Interim Joint Committee on Education


Minutes of the<MeetNo1> 2nd Meeting

of the 2009 Interim


<MeetMDY1> July 13, 2009


The<MeetNo2> second meeting of the Interim Joint Committee on Education was held on<Day> Monday,<MeetMDY2> July 13, 2009, at<MeetTime> 1:00 PM, in the Anne Hart Raymond Building, Auditorium, Midway College<Room>. Representative Carl Rollins II, Co-Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Ken Winters, Co-Chair; Representative Carl Rollins II, Co-Chair; Senators Walter Blevins Jr., David Givens, Alice Forgy Kerr, Vernie McGaha, Tim Shaughnessy, Elizabeth Tori, Johnny Ray Turner, and Jack Westwood; Representatives Linda Belcher, John "Bam" Carney, Hubert Collins, Leslie Combs, Ted Edmonds, C. B. Embry Jr., Bill Farmer, Tim Firkins, Jim Glenn, Derrick Graham, Jeff Greer, Jimmy Higdon, Reginald Meeks, Harry Moberly Jr., Marie Rader, Jody Richards, Tom Riner, Charles Siler, Kent Stevens, Wilson Stone, and Addia Wuchner.


Legislative Guest:  Senator Katie Stine


Guests:  Ms. Virginia Moore, Acting Executive Director, and Ms. Rowena Holloway, Internal Policy Analyst III, Kentucky Commission on the Deaf and Hard of Hearing; Ms. Brigid DeVries, Commissioner, Mr. Julian Tackett, Assistant Commissioner, Mr. George Fletcher, General Counsel, and Mr. Elden May, Sports Information Director, Kentucky High School Athletics Association (KHSAA); Ms. Melissa Justice, Assistant Associate Counsel and Ms. Betty Gilpatrick, Student Aid Branch Manager, Kentucky Higher Education Assistance Authority (KHEAA); Mr. Kevin Noland, Interim Commissioner of Education, Mr. Kevin Brown, General Counsel, Ms. Robin Chandler, Policy Advisor, Office of Teaching and Learning, Ms. Rhonda Sims, Director, Division of Assessment Support, Mr. Larry Taylor, Director, Division of Exceptional Children Services, Kentucky Department of Education (KDE); Mr. Richard King, President, and Ms. Sue Cain, Coordinator, Developmental Education and College Readiness Initiative, Council on Postsecondary Education (CPE).


LRC Staff:  Audrey Carr, Sandy Deaton, Janet Stevens, Ken Warlick, Laura Blaser, and Lisa Moore.


Representative Rollins asked for a motion to approve the minutes of the June 8, 2009 meeting. A motion was made by Representative Collins and seconded by Representative Richards. The minutes were approved by voice vote.


Representative Rollins introduced and thanked President William B. Drake, Jr., for the hospitality and lunch provided by Midway College. Dr. Drake welcomed the members to Midway and thanked Co-Chairs Representative Rollins and Senator Winters for holding the meeting on campus and for their continued support of private colleges in Kentucky. He said private colleges exist to meet public purposes and priorities in private settings. He noted Midway College is a partner with the state in workforce development by offering programs in nursing, business degrees and the equine program that lead graduates to jobs that increase their income and the quality of life for their families.


Dr. Drake said 80 percent of Kentuckians do not have a college degree. He said private colleges strive to meet the needs of working adults by offering on-line programs and accelerated degree completion programs in the evening.


Dr. Drake said the tuition at Midway College is at least three times more than the tuition cost of a public university. However, the average debt load of students graduating from private colleges in Kentucky is within a few hundred dollars of students graduating from public universities.


Dr. Drake described some unique courses that are offered by Midway College. He said Midway is the only program in the state that offers an on-line degree in teaching and in special education. He said they offered the first Bachelor of Arts degree in Homeland Security as well as Organizational Management and Leadership. Beginning this year, Midway will offer the first degree of its kind oriented toward the mining industry. The development of the Mining Management Degree was funded by the coal industry in Kentucky to serve a critical need. He said it will be an on-line degree completion program for those who are currently working in the coal industry and need to upgrade their skills in mining.


