Elementary grade students 1.

Nine students were observed in elementary grades in 8

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schools, including 4 students who attended 4 different elementary/middle schools. (They attended elementary schools # 31, 144,16 206, and 219. The elementary/middle schools were # 45, 205, 210, and 215.) Five students were in LRE A placements; two were in LRE B, and 2 were in LRE C. However, two of these nine elementary students had IEPs with LREs that did not reflect their actual programs. One elementary student’s IEP indicated the student was in an LRE B placement. However, the classes designated as general education included 20 special education students and 3 general education students.17 Another elementary student whose IEP indicated the student was in an LRE A placement was in classes that were composed of 75% special education students, and the observer indicated they appeared to be special education classes.18 2.

These nine students had 23 academic goals19 on their IEPs:

10 in Language Arts/Reading, 7 in Math and 6 in Writing. The observers found that 20 of the 23 goals (86.9%) were being adequately addressed earning scores of 3 or 4. One student had 16 Two students were observed in this school. 17 The Special Master is concerned that classes that are almost 87% special education students are designated as general education classes. This is particularly of issue when viewed in the context that the District has accepted and adopted the Court specified standard for generally limiting the percentage of special education students in regular education classes to 20%. As noted in earlier reports filed by the Special Master, the use of regular education classes composed of significantly higher percentages of students with disabilities impairs teachers’ capacity to deliver IEP services or regular instruction. (However, one exception to this is when co-teaching is appropriately implemented by trained teachers in reasonably sized classes.) Additionally, classes with high percentages of students with disabilities (e.g., as referenced 87%) do not fulfill the actual LRE goal of providing a “general education” class and instruction. 18 See Fn 15, Supra. 19 Three students had no academic goals as they were speech students.

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three goals (one each in reading, math and writing) that were not being adequately addressed earning scores of 1 or 2. Only four of the nine students had related service goals, for a total of 5 related service goals. Three received speech. One received counseling,20 and one received occupational therapy (“OT”). All of the related service goals were assessed as having been provided at the frequencies identified on the students’ IEPs. The speech and OT related service providers (“RSPs “) were found to have provided the services as required by the goals on the students’ IEPs. The RSP who provided counseling to the student did not provide adequate documentation of service to address the student’s two counseling goals. 3.

The nine IEPs contained 38 accommodations.21 There was

little to no evidence that 7 (18.4%) of these listed accommodations had been implemented. For one student there was little evidence that three of the student’s nine accommodations had been implemented, and for another student there was no evidence that any of the student’s four accommodations had been implemented. e.

Middle Grade Students 1.

Five of the six students in middle school grades were

observed in middle schools (#42, 46, 133, 209, 263). One 20 In this Report counseling refers to goals in the areas of psychology, social work, social emotional, coping skills and counseling unless otherwise identified. 21 Three students IEPs contained no accommodations.

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attended an elementary/middle school (#75). Two of the students were in LRE A placements; three were in LRE B, and one was in LRE C. However, one student’s IEP indicated the student was receiving services in an LRE B placement, but the student’s schedule had been changed to an LRE C schedule without an IEP team meeting. 2.

The six middle grade students had 19 academic goals on

their IEPs: 7 in Language Arts/Reading; 5 in Writing and 7 in Math. The observers found that all of 17 of the 19 goals (89.5%) were being adequately addressed earning scores of 3 or 4. However, for one student this was mere happenstance. The language arts teacher had an out of date IEP, but the instruction provided coincidentally addressed the goals on the then current IEP. The language arts and writing goals for one student had little evidence supporting their implementation. The observer also noted that this student was not doing well in class and the teacher knew his problems were behavioral but no action had been taken to include behavioral goals on the student’s IEP. Four of these six students had nine related service goals. Three had counseling goals, and two, including one of the students with a counseling goal, had behavioral goals. One student had two speech goals, and one student had a physical therapy (“PT”) goal. The observers found four of these nine goals

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(44.4%) had moderate or strong evidence that they had been implemented. The speech and PT goals were assessed as having strong to moderate evidence that services addressing the IEP goals were provided and that all required service hours were completed. One student’s counseling goal was not provided as required and there was little evidence that the service addressed the goal. One student’s behavioral goal was deemed to have no evidence of having been implemented. The observer commented that some required services were not available at the school. Of the three students with transition goals, one had moderate evidence of implementation, one had little evidence and one was not observed. 3.

The six middle grade students’ IEPs contained 25

accommodations. One student had no accommodations. Eighteen of these 25 accommodations (72%) had little or no evidence of implementation, and 4 (16%) additional accommodations were unobserved. This means that only 6 (24%) of the accommodations had moderate or strong evidence of implementation. f.

High School Students 1.

Ten high school students were observed. (They attended

schools # 178, 400, 401, 404, 406, 423, 426, 433, 450, and 454). Nine of the ten students were in LRE A placements, and one was in an LRE B placement.

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2.

These nine students had 32 academic goals on their IEPs:

11 in Language Arts/Reading; 12 in math and 9 in writing. The observers found that 13 of these 32 goals (40.6%) were being adequately addressed earning scores of 3 or 4. Five (15.6%) had little evidence of implementation, and 10 (31.2%) – including all the academic goals on two students’ IEPs -- showed no evidence of implementation. Three math goals were not observed as math was not on two students’ schedules for second semester despite their math goals. The students also had 13 related service goals in the areas of counseling, behavior interventions and transition. Three (23.0%)22 of the related service goals were determined to have been provided at the rates specified on the students’ IEPs. The observers found two counseling and one transition goal (23.0% of the related service goals) showed strong or moderate evidence of having addressed the goal specified on the IEP; one (7.6%) showed little evidence and nine (69.2%) showed no evidence. c.

The ten IEPs contained 56 accommodations.23 There was

little to no evidence that 33 (58.9%) of these listed accommodations had been implemented. Specifically, for the students for whom there was no evidence of implementation of the academic goals there also was no evidence that

22 The observers did not assess the rates of provision of service for six of the thirteen related service goals. 23 One student’s IEP contained no accommodations.

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accommodations had been provided. One accommodation was not observed. Thus only 12 (21.4%) of the accommodations had moderate or strong evidence of implementation. 8.

General Results and Consideration of IEP Service Delivery Data a.

Across all grade levels the Special Master’s observers

found that academic goals were addressed by the classroom teacher 67.6% of the time, whereas academic goals were addressed in elementary classrooms 86.9% of the time. Related service goals across all grade levels were addressed 37.0% of the time. Combining the academic goals and the related service goals, the Special Master’s observers found the students IEP goals were implemented 59.4 % of the time. These system-wide results are lower than the 76.1% rate found by MSDE. This difference may be attributable to a number of factors, including the Special Master’s Office methodology which involved a smaller sample size and class observations of more extended time length.24 b.

