The analysis, paid for by the Vermont-NEA, with organizations that represent public school superintendents, principals, school boards, and special education administrators, comes as the state is writing the regulations that will govern the implementation of Act 173, a massive reform to the state’s special education system.
The Vermont Agency of Education’s draft rules for the law have generated a substantial amount of debate. A 14-member panel, tasked in Act 173 with advising the state about the law’s multi-year rollout, voted nearly unanimously to ask lawmakers to delay the law’s start date by a year. (The only member of the group not to vote for the delay was Secretary of Education Dan French, who abstained.)
Lawmakers ultimately agreed to delay the law’s implementation. At the time, members of the panel chiefly argued that the agency’s rules were unclear, and that it appeared to be too thinly staffed to adequately lead the effort. But members of the panel have also argued, with increasing urgency, that the agency’s rules allowed for basically none of the added flexibility Act 173 was promised to deliver.
The reform law was passed last year to much fanfare, with the twin goals of addressing special education’s notoriously complex bureaucracy and ever-climbing costs. To do so, it transitions the state from a reimbursement model for funding special education to a census-block grant system, where a school receives a set amount in special education dollars based on its total student population.
The central logic behind the law was that more flexibility would allow schools to provide students with supports early – before they need more intensive interventions – and that in the long term, this could bend the curve on special education’s costs. Several officials with the organizations that ordered the report said they were concerned that the agency’s interpretation of what federal law allowed precluded any real innovation, and undermined the main point of the law.
“If we don’t have the shift in practice, it’s just less money for special ed. And that’s not going to get us to where we need to go,” said Traci Sawyers, the executive director for the Vermont Council of Special Education Administrators.
The report, written by the Federal Education Group, a Washington, D.C. law firm, goes further than arguing that Vermont could allow for more flexibility under Act 173. It argues that regulations in effect today are too restrictive, in part because the state defines special education too narrowly.
Vermont, according to the report, defines special education as “specially designed instruction that cannot be provided within the school’s standard instructional conditions or provided through the school’s educational support system.”
But that’s too limited a definition, the report argues, and apparently in contradiction with guidance from the U.S. Department of Education’s Office of Special Education Programs, which specifically says that services delivered as part of a district’s regular programming can be considered special education.
“The State’s definition of special education seems to require, or at least incentivize, that services for students with disabilities be separate from, and delivered outside of, regular classroom settings, which may prompt more restrictive placements than is necessary,” the report argues.
Karen Price, who represents the Vermont Council for Disability Rights on the Act 173 panel, said that, by and large, the conclusions appeared to validate a long-standing concern for advocates — that many kids are inappropriately found ineligible to receive services. She agreed Vermont’s current regulations could encourage segregating students with disabilities from the general curriculum.
“Having this report is really great, on many levels. Because it’s saying we need to be more generous with the criteria around eligibility so that kids can get the services they need,” she said.
In a statement, French called the report a “useful perspective” but said it “did not consider the decentralized structure of our education system.”
“I suspect the restrictive nature of our current regulations is no doubt the result of needing to ensure compliance with these important federal regulations across the diverse structure of Vermont’s education system,” he said.
French added he was “hopeful that our new regulations being designed to support the implementation of Act 173 will provide greater flexibility to districts.”
It’s unclear if this means the agency is considering reopening its draft rules. A spokesperson did not answer a follow-up question sent by a reporter.
