Education Assessment and Accountability Review Subcommittee




<MeetMDY1> August 8, 2005


The<MeetNo2> Education Assessment and Accountability Review Subcommittee (EAARS) met on<Day> Monday,<MeetMDY2> August 8, 2005, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Representative Harry Moberly, Co-Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Jack Westwood, Co-Chair; Representative Harry Moberly, Co-Chair; Senators Dan Kelly and Ken Winters; Representatives Jon Draud, Mary Lou Marzian, and Frank Rasche.


Guests:  Mr. Richard G. Innes, Bluegrass Institute for Public Policy Solutions; Mr. Clyde Caudill, Jefferson County Public Schools; Ms. Hilma Prather, Kentucky Board of Education; and Mr. Wayne Young, Kentucky Association of School Administrators (KASA).


LRC Staff:  Sandy Deaton, Audrey Carr, Janet Stevens, and Lisa Moore.


Representative Marzian made a motion to approve the minutes from the July 6, 2005 meeting, and Representative Rasche seconded the motion. The motion was approved by voice vote.


Representative Moberly introduced Dr. Bill Bush, Chair, Committee for Mathematics Achievement (CMA), that the legislature created by House Bill 93 in the 2005 Regular Session. House Bill 93 was a bi-partisan collaborative effort between the House and the Senate to add emphasis to improving mathematics instruction in the state.


Dr. Bush said the committee has 25 members and has met three times. Ms. Sarah Murray, Washington County, has been hired by the Kentucky Department of Education (KDE) to provide support for the CMA and KDE responsibilities as outlined in the legislation.


Dr. Bush said the CMA's initial charge was to develop a strategic plan for improving mathematics achievement in Kentucky. The committee has identified four general areas of need: 1) Create an environment for supporting high-quality mathematics instruction by enhancing the beliefs and attitudes of students, teachers, administrators, parents and community members about mathematics; 2) Enhance K-12 teachers' mathematics knowledge and ability to differentiate instruction to meet the needs of all students; 3) Enhance K-12 teachers' awareness of and access to effective mathematics resources, including curriculum materials, intervention and remediation programs, and technology, and provide teachers the support necessary to use the resources effectively; and 4) Increase the number of Kentucky teachers with expertise in mathematics and mathematics teaching through aggressive recruitment programs and support-based retention strategies.


Dr. Bush said the committee is currently identifying specific areas of focus within each need. The first is the supportive environment needed, and includes community and parent programs that provide support for teachers and students, and professional development to assist principals and other school administrators in evaluating and improving mathematics programs in their schools and districts. These strategies may be incorporated with existing programs such as the Prichard Committee, KASA, or Jefferson County Schools.


Dr. Bush said the second need is teacher knowledge. This prepares mathematics coaches to establish learning communities, conduct professional development on mathematics, differentiated instruction, and intervention and remediation programs. It also will improve mathematics courses for preservice and practicing teachers.


Dr. Bush said the third need is resources. This will develop a consumer report-like analysis of curriculum materials, intervention programs, and remediation programs to inform mathematics coaches. It prepares mathematics coaches to provide professional development to implement curricula and programs, and it pilots promising programs and gathers data.


Dr. Bush said the fourth need is recruitment and retention. This establishes middle and high school math clubs and future teachers' organizations, recruits talented mathematics students in two- and four-year postsecondary institutions, recruits persons working in mathematics-intensive fields, and prepares mathematics coaches in implementing research-based support programs for beginning teachers beyond the Kentucky Teacher Internship Program (KTIP) experience.


Dr. Bush discussed the immediate plans for the CMA. They are to: 1) have first draft of strategic plan completed by September; 2)  develop consumer report-like documents for curricula and programs by January; 3) establish a Center for Mathematics Achievement by January; 4) design summer institutes for mathematics coaches by May; 5) conduct summer institutes for mathematics coaches by August; and 6) establish pilot sites for differentiation, intervention, and remediation programs by fall of 2006.