Across all grade levels 49 of 119 (41.9%) accommodations

were found to have strong or moderate evidence of delivery. The highest level of compliance was 81.6% for students in elementary grades, a 19.2 point increase over the 62.4% rate found by the Special Master’s observers in the 06/07 SY. The lowest rate (24%) was for middle grade students. By comparison, the MSDE study 24 The Special Master’s observers followed students throughout the day and, therefore, were able to assess the delivery of services in multiple settings and classes rather than in the one to three classes observed in the MSDE study in a three hour period.

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measured accommodation delivery in two pronged manner. While MSDE observers found a higher overall average rate of delivery of accommodations (61.28%) for all combined grade levels, it made a separate finding that only 32.04% of the written lesson plans in observed classes contained students’ IEP accommodations.25 c.

Although there are some numerical discrepancies between

the MSDE results and the Special Master’s results, a review of the overall data supports the Special Master’s conclusion that significant evidence supports a finding that distinguishes elementary from secondary school programs with respect to achievement of the substantive IEP service component of Outcome 8.

The observation data indicates that IEP service delivery within

the general education elementary classroom is occurring at a substantial performance rate, for purposes of assessing Defendants’ achievement of the foundation requirements of Outcome 8, although delivery of accommodations continues to pose challenges in particular schools.26 The Special Master’s and MSDE’s data is similarly consistent in showing critical weaknesses in the delivery of basic IEP components to secondary students who receive services up to 60% of the time in the general education classroom.

25 Once again differences in methodology may explain the different results. 26 The MSDE/EMCIR data does not address the distinctions between elementary grade programs in elementary vs. K-8 classes. The Special Master’s data set for these sub-groups is too small to base a definitive assessment of the differences between IEP delivery in elementary grades in elementary vs. K-8 schools. However, due to the staffing configuration and service delivery issues in K-8 schools that the Special Master has observed over a number of years, she is not prepared to make a finding as to K-8 elementary grade programs until receiving verification data through school observations this year.

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3.

BCPSS LRE Findings

BCPSS’ Office of Low Incidence and Inclusion completed class visits and review of student folders based on regular visits to schools and use of simple checklists. While the BCPSS checklist and MSDE review questions differ in many respects, they cover some of the same core areas. To some extent the BCPSS’ findings parallel the results of the EMCIR IX review with respect to the absence of indirect service hours and higher rates of deficiency in observed differentiation of instruction and delivery of supplementary aids and services and with respect to classroom availability of current IEPs or IEP snapshots. In many other relevant areas, the BCPSS review is markedly far more positive in its findings of appropriate educational practices and legal compliance indicia (e.g., correct LRE identified; provision of accommodations). Perhaps of equal or more significance, the observation ratings of the Office of Low Incidence and Inclusion appear quite critical in comparison to the ratings performed by local school administrators. See Table 3, below. The Implementation Plan required inclusion specialists to review and confer with principals about their first use of these checklist forms as a mechanism of professional development. The Special Master’s review of the individual school submissions for the Implementation Plan indicates that such consultation may in many instances not have occurred or alternatively, have been deferred several months. During her monitoring, the Special Master also learned that principals continued to delegate the responsibility for these observations to other administrative staff. In any event, the results indicate that a large number of school administrators did not view or treat the checklists as tools for meaningful assessment of educational practices generally recognized as relevant to delivery of functional special

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education services and accommodations in the general education classroom. The Special Master recognizes that it is possible that the use of the inclusion checklists as a tool for change is a flawed strategy. That said, the Special Master finds troubling the school administrative staff’s high level of approval of educational practices identified as clearly deficient by BCPSS staff and MSDE consultants. The practices at issue are clearly inconsistent with the basic requirements for delivery of IEP and educational services to students with disabilities in the general education classroom. As Dr. Alonso’s new organizational initiatives recognize, far more intensive work will need to be done at the local school level with administrative and instructional staff development to move past the current status quo. Even with a major turnover in school leadership staff, the reality remains that many principals will at first walk in the shoes of the principals who preceded them, in the absence of a clear alternative pathway. 27

27 The new Director of Special Education has initiated the use of a computerized inclusion checklist in one of many efforts to improve accountability in this area. While the Special Master supports the efforts to improve the efficiency and effectiveness of site based monitoring, the concern that site based administrators are not assessing their schools’ inclusion efforts in a professionally informed and objective manner is not fully addressed by the move to automate the checklist form, even if it includes supplemental professional development suggestions or modules.

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TABLE 3 BCPSS CENTRAL OFFICE AND SCHOOL LEADERSHIP LRE CHECKLIST REVIEW FINDINGS RESULTS OF IEP FOLDER LRE CHECKLIST REVIEWS 07/08 SY Student's appropriate LRE has been identified 2

3

1 yes

no

unknown

Office of Low Incidence and Inclusion

605

10

Other [by school based administrators]

1074

8

Grand Total

1679

18

Total

% Yes

% No

615

98.37%

1.63%

2

1084

99.08%

0.74%

2

1699

98.82%

1.06%

The exact percentage of time the student spends inside the general ed classroom 1

2

Category

yes

no

3 unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

579

35

1

615

94.15%

5.69%

Other

1035

44

5

1084

95.48%

4.06%

Grand Total

1614

79

6

1699

95.00%

4.65%

The identified LRE is consistent with the student's schedule 1

2

Category

yes

no

3 unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

528

83

4

615

85.85%

13.50%

Other

1043

32

9

1084

96.22%

2.95%

Grand Total

1571

115

13

1699

92.47%

6.77%

80

Grand

Both Special and General Educators are listed as service provide 1

2

Grand

Category

yes

no

Office of Low Incidence and Inclusion

572

43

Other

970

105

Grand Total

1542

148

3 unknown

Total

% Yes

% No

615

93.01%

6.99%

9

1084

89.48%

9.69%

9

1699

90.76%

8.71%

Total

% Yes

% No

615

52.68%

47.32%

Indirect service hours, are identified on the IEP 1

2

Grand

Category

yes

no

Office of Low Incidence and Inclusion

324

291

Other

657

421

6

1084

60.61%

38.84%

Grand Total

981

712

6

1699

57.74%

41.91%

3 unknown

RESULTS OF CLASSROOM OBSERVATION CHECKLISTS 07/08 SY Classroom reflects the natural proportion of students with disabilities, not to exceed 20%. 1