Representative Rollins introduced Ms. Marcia Seiler, Director, and Ms. Deborah Nelson, Research Analyst, Office of Education Accountability (OEA), who presented the OEA Review of Special Education in Kentucky.


Committee members were provided a copy of the Review of Kentucky Special Education Data PowerPoint and a copy of the “Review of Special Education in Kentucky” Research Report No. 358. These materials can be located in the meeting folder in the Legislative Research Commission (LRC) library. The report can also be accessed on-line at the LRC Website.


Ms. Seiler said the OEA presented the “Review of Special Education in Kentucky” report to the Education Assessment and Accountability Review Subcommittee (EAARS) in October of 2008. She said it was a study on the 2008 OEA research agenda.


Ms. Nelson presented key points in the analysis of Kentucky’s special education data. She noted the report was the result of many authors, including Dr. Ken Chilton, Director of Research, and Ms. Pam Young, Finance Manager, OEA who were available to answer questions from committee members. She said special education programs provide instruction, and related services, such as physical therapy to students with disabilities. The goal of special education programs, as defined in federal regulation, is to prepare students with disabilities for further education, employment, and independent living. She noted that special education programs have been credited with providing access to education for many students who would have been denied in the past. However, special education programs also raise a number of concerns for policymakers, and the main concerns are discussed in the report.


Ms. Nelson said she would describe the identification, funding, assessment results, and future challenges and issues regarding the special education program. She indicated to members that the full report includes information on the gifted and talented students.


Ms. Nelson said the process of identification is governed by the Admissions and Release Committee (ARC). Students are referred by teachers, parents, professionals, or state agency personnel staff for evaluation. She said the eligibility is then determined at the school level by the ARC. The identification criteria are more specific in some categories than in others and not all referrals result in special education identification. She said membership on the ARC is governed by regulations, and includes special education teachers, administrators and parents, and can include the child and diagnostic and evaluative staff as well. All school districts do not employ professional diagnostic staff. After the ARC identifies a student as eligible for special education services, an Individualized Education Program (IEP) is developed, which details the specific instruction that the student should have. At that time, the district is required to provide all the services outlined in the IEP regardless of cost.


Ms. Nelson said the ARC can also determine that a student is not eligible for special education services. The ARC can serve a gate keeping function because there is some anecdotal evidence that sometimes students are referred for special education, whether or not the students need the services. In some cases, special education students can qualify for funding from other government programs and this can give parents a financial incentive to have their children declared as special education students. Another possible motivation is that special education students can receive testing accommodations on Kentucky assessments and some believe this can increase test scores on the assessments. Finally, special education identification can determine eligibility for entry into preschool for those students who do not qualify because of economic needs.


Ms. Nelson said the disability categories include those with high incidence such as speech and learning disabilities; those with a moderate incidence such as developmental delays, and hearing and visual impairments; and those with a low incidence such as emotional behavioral disorders, multiple disabilities, deaf-blindness, autism, and traumatic brain injury. She noted the majority of special education students have less severe disabilities.


Ms. Nelson said the preschool through 12th grade special education enrollment has grown moderately at 3.2 percent since 2000. She noted the different cohorts of special education, however, broken down by age groups, have outpaced the regular education population by growing 16.1 percent over the last 7 years. She said Kentucky ranks about 12 percent higher than the national average in enrollment of special education students. She discussed specific identification trends for each age cohort which is in the meeting materials located in the LRC library.


Ms. Nelson said developmental delay and other health impairments are the two fastest increasing categories of disability types identified in students. This is a concern because the criteria for placing students in these categories can be very broad.


Ms. Nelson emphasized the need for providing appropriate services for students with disabilities. She said another concern is a need for effective and efficient services for struggling students with no clear disability. There are other types of interventions that may be more effective for some students struggling in the classroom. Special education services, on the whole, cost more than other intervention methods. Finally, she said there needs to be transparency and fairness in preschool eligibility.


Ms. Nelson said the total special education revenue in 2007 was $539,366,526. She said the funding formula has Seeking Educational Excellence in Kentucky (SEEK) add-on weights based on a per pupil basis with each student identified as associated with an increase in revenue. She noted the more severe the disability the higher the SEEK add-on weight because of the need for more intense services. For this reason, some researchers have raised concerns that Kentucky’s type of funding system may provide an incentive to identify students for special education.