Representative Moberly said he is pleased with the progress of the legislation. He thanked Senator Kelly for his leadership on the bill.


Senator Kelly said it is important for students in Kentucky to receive a math education as good as anywhere in the nation. He said early intervention is important to him. Dr. Bush said the pilot programs include the intervention. He said three interventions have been identified for early childhood programs: "Building Blocks," "Math Recovery," and "Number Worlds." His plan is to bring in the experts of these programs as well as intervention programs in middle and high school, and have them make presentations before the committee.


Senator Kelly wants the pilot programs to begin this fall.  Dr. Bush said the pilot programs were scheduled for the fall of 2006, but he can talk to the committee about trying to get started this fall. Senator Kelly said the funding that is available should be used to begin some experimentation.


Mr. Gene Wilhoit, Commissioner, KDE, said the three pieces of the math legislation are coming together. KDE had planned to get the first round of grants administered during the next semester so that they would be available during this school year. Senator Kelly said the KDE might not want to make the applications competitive for this year, but look at various areas and demographics and just choose sites.


Representative Draud asked how many math teachers in middle and high school are not certified. Dr. Bush said the numbers vary throughout the state, but Jefferson County has the highest need. Teachers who are not certified, however, should be working towards their certification.


Representative Draud said elementary teachers are only required to complete six semester hours of training to teach math. Dr. Bush said three to six depending upon the university. Representative Draud said teachers need adequate training and skills to teach math as this has been a continual problem. Dr. Bush said the exact numbers of teachers who need certification will be in the strategic plan because the Educational Professional Standards Board (EPSB) will provide this data.


Representative Draud asked if the "Math Counts" program in Northern Kentucky could be immulated in other schools across the state. He said the quality of the students in the program is amazing. Dr. Bush said there is an initiative in the state to teach rigorous math courses to get students to the same level as the students in the "Math Counts" program.


Senator Winters said he would consider performance indicators as well when choosing the pilot sites as well as looking at geographic areas. Dr. Bush agreed. He said sites that offer resistance need to pilot it as well in order to get accurate results.


Representative Moberly discussed intervention programs. Dr. Bush said he is open to the idea of beginning the pilot programs earlier than the fall of 2006. He does not want to impose this on schools two weeks before school starts, but if some schools are poised to use some of these intervention programs, they could go on and begin this school year. Representative Moberly said some schools had already started using the intervention programs. Dr. Bush said schools that have started using the program could be used as pilot programs.


Representative Draud said to identify schools that want to try this and be a pilot program. He said the schools needs to be receptive, and it would be wise to work through the P-16 councils. He said there is a lot of communication in Northern Kentucky between the universities, the high school math teachers, middle school math teachers, and elementary math teachers about where the gaps are in terms of instruction.


Representative Rasche said teachers need to know how children understand math. It does not necessarily matter how many math skills the teacher knows, but do they know how to teach children to understand math concepts.


Dr. Bush said the draft strategic plan would be ready in mid-September.


Mr. Kevin Noland, General Counsel and Deputy Commissioner, KDE, explained administrative regulation 703 KAR 5:001 in detail. He said the administrative regulation deals with assessment and accountability definitions. He said input was received from the School Curriculum Assessment and Accountability Council (SCAAC) and the Office of Education Accountability (OEA).


Mr. Richard Innes, Education Analyst, Bluegrass Institute for Public Policy Solutions, signed up to speak on the regulation. He told members that the definitions must comply with the No Child Left Behind Act (NCLB). He said there is a conflict with federal law with the proposed amendment in its current state. He also said he has identified a technical problem in the administrative regulation. He gave members a copy of his testimony on administrative regulation 703 KAR 5:001.


Mr. Innes said the amended 703 KAR 5:001 changes definitions of the meaning of "Adequate Yearly Progress" (AYP) that Kentucky uses to comply with the federal NCLB Act of 2001. These definitions of AYP are absolutely critical to NCLB reporting and must comply with federal law. Therefore, he believes the changes in 703 KAR 5:001 appear inappropriate as they conflict with provisions in NCLB. In addition, KDE's actual implementation of these changes conflicts with provisions in KRS Chapter 13A which govern the promulgation of administrative regulations.