2

3

Observer Category

Yes

No

NA

4 Unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

356

53

14

8

431

82.60%

12.30%

Other

1081

68

54

40

1243

86.97%

5.47%

Grand Total

1437

121

68

48

1674

85.84%

7.23%

81

Teacher differentiates instruction to accommodate diverse learner needs. 1

2

3

Observer Category

Yes

No

NA

Office of Low Incidence and Inclusion

276

115

40

Other

1095

103

42

Grand Total

1371

218

82

4 Unknown

Total

% Yes

% No

431

64.04%

26.68%

3

1243

88.09%

8.29%

3

1674

81.90%

13.02%

Teacher provides instructional and/or testing accommodations. 1

2

3

Observer Category

Yes

No

NA

4 Unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

365

54

11

1

431

84.69%

12.53%

Other

1081

46

112

4

1243

86.97%

3.70%

Grand Total

1446

100

123

5

1674

86.38%

5.97%

Teacher provides, Supplementary Aides and Services such as modified workload, crisis intervention, etc. 1

2

3

Observer Category

Yes

No

NA

4 Unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

270

105

52

4

431

62.65%

24.36%

Other

944

114

178

7

1243

75.95%

9.17%

Grand Total

1214

219

230

11

1674

72.52%

13.08%

Teacher has IEP skill identified in their lesson plan or in additional documentation tools such as an IEP Matrix 1

2

3

Observer Category

Yes

No

NA

Office of Low Incidence and Inclusion

211

197

23

Other

1110

102

25

Grand Total

1321

299

48

82

4 Unknown

Total

% Yes

% No

431

48.96%

45.71%

6

1243

89.30%

8.21%

6

1674

78.91%

17.86%

Special and general educators utilize an implementation process for planning/collaborative consultation for indirect services 1

2

3

Observer Category

Yes

No

NA

4 Unknown

Total

% Yes

% No

Office of Low Incidence and Inclusion

200

178

52

1

431

46.40%

41.30%

Other

854

119

266

4

1243

68.70%

9.57%

Grand Total

1054

297

318

5

1674

62.96%

17.74%

III.

Recommendations 1.

The Special Master recommends that the elementary school programs in

K-5 schools operated by BCPSS be treated as having satisfied the requirements of Outcomes 8 and 9 and as therefore inactive under these Outcomes, pending verification of their continued achievement of the Outcomes’ substantive IEP service delivery requirements this school year. Charter Schools #8, #332, #328, and #63 should be similarly treated as inactive under Outcome 8.28 Verification shall be completed by the conclusion of the 2008/09 SY through the same audit process described in paragraph #6(b) below. Due to the additional complications involved in staffing to ensure appropriate delivery of special education services in K-8 schools and the need for additional data to

28 The Special Master’s Office in January and February 2009 confirmed through visits to two K-8 Charter schools ( #8 and #63) that students’ IEP services in the least restrictive environment were clearly provided, and therefore she has included these two schools with the group of elementary schools to be deemed “inactive” and having achieved compliance with Outcome 8, subject to strong contrary evidence from monitoring or audits completed by the conclusion of the 2008/09 school year.

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confirm service delivery in K-8 schools, this recommendation does not encompass elementary grades in K-8 schools. 2.

The Court’s Order of February 7, 2008 required an intensive, instructional

leadership program for secondary principals and other relevant staff in connection with the goal of ensuring the delivery of IEP services to students with disabilities in general education classrooms. It specified that schools with records of unacceptably weak performance should be particularly targeted for intervention and assistance. While the CEO has embraced this approach as part of his larger systemic reform initiatives and plan of professional development, the Court’s remedial Order remains highly relevant, appropriate, and binding. BCPSS plans have changed repeatedly and been, at best, partially implemented since the Order was in issued in February 2008. However, the school system’s new Special Education Officer and Dr. Alonso are currently engaged in robust efforts to revamp and strengthen the system’s professional development and leadership initiatives relating to delivery of special education services. Therefore, while the BCPSS has not yet fulfilled the substantive, programmatic requirements of the Court’s Order of February 7, 2009 Order, the Special Master concludes that it is appropriate to defer making supplemental remedial recommendations as to these issues at this time. That said, the school district must show demonstrable progress in implementation of these leadership and special education professional development initiatives and schools’ active engagement in these activities to establish appropriate evidence of substantial compliance. 3.

Dating back to 2001, the Special Master has recommended in her reports

and through the Evaluations of service delivery conducted with the Maryland Higher

84

Education Consortium, two measures to support IEP delivery in inclusive placements: (1) the significant expansion of schools’ use of indirect services in students’ IEPs; and (2) the restructuring of the special education staffing formula to support inclusive placements. These changes would expand the resources available to properly support the education of special education students in the general education classroom and are consistent with legal and professionally accepted standards. They would manifest a material institutional development that would help to support and sustain achievement of the objectives of this Outcome. 4.

BCPSS should revamp its current inclusion support and intervention

special education team approach to (1) ensure that support staff provide a consistent, high level of quality professional development and coaching and with a full understanding of the background of the issues identified in this and prior Report findings of partial or noncompliance; (2) update the framework of inclusion action planning to make this a viable process for all schools, regardless of whether more than 58.8% of students with disabilities are in general education or combined placements; (3) ensure the maximum deployment of available staff to support, guide, and work directly with school leadership as well as teachers and providers on effective delivery of inclusive instructional practices. 5.

Both the EMCIR and Special Master’s audits identified continuing issues

with respect to the scheduling and placement of a small, but notable, percentage of students in programs that are inconsistent with the students’ IEPs. Although the great majority of students are scheduled and placed in accordance with their IEPs, for those students who are incorrectly placed and, as a result, not provided services as required by their IEPs, the adverse educational consequences can be very significant. The Special

85

Master, therefore, recommends that BCPSS require that schools implement an appropriate internal process for confirming students’ appropriate scheduling and program placement once each semester.29 6.

The Special Master will evaluate whether to make a recommendation for

release of BCPSS from Outcomes 8 and 9 from the Court's jurisdiction after the conclusion of the 2008/09 SY based upon a totality of factors and evidence, including: (a) BCPSS’ demonstration of significant, continued progress in the development and implementation of institutional support processes and appropriate staffing and program and system funding; (b) verification of IEP implementation by the Special Master's conducting an independent audit or verifying MSDE's EMCIR audit of a statistically acceptable sample of students (enrolled in elementary, secondary grades, K-8 and charter schools) that confirms delivery of IEP services, accommodations, goals, modifications, and supplementary services at rates of 85% or higher in each of these school types or levels of schools; (c) continued progress in measures of special education student outcomes on standardized testing, school completion, and graduation; and, (d) progress in implementation of the recommendations contained in this report and the Court’s Order of February 7, 2008. Evidence as to achievement of each of these factors will be relevant but no factor by itself will be controlling. 7.