Ms. Nelson said it is important to note that SEEK is composed of both state and local revenue. The lower wealth districts receive a greater percentage of state funds through the SEEK formula than the higher wealth districts. Therefore, a district that increases its identification rate of special education students will receive a greater increase in state funding if it is a lower wealth district than if it is a higher wealth district. At the same time, the SEEK funding mechanism may also provide a disincentive for some school districts to reduce identification rates for students who are on the borderline and may be struggling in the classroom, but have no clear disability identified. Lower wealth districts have less fiscal flexibility to address the needs of these students in the regular classroom versus special education programs than do higher wealth districts.


Ms. Nelson explained the revenue and expenditures trends from fiscal year 2003-2007. She said special education revenues have grown by 32.3 percent; expenditures have grown by 41.8 percent; and K-12 special education enrollment has grown by 10 percent. She noted that some school districts may have coded special education expenditures to the wrong account code so there could be discrepancy in the figures. She said expenditures have outgrown revenues steadily since 2003 and there was a $38 million gap in 2007.


Ms. Nelson said a finance concern is the growth in expenditures. If the current trends continue, they will be unsustainable at the state and local level. She said another concern is the differences in expenditures by district wealth. She said there are also concerns about the levels of service and the costs of educating certain students.


Ms. Nelson explained the student assessment data. She said the topic of assessment and accountability for students with disabilities is extremely controversial. She said many concerns stem from changes associated with federal regulations in the No Child Left Behind (NCLB) Act.


Ms. Nelson noted that Kentucky was at the forefront of most states requiring that special students be assessed and their scores included in the accountability system. She said changes were made because federal policymakers believed there were low expectations for students with disabilities and that they did not receive core content in regular classroom settings. She noted the Commonwealth Assessment Testing System (CATS) was a compensatory system and all schools face state sanctions. She said CATS also permitted alternate assessments for about one percent of all students. NCLB uses subgroup accountability and only Title I schools face sanctions. She noted NCLB administers an alternate assessment that must be on grade level.


Ms. Nelson said NCLB is criticized as having unfair or unrealistic expectations because the changes were implemented so quickly. It has provided a shock to the system because of insufficient attention to improving teacher skills and giving them access to the type of resources that would allow them to adapt to advanced content.


Ms. Nelson discussed the testing accommodations used for special education students. She said a testing accommodation can be technology or a process that is intended to allow students with disabilities to demonstrate their knowledge of content without regard to their disability. She it is very important that the use of an accommodation not compromise the construct of what is being tested. She said experts do not agree on the effect of different accommodations on the content that is being tested.


Ms. Nelson said the Kentucky Core Content Test (KCCT) includes regular and alternate assessments. She said many students with disabilities receive accommodations, but the accommodations raise validity and reliability issues. She also noted the reader, paraphrase, and scribe accommodations are administered by individuals therefore making it difficult to ensure that accommodation practice are standardized in administration across districts and schools, thus affecting the reliability of the assessment results. She noted that while Kentucky does allow the reader accommodation, the ACT and the National Assessment of Education Progress (NAEP) do not.


Ms. Nelson said elementary special education students made the greatest gains overall. She said the data suggests that at least some students with disabilities are capable of performing at higher levels than in the past. She said middle and high school special education students tend to have more trouble reaching proficient or distinguished as content and subject matter on the assessments is more advanced. She discussed specific reading and math proficiency rates on the 2007 KCCT and these detailed tables are located in the meeting folder in the LRC library.


Ms. Nelson said there are too many schools in the lowest proficiency ranges despite the fact that some schools show great success with the same students. She said this could be due to the differences in the qualifications of teachers or instructional practices.


Ms. Nelson said that data shows improvement is possible for students with disabilities. There is a discrepancy between expectations and performance. She mentioned that NCLB is in the process of being reauthorized. She said there will likely be some changes made in the federal legislation that could change the expectations for special education standards. She said this could lead to potential unintended consequences such as the misuse of accommodations and tensions between academic and nonacademic goals. The federal government will allow some states to pilot alternative intervention models if they are not on track to meet their goals in 2014.