Mr. Innes noted that there were also two technical changes, one which has been corrected. These defects may require a finding of deficiency for the regulation. These technical changes are explained in detail in the handout Mr. Innes provided to members in the meeting folder in the Legislative Research Commission (LRC) library.


Mr. Innes discussed the legal issues with the administrative regulation. He said  NCLB makes it clear that the academic standards to be applied must be the same for all schools. The new definitions of AYP seem to directly violate this provision in federal law because different standards are applied to different schools.


Mr. Innes used the Commonwealth Accountability Testing System (CATS) performance charts from two Kentucky middle schools to illustrate this problem. The two schools compared were Crittenden County Middle School and the Southern Leadership Academy Middle School in Jefferson County. There are very different CATS thresholds that apply to these schools, so it is quite possible that under KDE's new definition of AYP that Kentucky could send scarce resources to Crittenden County. This school scored above state average and Mr. Innes believes this is a poor use of limited tax dollars.


Mr. Innes said different standards were applied to Crittenden County Middle Schools and for Southern Leadership Academy Middle School. Thus, under the KDE's new rules, it is possible for Southern Leadership to achieve AYP on this part of NCLB with a far lower score than Crittenden County needs. So, these two schools face tremendously different academic standards under Kentucky's NCLB rules. Mr. Innes said this clearly violates NCLB requirements for common academic standards for all schools.


Mr. Innes said the KDE said that they had received verbal approval for these changes from the United States Department of Education (USDOE) during the Kentucky Board of Education (KBE) meeting on August 4, 2005. However, the KDE does not have a letter in hand, so it is not clear exactly what the USDOE has really accepted.


Mr. Innes spoke with Mr. David Harmon at the USDOE. He was not aware of a request from the KDE to change Kentucky's AYP formula to allow schools in the progressing category to automatically be excused form NCLB sanctions. He additionally indicated that the USDOE does not have the authority to override the NCLB requirement that requires all schools to meet the same academic standards.


Mr. Innes also noted that if the KDE's scoring change was not fully approved, including the changes on handling progressing schools, then required federal approval for changes to the Kentucky NCLB workbook was not obtained either. This is a separate violation because KDE is under a warning from the USDOE not to make unauthorized NCLB changes.


Mr. Innes said another legal problem with the regulation concerns a question about the requirements for promulgation of a Kentucky regulation. His understanding after reviewing several parts of KRS Chapter 13A and after talking with LRC staff is that, unless an emergency is declared, regulations do not become effective until after they are reviewed by at least two legislative committees. This regulation would have to be approved through the EAARS and the Interim Joint Committee on Education (IJCE). He said the legislative calendar for August does not allow the two reviews to be completed prior to August 29, 2005. This means the old rules that governed the 2004 NCLB scoring are still in effect and cannot be changed until the end of the month. However, the KDE already scored the 2005 NCLB results using the new rules, and the results were already released on August 2, 2005. Technically, because the old regulation was still in effect, scoring with the new rules violated the existing regulation.


Mr. Innes discussed the situation with Mr. Noland on August 4, 2005. He replied that since this was a response to federal law, that only federal approval was required. He cited wording in KRS Chapter 13A, which he believes the KDE used its new scoring definitions before they were approved by regulation, and feels this amended regulation should be declared null and void.


Mr. Innes said the entire situation may place Kentucky in an uncomfortable position. If scoring changes have been made improperly, parents would have a right to demand that the scores be recalculated using the 2004 rules. He said the rescoring would almost certainly result in more schools failing to reach AYP than were reported by the KDE on August 2, 2005. Using the old rule, 160 schools failed to make AYP last year. This year, the KDE reported only 31 schools failed to make AYP using the revised rule.