The Court should continue to exercise jurisdiction over Outcomes 8 and 9,

subject to the express recognition that the range of schools identified in Recommendation paragraph #1, herein, should now be deemed “inactive” under the Outcomes and ready

29 Any changes to a student’s IEP program or services must be made in compliance with IDEA requirements.

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for release, pending the Special Master’s review of supplemental verification audit information collected this school year.

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OUTCOME 11: No more than 2% of students with disabilities will have interruptions in service in any school year as reported by OCS data. Compliance Standard: Substantial compliance Status reported by BCPSS: Not in compliance. Special Master’s findings: Non-compliance I.

Overview The BCPSS and the Special Master concur that the school district is not in

compliance with this Outcome’s requirement that no more than 2% of special education students have an interruption in service. This Report, therefore, primarily focuses on audit and other evidence that directly relate to the implementation of remedial measures that will assist BCPSS in reaching substantial compliance with the Outcome.

II.

Summary of Relevant Evidence A.

MSDE AUDITS

The EMCIR reports addressing Interruptions in Service continue to show a high percentage of interruptions in related services, both direct and indirect. Of the 571 direct services audited, 21.2% had an interruption; of the 19 indirect services audited, 31.6% had an interruption. MSDE’s audit found an overall related services interruption rate of 30.5%. These rates all exceed BCPSS’ reported overall rate of IEP interruptions for the 07/08 SY (4.5%). Further, these high rates of interruptions occur in the context of decreasing numbers of related services found in students’ IEPs, despite the BCPSS’ effort to move toward more inclusive models of education that often require greater direct and indirect related services. When and if related service provision is expanded, and in particular, indirect services, BCPSS will stand at particular risk of a higher rate of interruptions. 88

The MSDE has consistently found a very small percentage of the students they identified as having experienced interruptions in services had been referred to the Office of Compensatory Services as required under the Court’s Orders. This indicates the selfreported interruptions data maintained by the BCPSS (through the 2007/08 SY) was neither complete nor accurate. The school district is working to tackle this problem in the 2008/09 SY through its new intensive system of aggressive staff review of related service providers’ service records in the encounter tracker data base. The efficacy of this approach as a proactive mechanism for curtailing interruptions and, alternatively, ensuring the completeness of interruptions reporting (for compensatory services purposes) will be reviewed at the end of the 2008/09 SY. B.

BCPSS Office Of Special Education Monitoring And Compliance (OSEMC)

OSEMC monitors selected schools throughout the district to determine their compliance with special education requirements and related district policies and procedures. Schools selected for monitoring in recent years frequently have been chosen based upon identified management and special education instructional issues. The OSEMC’s Quality Compliance Annual Reports provide both individual school and summary data from these audits. The cumulative summary of these audits summarizes the related services and instructional interruptions for all audited schools for the school year. It shows erratic interruptions rates from year to year with, for example, 06/07 showing a substantial decrease to 3.9% from the 24.2% direct service interruptions rate of the 05/06 SY. In contrast, the OSEMC found a significant increase in the percentage of indirect consultative special instruction interruptions from 28% to 38.4% in that same time frame. The following school 89

year, the overall interruptions rate across all schools and all related services was 16.5%. The OSEMC also found a significant increase to 47% in the percentage of indirect consultative special instruction interruptions in reviewed cases in the 07/08 SY. In thirty-six percent (36%) of the folders reviewed in the 07/08 SY, OSEMC concluded that there was not evidence to support a finding that all IEP services were provided without interruption. The Special Master notes, though, that OSEMC’s targeted audits typically focus on schools which have exhibited an array of deficiencies in compliance or special education delivery in the past, although not necessarily in the area of interruptions in services. C.

Schedule A1 and the Outcome 11 Interruptions Report

Schedule A reports consistently reveal problems in particular areas of interruptions reporting. Many of the interruptions identified below should appear in both the Schedule A Report and the Outcome 11 Interruptions Report, as they are interruptions in service, and many of them appear in neither. Others should appear in only one report. In either case, many of the interruptions do not appear in either report. D.

Transportation

MSDE Complaint Investigations and BCPSS Transportation Complaint Logs identify numerous students with transportation interruptions. In some of these cases, the documents specify that the student missed other IEP required services, yet these violations tend not to appear on the schedule A, and even when the transportation interruptions are reported, the attendant service interruptions, more often than not, go unreported. For those students who have related services or special education instruction at the beginning of the day, late buses 1 The Schedule A reports cumulatively on a monthly basis all violations filed with the Office of Compensatory Services within a particular school year. The Schedule A includes all violation types such as delayed meetings, late evaluations or re-evaluations, and late IEP implementation as opposed to the school district’s Outcome 11 Interruptions Report that provides data solely on interruptions in services.

90

must of necessity cause interruptions in these services as well. It is not possible, however, to determine the extent of the additional interruptions attributable to the transportation interruptions as this information generally is not assessed. The Special Master’s Office has raised concerns about these undocumented interruptions on several occasions. In the fall of the 07/08 SY the Deputy Special Master participated in a meeting with the Director of Transportation, the IMCIT Director of Transportation, two school transportation coordinators and several other staff from the Transportation Office. At that time, BCPSS agreed the Transportation Office would develop and implement procedures to assure these undocumented and largely unrecognized interruptions were tracked and compensatory service provided. During the 07/08 SY procedures for tracking these potential interruptions and the related revised roles and responsibilities of school-based transportation coordinators were developed and provided to the BCPSS Office of Legal Counsel and the BCPSS Special Education Officer for review and implementation. However, despite general agreement that such interruptions should be tracked and compensatory services provided, the procedures have not been finalized nor implemented. E.

Complaint Letters of Finding (LOFs)

The MSDE Letters of Finding addressing the investigations and decisions regarding written complaints generally include a number of findings of interruptions that are not included in the year end Schedule A or Outcome 11 Interruptions Report submitted by the BCPSS. The LOFs frequently appear not to be reviewed as a source of information for interruptions included in the BCPSS Schedule A and the Outcome 11 Interruptions Report.

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F.

Student Discipline

Schedule A and the Outcome 11 reports include some interruptions that can be attributed to disciplinary actions. In each of these instances, the BCPSS determines a student was removed from his/her placement for more than 10 days without the provision of service. The problem arises in connection with repeated removals when the total number of days of removal from educational service is not assessed for interruption identification and compensatory purposes. For instance, a student may be removed 9 days before being placed in an AES for 20 days and subsequently be subject to two disciplinary removals of 4 days each. In these circumstances, BCPSS does not routinely or systematically total the number of days without service for purpose for identifying the student’s total days of removal without service. The Special Master has discussed the need to account for these cumulative days without service in previous reports. The BCPSS needs to develop a process for accounting for interruptions attributable to disciplinary removals of more than 10 cumulative and consecutive days, including these data in its reports and OCS referrals. G.

