Recommendation - Use the standard age limit of nine years old described in Federal Regulations §300.8 to address the needs of children who are experiencing legitimate developmental delays.  Apply Early Intervening Services as designed by the Federal Regulations, §300.226(a) to reduce disproportionality in special education. 

Rationale - The rationale used to justify reducing the age of developmental disability to curb disproportionality counters federally established provisions to address disproportionality.  Funds are to be made available to specifically address disproportionality using early intervening services. 

1.      Current federal regulations discussion for §300.226(a) early intervening services state:

Excerpt from Federal Regulations

Federal Register / Vol. 71, No. 156 / Monday, August 14, 2006 /

Rules and Regulations

pages 46626/46627

Discussion: The Act does not restrict the use of funds for early intervening services only to LEAs that can demonstrate that all eligible children with disabilities are receiving FAPE. Section 613(f)(1) of the Act generally permits LEAs to use funds for early intervening services for children in kindergarten through grade 12 (with a particular emphasis on children in kindergarten through grade 3) who have not been identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment. No other restrictions on this authority, such as a requirement that the LEA first demonstrate that it is providing FAPE to all eligible children, are specified or appropriate. The authority to use some Part B funds for early intervening services has the potential to benefit special education, as well as the education of other children, by reducing academic and behavioral problems in the regular educational environment and reducing the number of referrals to special education that could have been avoided by relatively simple regular education interventions. Therefore, we believe the use of Part B funds for early intervening services should be encouraged, rather than restricted. In one instance, however, the Act requires the use of funds for early intervening services. Under section 618(d)(2)(B) of the Act, LEAs that are identified as having significant disproportionality based on race and ethnicity with respect to the identification of children with disabilities, the placement of children with disabilities in particular educational settings, and the incidence, duration, and type of disciplinary actions taken against children with disabilities, including suspensions and expulsions, are required to reserve the maximum amount of funds under section 613(f)(1) of the Act to provide early intervening services to children in the LEA, particularly to children in those groups that were significantly over-identified. This requirement is in recognition of the fact that significant disproportionality in special education may be the result of inappropriate regular education responses to academic or behavioral issues.

Early intervening services should be applied, as required in the federal regulations, to address disproportionality based on race and ethnicity.  The pending regulations are attempting to address disproportionality through reduction of the age limit.  Nowhere in the federal regulations does it suggest reduction in developmental delay for this purpose; however, federal regulations do state to use early intervening services.  Age nine is also the standard age limit given in the federal regulations when describing developmental delay.

2. 34 CFR 300.8 (b) states: “Children aged three through nine experiencing developmental delays. Child with a disability for children aged three through nine (or any subset of that age range, including ages three through five)”[emphasis added].

Please consider this federal guidance, implement proper application of early intervening services, consider the overwhelming public opposition to reduce the DD age limit - and establish a DD limit at nine years of age.  Change the definition for developmental delay to read:

"Developmental delay" means a disability affecting a child ages two by September 30 through six nine inclusive: (34 CFR 300.8(b); 34 CFR 300.306(b)).

• Additionally, I also support all comments made by the Virginia Coalition for Students with disabilities.
  

Sincerely,

Carl Brakman