Mr. Innes said in fairness to all parties, and to maintain credibility in the system, he suggested several actions. They were: 1) The EAARS should direct the LRC's OEA to determine exactly what the legal and policy situation really is and whether the changes made by the KDE are really in the best interest of children. If necessary, the LRC should research precedents for corrective actions when states agencies violate the rules for administrative regulations; 2) LRC should provide the EAARS with recommendations for dealing with this highly unusual situation. Prompt action may be required to avoid expensive sanctions by the federal government; 3) The EAARS should also request the KDE to provide a list of schools that would have different NCLB determinations if last year's scoring policy had been maintained in 2005. It would be well for the KDE to begin this analysis pending the OEA's findings per the first suggested action. It may be necessary to use the results of this effort to release a corrected 2005 NCLB report, and time could be critical.


Mr. Innes asked the subcommittee to defer a vote on this administrative regulation until the legal problems and the technical error are corrected and in full compliance with federal law.


Mr. Noland said this issue began when Ms. Margaret Spellings became the new Secretary for the USDOE, and made announcements about being more open to offering flexibility to states in meeting NCLB requirements. He said Kentucky is very far from losing any federal funding. He said the Education Commission of the States (ECS) found Kentucky in the top five states in compliance with NCLB.


Mr. Noland invited Mr. Innes to contact him anytime with concerns and to get involved in the process earlier. Mr. Noland said he could have provided him with a copy of the amended state plan that was filed with the USDOE that included this particular change, as well as the correct person to contact in the USDOE that has granted the approval.


Mr. Noland said this is not an easy standard, and the KBE is not trying to gain anything from changing these definitions. The easiest way to gain in the NCLB legislation is to change the definition of proficiency because the central point of the Act is getting all students to reach proficiency. He said it is left up to the states to define proficiency, and some states have lowered their definition of proficiency in order to look better for NCLB, but Kentucky has not done this. The KBE stood firm with Kentucky's current definition under CATS for proficiency, which is a rigorous standard with high expectations for students.


Mr. Noland said results released last week indicated that only 46 percent of Kentucky school districts met the AYP under NCLB. There are many states showing higher percentages based upon those other states definitions of proficiency, Kentucky is about in the middle. This shows that Kentucky is not trying to "game" the system. He asked the members for their favorable approval in this small amendment in the administrative regulation.


Mr. Innes responded to Mr. Noland's comments. He said he has communicated with Mr. Noland in a timely manner, and as a result, two companion regulations were omitted from the agenda because of his comments on the same changes. He said the regulations had a public comment period that ran all the way up to August 1, 2005. The KDE published a NCLB report less than 24 hours later, which meant that comments made on the regulation would have been ignored.

Mr. Innes also said that Kentucky did change its proficiency rates in 2000 when the CATS scoring was realigned. He said he does not think Kentucky could lower the standards anymore without totally running the CATS credibility into the ground.


Mr. Noland said this situation was handled in the same manner as last year. The USDOE offered additional flexibility and they intended for states to apply it to current year results, and that is what Kentucky did.


Representative Moberly invited Ms. Hilma Prather, Chair, KBE, to come to the table. Ms. Prather concurred with Mr. Noland's comments, and said Kentucky strives to maintain a system that complies with high standards. She said the administrative regulation offers flexibility in response to superintendents' concerns across the state. This small component of the definition required Kentucky to go back and use information over a year old, and she did not want districts discouraged who were having to use information that is outdated. She said it was important to continue to include seven content areas in Kentucky's information for NCLB to maintain the breadth of the curriculum, and not narrow the focus to just reading and math.


Ms. Prather said contrary to what Mr. Innes says, the new definition does not allow school systems to meet AYP. There are three criteria that schools must meet in order to obtain AYP. These are: 1) meet their annual measurable objectives; 2) meet their participation rate; and 3) meet another academic indicator.