School Transfers

The BCPSS has consistently struggled with the school transfer process. This includes problems related to transfers as students age and progress from elementary school to middle school and then on to high school as well as individual students transferring into a new school in the middle of the school year. These issues can include difficulties in identifying newly entering students as students receiving special education, in notifying appropriate staff that the student has entered school or in receiving records from the previous school. The BCPSS must improve its inter- and intra- school communication to assure all special education students are identified, records are transferred and staff assigned to provide 92

required services. Reporting of interruptions resulting from these transfers also must be consistent and accurate. H.

Interruptions due to Communication and Staffing Issues

The 2007/08 SY Schedule A Report reflects that a surprising number of interruptions were due to flaws in basic management, scheduling and communication practices, including: •

Miscommunications between related service providers resulting in interruptions when one provider assumed another was covering the provision of service.

•

Related service providers and/or ITAs were sometimes unaware that a special education student had enrolled in their school so services were not provided and interruptions are not reported.

•

School staff’s failure to develop and implement student schedules that were consistent with the requirements of students’ IEPs. I. 1)

Staffing School Level Staffing: The Explanation of Violation column of Schedule A

indicates that many interruptions were caused by a lack of staffing, e.g., instances in which personnel were not available to provide service in connection with vacancies, leave, resignations, etc. Vacancies in related service provider positions and special education teacher positions, of course, directly impact the provision of required IEP services and have the potential of creating interruptions in service. 2)

Central Office Staffing: The Related Services Office is responsible for assuring

provider coverage for the delivery of related services across the school district. The Office establishes caseload parameters and assigns staff to schools. When notified that a provider will be absent or a service cannot be provided, the Office is responsible for arranging staff or 93

contractor coverage. The Related Services Office has struggled with maintaining full staffing since the budget cuts of the 04/05 SY. Mid year in the 07/08 SY all positions in the Office were filled. However, due to a series of personal issues several of these positions became vacant during the year and were not filled as of the start of the 08/09 school year. In addition, Encounter Tracker Associates positions were newly created in the 2008 – 2009 school year and were not filled at the beginning of the year. By October 2008 all of the vacant and new positions had been filled either on an interim or official basis. The one exception was the supervisor of psychology services which has not been filled as of the date of this Report. It is expected that interviews to fill this position will occur in March 2009.

III.

BCPSS Efforts to Develop and Strenghen Internal Institutional Processes A.

Prevention Plan Process 1. Staffing The Prevention Plan Process is intended to assure coverage for staff vacancies

and extended absences as well as to establish a mechanism for providing assessments for evaluations and re-evaluations that current staffing levels cannot support. The BCPSS created an expanded Unit and hired staff in response to the Special Master’s recommendations and internal school district organizational assessments. However, the newly created Manager of the Prevention Plan Unit position which has dual supervisor responsibilities for oversight of the Encounter Tracker Associates as well remained vacant for much of the last two years. While all of the Prevention Plan Associate positions have been filled for some part of these years, the lack of a consistent Unit supervisor resulted in inconsistent and sometimes unclear prevention 94

plan oversight. This position has been filled in the 08/09 SY. The impact of having more complete staffing in this office will be assessed at the end of the current school year. 2. Electronic Prevention Plan Process: The Related Services Unit began an online Prevention Plan process in January 2008. This process is intended to create a coherent, unified, “real time” prevention plan data tracking system with oversight. However, the Prevention Plan data base’s accuracy and completeness is to some extent dependent on the Encounter Tracker data base, which tracks the major related services (speech, psychology, counseling, social work, occupational therapy and physical therapy). Some services, such as Audiology, kept independent data bases until the start of the 08/09 SY, and all information from these areas were not regularly updated in the central data base. In these instances throughout the 07/08 SY, the prevention plan associates were dependent on data from other data bases which were not consistently entered on a timely basis by other staff. Review of the prevention plan tracking data base printout revealed that the data base permitted a quick picture of whether assessments had been provided. However, there were many issues with timely completion of assessments that were not addressed. Many issues were identified with timely referral of assessments to the Related Service Unit. It also appeared that some assessments were provided late because timelines were not tracked while, in other instances, the assessments were late because staff could not be contracted. While it is a significant improvement to be able to determine whether all student assessments under the Prevention Plan process 95

have been provided, and, if they have been provided, the date on which they were provided, it remains problematic that the related issues of timeliness were not addressed. The BCPSS needs to develop internal processes to assure effective use of tools such as the prevention plan data base intended to improve data accuracy and school wide accountability. The Special Master’s office will review the use of the prevention plan data base and its impact on improved service delivery in its report on the 08/09 SY. B.

Encounter Tracker (ET)

The BCPSS initiated Encounter Tracker at the start of the 06/07 SY. ET is an electronic tracking system intended to provide improved records of the delivery of IEP required related services, and to provide management and tracking reports that will allow providers, their supervisors and principals to assure that related services are provided to students as mandated by their IEPs. The ET system provides for “real time” entry of service records into a computerized data base. It also includes report printing capacity that both allows individual providers to track their own service delivery and allows principals, managers and supervisors to track service delivery school or system wide. The implementation of ET has both increased the supervisors’ ability to establish review and support mechanisms and to improve the overall quality and consistency of providers’ documentation of service delivery. The supervisory reports permit related service supervisors to assess gaps in provision of service on a student specific basis as well as those attributable to particular providers or a lack of available providers. ET also allows supervisors to identify providers who are in need of intervention and support and tailor supervision to the needs of the particular provider. All of the major related service provider 96

groups are trained and using the ET system as of the beginning of the 2008 – 2009 school year. However, some provider entries are edited or changed, at providers’ requests, by central office staff members who are not their supervisors. It is important for BCPSS to develop an internal clinically based process for making these changes to ET entries to assure consistency in decision making, accuracy of data, and accountability. There continue to be inconsistencies between dates of service delivery entered in ET and student attendance records that may indicate students are absent on the day of service. Part of this difficulty may be attributable to the SASI attendance system which defaults to a notation of student presence when no specific contradictory information is input. The Special Master has been informed that the new attendance data system scheduled to go into effect in the 2009/10 school year will default to absent. It is likely that this change, if in fact made, will help increase the accuracy of the data and encourage consistent and accurate reporting of service delivery and interruptions.

IV.

Office of Compensatory Services (“OCS”) A.