Representative Rollins asked if other states had different levels of assessments to assess the wide array of disabilities that students may have outside of NCLB assessment requirements. Ms. Nelson did not know what other states used for assessing disabilities prior to NCLB. She noted NCLB requires all states to assess students on grade level content.


Representative Rollins asked if the Title I funds were tied directly to NCLB. Ms. Nelson said yes. Representative Rollins said that Kentucky needs to correctly identify student disabilities and include appropriate assessments in the student’s IEP.


Ms. Nelson said Kentucky cannot control the goals established under NCLB. She said one percent of the total population can take the alternative assessment, but it still must be on grade level content. She said the federal government is allowing states to add another percent of the population into the group that is allowed to take the alternative assessments on grade level content. She said there is convincing data that expectations are lowered in systems that individualize goals for each student. Representative Rollins said an ideal system would include an IEP with an individualized accountability plan that maintains high expectations for students.


Representative Stone asked if the standards had changed for identifying students with disabilities. Ms. Nelson said the standards have changed and referred the question to Mr. Larry Taylor from KDE. He said the standards have changed based on new information and data, but she could not explain exactly how they have changed in Kentucky.


Representative Stone asked if there was a way to disaggregate the data to compare schools with high levels of special education students to schools with low level special education students that have similar demographics. He would like to see a comparison of the difference in performance between those two type schools.


Ms. Nelson said a comparison could be performed, but conclusions may not be clear because the schools could have different performance levels for reasons other than the special education population.


Representative Belcher said she shares a concern about the assessment of special needs students and their learning frustration issues. She asked Ms. Nelson if the teachers are effectively utilizing the alternative assessment program for assessing the special needs students.


Ms. Nelson said the alternative assessment program includes the high performance expectations of special education students. Students, parents, and teachers are still feeling frustrated with the alternative assessment program in its current form. She said the requirements for states to change their assessment systems came very quickly. Kentucky moved swiftly to change its assessment system to be in compliance. Teachers were not adequately trained on the new content and methods needed to teach the special education students with the most severe disabilities.


Representative Belcher said it concerns her that some students are being taught the Pythagorean theorem when what they really need is a personal finance class. Ms. Nelson said schools can still offer a finance class. There is still flexibility in the IEP, but assessments will be required to make sure the appropriate criteria were covered.


            Representative Wuchner said Kentucky has its own chapter as part of the National Foundation for Dyslexia. She said fifteen percent of the students in the Commonwealth, if properly diagnosed, would fall into the dyslexia category. She asked how they fit into one of the special education categories. She also asked about response to intervention program and if students participate without having an IEP established.


            Ms. Nelson said dyslexia is not covered in this special education report in great detail. She did note that students diagnosed with dyslexia are placed into the category of Specific Learning Disability (SLD).


Representative Wuchner is concerned Kentucky is missing these children and realizing their problems too late in their educational experience. She said students with dyslexia often have very high I.Q’s and can flourish if intervention happens early in their school years. They often need assistance with phonemic awareness, memory, and auditory issues.


Ms. Nelson said the line between special education and regular education is blurry. There are some students enrolled in special education that have dyslexia, and still do not receive the appropriate services for their disability. She said students who are diagnosed with dyslexia should receive the appropriate interventions to help them. It is not known if classroom teachers are sufficiently trained to be able to recognize the disability and provide assistance.


Representative Wuchner asked if the speech condition apraxia is showing up in greater numbers among students across the Commonwealth. Ms. Nelson said she did not know about increasing identifications rates for apraxia.


            Representative Farmer talked about the prevalence of disability types and how Kentucky compares to the national average. He said Ms. Nelson has alluded to the fact that Kentucky does not have a standard for how these disabilities are being defined. He asked Ms. Nelson if Kentucky would fall more in-line with the national average if a standard were defined for each group, or are there true outliers involved. 


Ms. Nelson said she cannot answer that question with the data that is currently available. Representative Farmer asked if Kentucky has a standard population and no true outliers included. Ms. Nelson said that it not known, but there is no reason to believe that Kentucky would have a population that is as different as indicated by the data.