Role of OCS

The Office of Compensatory Services and Remedy (OCS) coordinates the delivery of compensatory services to special education students who have been determined to have interruptions in IEP mandated direct and indirect services, including both instruction and related services. Once an interruption has been identified and confirmed, the OCS staff attempt to contact the parent to obtain consent to provide the compensatory services. This is referred to as the due diligence process. The staff is required to make three different efforts to contact the parent. If they do not succeed in contacting the parent after these three efforts, 97

they are authorized to close the matter, and no compensatory services are provided. If they do reach the parent, s/he is asked to sign a consent form allowing the compensatory service to be initiated. Upon receipt of parental consent, the child is referred to a service provider who contacts the parent to schedule appointments for the provision of service. Again, the service provider must make three efforts to contact the parent. When appointments are scheduled the provider maintains logs reflecting the dates, times and length of the service provided as well as summary notes regarding the particular interventions undertaken during the session. In the 2008/09 school year, the OCS added an internal auditor who reviews documentation of all OCS efforts to assure compliance with the process for determining awards, assigning providers, and delivering compensatory services. The majority of students who had interruptions in the 04/05 SY were designated “Remedy” students and were subject to different due diligence and service delivery procedures pursuant to court orders. These procedures included providing written brochures to parents prior to IEP meetings, providing specific notice regarding the remedy services to be provided prior to IEP meetings, providing enhanced efforts to contact parents to acquire consent for remedy services and documenting repeated efforts by providers attempting to provide remedy services. B.

OCS Data

The OCS provides the Special Master and the parties monthly data reports summarizing the provision of services for students found to have interruptions. There is one report for each school year for which compensatory services are to be provided. The OCS compiles data in three basic report formats: 98

●

Detailed, student by student information;

●

Summary information regarding the types of interruptions/violations

and the provision of the compensatory services by category of service cross referenced to summary status information such as hours with and without parent consent; and ●

A “Big Picture” format condensing the data into large data groupings.

“Big Picture” Reports for the relevant years are included in Exhibit 3 to this Report and are discussed further below. 1.

2004 – 2005 School Year a)

Eight thousand two hundred seventy seven students were

awarded a total of 92,572.38 hours of compensatory service for the 2004 -2005 school year. All of these award hours were in the related service areas of speech/language therapy, occupational therapy, physical therapy, psychology, counseling and social work.2 b)

The compensatory awards for the 2004 – 2005 school year

were provided either as related services or as tutoring. Some additional hours were provided through students’ enrollment in summer camps approved by the parties. i)

As of February 1, 2009, a total of 60,064.76 hours of

service had been provided, and 38,173.91 hours had been charged off as undeliverable.

2 Other related service areas were not tracked prior to the 07/08 SY.

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ii)

Charge-offs include hours that were to have been

provided to students who could not be located, students whose parents did not provide consent for service and students who were deemed unavailable when service delivery efforts are made. •

The OCS determined that 4617 students received all service hours awarded, and 1311 students received some of the hours awarded.

•

Parents refused all services for 553 students.

•

A total of 1793 students had all their hours closed out. This means that after all required due diligence efforts, the services were not provided because there was a lack of response, inability to contact or the student was unavailability for service.

c)

Only three nonpublic school students continue to have services

due from the 04/05 SY and as services are in process for each of these students, the Special Master concludes that the 2004/05 interruptions remedy can appropriately be closed out.3 2.

2005 – 2006 School Year a)

The February 2009 Big Picture Report for SY 05–06 indicates

a total of 25,864.38 hours were awarded to 2,053 students. The 3 One student was awarded 14 hours of physical therapy. He has been assigned a therapist. The second student has 0.83 hours remaining of her awarded physical therapy hours, and services are being provided. The third student has 12.26 remaining hours of her awarded speech therapy hours, and the therapist is continuing to work on completing these hours.

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majority of the awards (77.3%) in the 05/06 SY were for classroom instruction. The second highest percentage of awards was in speech/language services (13.4%). In addition there were interruptions resulting in awards in physical education, audiology, psychology, occupational therapy, physical therapy, counseling, social work, transportation and vision. b)

Of the 25,864.38 hours originally awarded, a total of 6,567.78

have been provided. A small number of the hours provided, 131.6, were deemed to be overservice.4 As of this report, 12,033.79 have been charged off. An additional 7166.00 were charged off because tutoring is provided on a 1:3 hour compensatory basis. i)

The OCS determined that 893 students (43.5% of the

2,057 students who received awards for the 05/06 SY) had received all their services. They were originally awarded 10,792.25 hours of service.5 Fifty additional students received some portion of their awarded hours while some of their award hours were closed out without being provided. ii)

The OCS was not able to obtain parental consent for

649 students who had awards totaling 8290.26 hours of service, and 149 students for whom consent had been received were

4 Overservice hours are hours of service provided above the number of hours in the compensatory award. 5 The original number of award hours is not identical to the number of hours of received services. Service hours received are reduced because students receiving compensatory services for instruction receive a portion of those hours on a 1:3 ratio as agreed by the parties.

101

deemed unavailable for service. The unavailable students had awards totaling 1157.70 hours. iii)

Three students did not receive 48 hours of service

because they died. iv)

One hundred sixty students did not receive 1660 hours

because their parents refused all service. 3.

2006 – 2007 School Year a)

The Big Picture Report for SY 06–07 indicates that 1668

students6 were awarded a total of 33,172 hours of service. As in the prior school year, the majority of these awards (90%) were for classroom instruction (including transportation) involving 1,056 students. The second highest percentage of awards was in speech/language services (5.7%) involving 559 students. In addition there were interruptions in physical education, audiology, psychology, occupational therapy, physical therapy, counseling, social work, and vision.7 b)

The Big Picture Report shows that of the 33,172 hours of

compensatory services to be provided, a total of 7,871.95 were provided, and 12,606.37 were charged off. An additional 12,035.52 hours were charged off because tutoring is provided on a 1:3 hour compensatory basis.

6 This number is an unduplicated count; some students experienced more than one interruption and may appear on multiple lines. 7 Other related service areas were not tracked prior to the 07/08 SY.

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i)

The OCS determined that 783 students (47%) received

all their services, and 41 additional students received some portion of their service awards. ii)

The OCS was not able to obtain parental consent for

253 students who had awards totaling 2,069.67 hours of service, and 146 students with 2088.75 award hours for whom consent had been received were deemed unavailable for service. iii)

Two students did not receive 5.5 hours of service

because they died. iv)

Two hundred fifty three students did not receive

2,069.67 hours because their parents refused all service.8 4.

2007 – 2008 School Year a)

The Big Picture Report provided by OCS indicates that

20,005.95 hours of compensatory services were awarded to 957 students. Once again, the majority of these hours (90.5%) were awarded for interruptions in instruction, and the second largest number of award hours (5.1%) was for speech. Students also were found to have interruptions in occupational therapy, physical therapy, psychology, social work, counseling, audiology, transportation, transition, orientation and mobility training, and IEP aides.

8 The same explanations of the data apply to the 06/07 SY as applied to prior school years.

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b)

Of the 20,005.95 awarded hours, a total of 4,561.16 hours were

provided, and 6,281.90 hours were charged off. An additional 6,794.17 hours were charged off because tutoring is provided on a 1:3 hour compensatory basis. i)

The OCS determined that 365 students (38.1%)

received all their services, and 8 additional students received some portion of their service awards. ii)

The OCS was not able to obtain parental consent for

249 students who had awards totaling 4,282 hours of service, and 35 students with 1,015 award hours for whom consent had been received were deemed unavailable for service. iii)

Eighty one students did not receive 1,404.98 hours

because their parents refused all service.9 C.

Review of OCS Diligent Efforts Process

In order to determine whether a student who did not receive compensatory services due to “write-offs” (or “charge-offs”) was provided the required opportunities to receive services, the Special Master’s Office performed an audit of the due diligence efforts of the Office of Compensatory Services for students who had interruptions in service in the 2004/05, 2005/06, and 2006/07 school years and whose awards were forfeited between 6/1/07 and 10/17/07. The Director of the Office of Data Management established the criteria for selecting a statistically relevant sample. It was determined that 50 students from each

9 The same explanations of the data apply to the 07/08 SY as applied to prior school years.

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year would be sufficient. A targeted sample meeting the focus criteria for the audit was selected. Students were chosen to give a cross section of all possible cases including those that had forfeited large awards, those that had forfeited small awards, and those from various grade levels. While several students had awards in more than one year and available data for each year was collected, the Special Master’s Office decided to audit the students’ records for the year in which they were selected only. Each folder was audited two times and reviewed a third time in an effort to assure a complete and thorough audit of all relevant due diligence information. Assessments were made of the due diligence process only. In each of the three years audited, compliance with the due diligence process was determined to be above 83%, and in two of the years compliance was at the 86% rate or better. For those students for whom due diligence was not established by the audit, the Special Master required that OCS provide additional due diligence outreach consistent with legal requirements. The Special Master’s Office reviewed with BCPSS supervisory staff concerns regarding staff’s failure at times to substantively review why their outreach efforts had failed (e.g., repeated use of incorrect address or failure to communicate in language of parent). Starting in the 2008/09 SY, BCPSS’ OSEMC unit has assumed responsibility for oversight of the compensatory service process, including the due diligence outreach process.

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V.

Recommendations As noted in the Introduction to this Report, the Special Master has made the

recommendations below in an earlier circulated draft of this Report and orally in meetings. The BCPSS has proceeded through the current school year to develop or implement institutional measures that seek to address a substantial number of the remedial objectives identified below which are critical to a demonstration of substantial compliance. 1. Maintain an Accountable, Consistent Tracking of Interruptions and Implementation System for Tracking Delivery of Interruption Remedies. A.

The school district largely depends on self-reporting for determining when an interruption occurs. This self-reporting rate (4.5% in the 07/08 SY) has not been consistent, with far higher rates of interruptions reported in audits performed by MSDE (30.5% for related services only) and OSEMC (16.5% for related services and 45% for indirect special instruction for sample cases in 10 audited schools). Accordingly, the BCPSS must address the disparity in identification and reporting of interruptions to move toward substantial compliance with Outcome 11 and remedying the service delivery gaps underlying this Outcome.

B.

Review and examine all potential data and reporting sources, whether maintained by BCPSS or others, to improve completeness of data reporting, consistency and accountability.

C.

Consult with MSDE regarding its audit processes and practices in other jurisdictions, and review the audit practices adopted by OSEMC. Develop implementation strategies for improved self-assessment and interruption 106

reporting at a school level. Consider how self-reporting can be properly supported and strengthened, as opposed to viewing self-reports solely as grounds for punitive discipline. Also consider methods to verify self-reports. D.

The BCPSS should implement procedures for tracking interruptions resulting from transportation service lapses -- and in particular, determining when such interruptions cause other service interruptions, and reporting all of these interruptions to OCS for compensatory awards. A memorandum containing recommended procedures has not been approved by the Office of General Counsel and should be reviewed anew, modified, as appropriate, with input from the Special Master’s Office, and implemented as soon as possible.

E.

Develop and implement revised management, reporting, and remedial practices for tracking cumulative days of student suspension.

F.

Until data matching and spotting methodology has been developed and implemented, determine how most efficiently to review, reconcile, record, and address inconsistencies relative to dates of recorded service delivery and dates of students’ attendance.

G.

Strengthen the Office of Compensatory Services’ internal management and review procedures to assure due diligence in contacting parents, record management, and data consistency and accuracy for purposes of maintaining a fully reliable, accurate database of compensatory service delivery in connection with identified interruptions.10

10 The sufficiency of due diligence process and student folder management has already been addressed with OSEMC’s leadership who are overseeing the OCS in the 2008/09 SY.

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2.

Maintain Consistent Management Staffing to the Extent Feasible in Related Services and Prevention Plan Offices. •

Give continued priority to hiring and retention of related services supervisory staff.

•

Give priority to staffing the positions of Prevention Plan Process Manager and Prevention Plan Associates to assure consistent and effective oversight of the prevention plan process.

3.

The Court should maintain jurisdiction over Outcome 11. Review of whether BCPSS

has achieved substantial compliance shall be conducted anew subsequent to the completion of the 2008/09 school year.

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ULTIMATE MEASURABLE OUTCOME # 13: BCPSS will ensure a minimum of 98% of the students with disabilities (14 and above) who are designated as “dropouts” will have an IEP team review meeting. Compliance Standard: Substantial compliance Status reported by BCPSS: Partial Compliance Special Master’s findings: Partial compliance

I.

Overview and Summary of Findings This Outcome is intended to help address the high percentage of special education

student dropouts occurring each year in the BCPSS. It is based on the premise that holding IEP meetings for students who have dropped out or are on the verge of dropping out can lead to the development and implementation of appropriate interventions that will support some students’ return to school. The CEO has initiated system wide efforts to encourage all dropouts to return to school. These efforts aggressively seek to reverse the tendency of some schools to give up on particularly troubled or truant students. This Outcome is aligned with these more general efforts. According to the Court’s prior construction of this Outcome, within 60 days of special education students exiting the district as dropouts, the BCPSS is required to conduct an IEP meeting. See, Order of August 31, 2004 [Paper No. 1439]. While no school team can project for certain that a specific student will drop out, chronic student truancy is the clearest indicator of a student’s potentially dropping out. Chronic truancy should serve as the trigger to schools for conducting timely meetings that would both satisfy the Outcome and carry the promise for effective intervention To achieve compliance with this Outcome, the BCPSS, therefore, needs to assure IEP meetings are