            Representative Carney asked if schools do a reevaluation every three years. Ms. Nelson said yes. Representative Carney asked if a significant number of students exit the program at the three year evaluation. Ms. Nelson said speech language students most notably exit the program after three years. She said over time students of the mild disabilities exit the program from kindergarten through 12th grade.


            Representative Carney noted that the test scores of special education students increased after taking their assessments on-line. He is concerned that due to funding reasons special education students will not have access to computers next year. Ms Nelson said there will be a CD option, but they will not be allowed to use computers next year. Representative Carney asked if the legislature can help with this effort because research has shown that these students perform better with the use of computers. Representative Rollins said this question would be best suited for Mr. Taylor. Representative Carney thanked the OEA for an excellent report.


            Senator McGaha asked if some school districts are receiving more money than they are spending. Ms. Nelson said that was correct and school districts are not required by regulation to spend all the revenue that is received and coded for special education. She said most districts are close to even, but there are 23 districts that are spending less than 75 percent of what they take in. Senator McGaha asked if the data used for the report is one raw number or an itemized expense list. Ms. Nelson said the data used for this report was not specific data and she would have to look at the financial list of districts for that type of information. Senator McGaha would like to see the raw data of the amount of money received and spent by each individual school district. Ms. Nelson and Ms. Seiler said they would get the information for Senator McGaha.


            Representative Higdon said he was glad to see that OEA’s report included that there was a problem of parents using the system for financial incentives to have their children classified as special needs. He feels there is a need for improved regulation of this issue. Ms. Nelson said OEA did not include that specific anecdote in the report, but the overall issue of accurate identification has huge fiscal consequences.


            Representative Rollins asked Mr. Larry Taylor, KDE, Division of Exceptional Children Services, to give a response to the OEA report. Mr. Taylor said beginning in 2000, KDE did see a steady increase of students being identified in preschool as having a disability. After 2005, KDE has seen a steady decrease in these numbers. He said the response to intervention was implemented as an alternative to placing children in special education. He said this system requires teachers to have provided research-based practices to a student prior to identifying the child as disabled.


            Mr. Taylor said there is a very low rate of students identified with specific learning disabilities. He said Kentucky has a higher than the national average rate in the areas of other health impaired and developmental delay. Kentucky allows the developmental delay identification to be in place until the child reaches eight years old.


            Mr. Taylor said there has been a steady increase in graduation rates for special education students, although still far below the graduation rates of all students. He noted that dropout rates have steadily declined, but there is concern noted in the full report on how the dropout rates are calculated.


            Mr. Taylor said districts that report extremely high numbers of special education students are monitored. KDE monitors a district by performing a desk audit, or may take an on-site visit to review folders and ensure there is appropriate evidence of eligibility. He said 11 districts will be monitored this year for showing more than 15 percent of the student population as having disabilities. He noted the national average fluctuates between 12 and 13 percent for all disability categories.


            Representative Rollins asked if 11 districts was the total number of districts above the 15 percent mark for students with disabilities. Mr. Taylor said no, but did not remember the total number. He said KDE has 25 staff people that can conduct on-site visits and perform the general supervision requirements for the 11 selected school districts.


            Representative Graham asked how KDE determines which districts it will monitor. Mr. Taylor said the districts that have the greatest number of identified students.


            Senator Westwood asked if the increase in graduation rates of special education students between 2004 and 2007 were regular high school diplomas, or did the numbers include certificates and GED’s. Mr. Taylor said the graduation numbers do not include certificates and GED’s. He said there are 109,000 students in Kentucky with IEP’s, and less than one percent is enrolled in the certificate program.


            Representative Belcher asked if KDE has plans to increase the training of teachers on the alternate assessment program. Mr. Taylor said KDE is in the third year of implementing a federal grant that provides training to teachers on how to take the standards and break them into activities for the individual students they are serving.