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held for students identified as being at immediate risk of dropping out or who have effectively dropped out by virtue of non-attendance within 60 days of the students’ formal designations as drop-outs. Required documentation confirming the conduct of an appropriate IEP meeting in this time frame is a clear prerequisite to fulfilling the requirements of this Outcome. If the overarching programmatic goals of Outcome 13 are kept firmly in mind, the school system should be able to meet this Outcome by the conclusion of the 2008/09 SY given its current record of progress as well as the remaining impediments. The BCPSS Compliance Statement indicates that in the 2007/08 SY, it achieved a 93.6% compliance rate with this Outcome. The BCPSS identified two groups of students who did not meet the compliance standard. The first is a very small group of students who had IEP meetings outside the 60 day time limit imposed by the Court, and the second is a group of students for whom the data in SETS and SASI are not consistent. The BCPSS data indicate a 5.8 percentage point improvement, over the 06/07 SY data, in compliance with this Outcome from 87.8% to 93.6%. The greatest area of improvement was in holding IEP meetings within 60 days. The OSEMC bi-annual exit audits suggest some of the underlying patterns of noncompliance that are not fully illuminated by the data provided in the Compliance Statement and remain of concern. For example, in November 2007, the OSEMC reviewed nine student records with Exit Code H (Drop out) at seven different high schools. Two of these nine student folders (22.2%) did not have the documentation required for exiting the student as a dropout. In June 2008, the OSEMC reviewed seventeen student records with Exit Code H at twelve high schools and one elementary

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school. Five of the 18 student folders (27.8%) did not have the required documentation for exiting the students as dropouts. In each instance the OSEMC noted there was no evidence of an IEP exit meeting.1 The MSDE Exit Audit for 2007/08 school year provides relevant information in assessing the school district’s compliance with Outcome 13. In contrast to the OSEMC process which involves the review of a sample of the folders of those students exiting the district during the school year, the MSDE exit audit reviews the folders of all students exiting the BCPSS during the school year. While MSDE trend data show a decreasing number of students assigned Exit Code H (dropout), the MSDE, as it has for several years,2 finds a significantly lower compliance rate than the 93.6% found by the OSEMC. In the 2004/05 SY, 831 students were designated dropouts, according to the BCPSS’ report to the State. In 2005/06, the number decreased to 759, and in 2006/07 the number was down to 640. In 2007/08, the number decreased even further to 569 students. It should be noted that the 640 students deemed dropouts in 06/07 accounted for 36% of the special education students leaving the system that year. That percentage decreased slightly to 33.5% in the 07/08 SY. From the 04/05 SY through the 06/07 SY, the MSDE was able to verify the accuracy of the drop out designation in no more than 58% of the student records. In the 07/08 SY the verification rate increased somewhat to 63.8%. In 07/08, of the 596 students reported by

1 The Special Master notes that nothing in the OSEMC report indicates the OSEMC monitors looked at the 60 day timeline allowed by the Court for measuring compliance exit IEP meetings’ compliance with this Outcome. 2 The BCPSS continues to note high levels of compliance with this Outcome in the 08/09 SY. Reporting at mid year in the 2008-2009 SY, BCPSS finds it has achieved 84.6% compliance. While this is a lower level of compliance than reported for the entire 07/08 SY, it remains much higher than the rates found by the MSDE in any year.

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the BCPSS to be drop outs,3 the MSDE verified 380 and was not able to verify 205 after reviewing the records. In addition, no records were provided for an additional eleven students who were identified as dropouts. Thus, a total of 216 records were not verified. The MSDE monitors found that 203 student records did not contain documentation that either an IEP Team meeting was convened to discuss the student exiting special education, or, at the IEP team meeting, the team did not document that special education services would be reinstated upon the student’s reenrollment.4 Of these 216 students whose exits as dropout were not verified 20, or 3.4% of the 585 student records reviewed, included documentation that supported another exit code, and 36 records (6.2%) of the 585 records reviewed were for students who had not reached 16 and, therefore, could not legally drop out. In total, MSDE was unable to verify exit codes for 464 (27.4%) of the 1,693 students who exited special education in the 07/08 SY.

II.

Recommendations 1.

As noted, BCPSS is well positioned to demonstrate substantial compliance

with this Outcome at the conclusion of the 2008/09 SY. The Special Master notes that the BCPSS has at times had some difficulty maintaining activities at compliance levels once released from the close monitoring associated with procedural Outcomes. The creation and maintenance of institutional mechanisms to assure maintenance of these

3 BCPSS reported 513 in its compliance statement. Thus, BCPSS is analyzing only 86% of the folders with drop-out exit code designations. 4 The Special Master recognizes the MSDE combined two criteria in this finding (holding timely exit meetings and documenting services would be reinstated upon re-enrollment) and, therefore, the precise number of students who did not have required exit meetings within the 60 day timeline cannot be determined. However, it is clear that some portion of these 203 students did not have the exit meetings, and this number would be greater than the small number identified by the OSEMC.

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efforts is essential. To meet and maintain this Outcome, the Special Master recommends the following measures: A..

The BCPSS should develop and implement an early warning system

that will both flag all special education students who are potential dropouts and specify the date certain by which their IEP meetings must occur. This effort should be integrated with the current effort to identify students who are not attending school and are in danger of becoming dropouts initiated in the 08/09 SY. B..

OSEMC’s exit monitoring should be expanded to include selective,

targeted audits at schools which have exhibited lower rates of compliance with the exit standards for dropouts set forth by this Outcome or MSDE, according to OSEMC and MSDE monitoring or other data. Special education staff should initiate prompt follow-up support, training, and corrective action at the identified schools following these targeted audits. Such corrective action should include requiring schools to conduct appropriate IEP meetings for intervention purposes except where such a meeting would clearly be too late to be productive. 2. The Court should maintain jurisdiction over Outcome 13. Review of whether BCPSS has achieved substantial compliance shall be conducted subsequent to the completion of the 2008/09 school year and completion of the annual MSDE EMCIR exit audit.

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Certificate of Service I hereby certify that on this 5th day of March 2009, a copy of the foregoing SPECIAL MASTER’S REPORT ON STATUS OF DEFENDANTS’ ACHIEVEMENT OF ULTIMATE MEASURABLE OUTCOMES 3, 4, 7, 8, 9, 11, & 13S and associated exhbits were transmitted by e-mail to the following: Elliott Schoen and William Fields, Assistant Attorneys General, 200 St. Paul Place, 19th Floor, Baltimore, Maryland 21202; Leslie Seid Margolis, Esq. And Robert Berlow, Maryland Disability Law Center, 1800 N. Charles Street, Baltimore, Maryland 21201; and Maree F. Sneed, Hogan & Hartson, 555 Thirteenth Street, Washington, D.C. 20004.

Amy Totenberg