            Senator Givens said the report indicates there was a decline in 3 to 5 year old identification rate trends from 2005-2006 and he asked about the numbers for 2007-2008. Mr. Taylor said KDE collects the data in December of each year so the KDE does know the 2007-2008 numbers. He said there was a 1.65 percent decrease from 2005 through 2008, which translates to approximately 3,000 students in that population. Senator Givens said even with the 1.65 percent decrease, Kentucky is still above ten percent. He feels there is an over identification problem, particularly in the age range of 3 to 5 years old. He asked Mr. Taylor if he concurred. Mr. Taylor said he concurred, but in the context that regulations changed in 2005 and the response to intervention program was implemented. He also said it is important to note that Kentucky does not have universal preschool, it is need-based. The two ways to have a child enrolled into preschool is to have an IEP or qualify for the free lunch program.


            Senator Givens asked Mr. Taylor his reaction to the lump sum approach versus the per student approach. Mr. Taylor said the lump sum approach under the SEEK add-on would be for school-age students because the preschool program is not funded through SEEK dollars. It is funded strictly through an amount of state dollars that are distributed to at-risk or disabled students. He said there needs to be more discussion concerning a lump sum payment to districts and the equitability factor to higher wealth districts. He said it is known that poverty is a contributor to low school performance and lower wealth school districts have higher numbers of children with disabilities.


            Representative Belcher asked if there is data that shows that Kentucky does a good job of identifying students who exit the special education program by age eight. Mr. Taylor said the KDE has data that shows a good number of students are reevaluated and are no longer categorized or labeled as developmentally delayed. They are normally placed in other health impairment or mild mental disability.


            Ms. Betty Gilpatrick and Ms. Melissa Justice, Kentucky Higher Education Assistance Authority, explained administrative regulations 11 KAR 4:080 - Student aid applications;11 KAR 5:200 - Go Higher Grant Program; and 11 KAR 18:010 - Robert C. Byrd Honors Scholarship Program. No action was taken on the regulations by the committee.


            Representative Stone asked if Kentucky homeschool students are formally compared with high school graduates outside of the ACT or SAT assessments for the Robert C. Byrd Honors Scholarship Program. Ms. Gilpatrick said she was not aware of any formal criteria comparisons. She said the ACT or SAT are part of the evaluation criteria and homeschool students must provide a certified transcript to be considered for the scholarship. Homeschooled students must also have a recommendation just like high school students. The independent panel has no way of knowing if it is a homeschool student or a high school graduate.


            Representative Rollins asked President Robert King and Dennis Taulbee, Legal Counsel, CPE, to explain Executive Order 2009-539 – Reorganization of the Council on Postsecondary Education. There were no questions and no action taken by the committee.


            Representative Rollins asked Mr. Kevin Brown, General Counsel, and Ms. Lynn Grant McNear, appointing authority, KDE, to explain Executive Order 2009-536 – Reorganization of the Kentucky Department of Education. There were no questions and no action taken by the committee.


            Mr. Tim Lucas, Division of Facilities Management, provided a brief overview of administrative regulation 702 KAR 4:160 – The Capital construction process. There were no questions and no action taken by the committee.


Ms. Brigid DeVries and Mr. Julian Tackett, KHSAA, explained administrative regulation 702 KAR 7:065 – Designation of agent to manage high school interscholastic athletics. Representative Graham asked how many coaches have been trained in the sports safety training and would like to hear an update on this issue at the August meeting. Ms. DeVries said about 1,900 coaches have been trained to date. She said the work is on-going and a final report will be prepared and presented to the committee in October.


Ms. Virginia Moore and Ms. Rowena Holloway, Kentucky Commission on the Deaf and Hard of Hearing, explained administrative regulations 735 KAR 1:010 and 735 KAR 1:020. There were questions and no action was taken by the committee.


President King and Mr. Kevin Noland provided the committee with background information on Senate Bill (SB) 1 that was passed in the 2009 regular session. Mr. Noland expressed to the committee that all timelines are on schedule under the legislation. President King asked Ms. Sue King, CPE, to give a brief update. Ms. King said the content standards workgroups are currently meeting and include KDE representation. Representative Rollins said there would be a more in-depth report on the status of the implementation of SB 1 at the next meeting due to time constraints.


Representative Richards noted his appreciation to Dr. Drake on behalf of the committee.


With no further business before the committee, the meeting adjourned at 3:20 p.m.