Senator Winters asked why the two administrative regulations were pulled that would have normally been before the committee today. Mr. Noland said the statutory process on a legislative committee reviewing regulations states that normally the two other regulations would have been on the agenda as well. He said one dealt with determining school accountability, and the other regulation deals with district level accountability. He explained the 30-day period to receive comments on a regulation after the public hearing, and said KBE responded to the statement of consideration last Friday, August 5, 2005. The statute clearly says when comments are received, this automatically defers the regulations until the next meeting. This statute applies to any regulations by any agency, and is bigger than any committee. He said this means the next two administrative regulations would have to be heard at the next EAARS meeting in early September.


Mr. Innes said since the subcommittee has to wait until early September to hear the other two regulations in any event, he suggested deferring the vote on the administrative regulation today and take them up as a group. He said this gives OEA a chance to look into his concerns to find out if there are problems.


Representative Draud asked what the implication is if the regulation is not approved at today's meeting. Mr. Noland said he would like to go on and get this in regulation as it has implications on how KDE implements the program.


Mr. Innes said the scores are already published and he does not see where there is any harm in delaying the vote on the regulation. The action has already been taken without the EAARS consent.


Representative Draud discussed the comparison of the two middle schools. It is a concern that the Kentucky Education Reform Act (KERA) in regards to testing was to show progress in Kentucky schools. He said the new NCLB legislation came after KERA was implemented. He asked for suggestions on how to deal with this problem. He said it seems that Kentucky has better standards than the NCLB legislation.

Mr. Innes said he has several suggestions to correct the problem. He said using the CATS as an additional indicator is a very good idea. He said the problem is using the CATS accountability index classifications as the threshold of whether schools can bypass the AYP requirement in NCLB. He said Kentucky should have developed a similar, uniform scale for all schools to meet. This is federal law, and Kentucky has to comply.


Ms. Prather said 38 states have chosen to take a "get out of jail free card" from the requirements of NCLB by making their other academic indicator attendance. The KBE absolutely refused to have schools be given that opportunity on the other academic indicator. In addition, Kentucky is assessing seven content areas, and not two, for the other academic indicator. She said Kentucky is holding its schools to a very high standard. She also said under the annual measurable objectives, there are 16 categories in this area alone that schools have to show progress on by the time all the potential subgroups are added.


Representative Draud asked what the real issue is that Mr. Innes has. Does he feel that the KDE is trying to "game" the system? Mr. Innes said it is difficult to know all of the things that KDE is thinking about, so therefore he can just judge by the actions that have been taken. He said 160 schools failed last year under the old rules for the AYP category, and 31 schools failed this year under the new rules. Is this an improvement, or was it an attempt to excuse ten percent of the schools? He complimented the KBE on being much more open than they were even two or three years ago.


Senator Westwood asked Mr. Noland if he had a letter from the federal government that states that this change is not in violation, and is acceptable. Mr. Noland said Kentucky has submitted an amended state plan under the NCLB Act that included this particular change being discussed today. He said the contact person, Ms. Darla Marburger, called and told Mr. Noland that the plan was approved, and KDE will be getting written confirmation this week.


Senator Westwood said another concern is that the definition was used before it had the opportunity to be reviewed by EAARS, as well as IJCE. He would like to defer the vote on this regulation until the subcommittee can hear from the OEA.


Senator Westwood said it appears to him that the regulation has been enacted illegally. He would like to see the numbers from KDE for the schools if they were rescored using the old system instead of using the revised system. He said it is an issue if there are still low performing schools that the committee is not aware of.


Mr. Noland said they will get the data to Senator Westwood using the scoring system with the 2004 concepts and rules. He said this data will show that it is still dealing with the minority of the number of schools in Kentucky that it impacted.


Mr. Noland said KDE has gone through the right federal process to get approval for the changes. He said KDE tried to get approval from the subcommittee in June, but the agenda ran too long. He said the issue has been legally handled. He said KDE believes it is important to bring any federal issue before the EAARS committee. He said in terms of process, this was handled no differently than last year. He said the  USDOE intended for states to use the new flexibility for current year results. He said next year it could be handled differently, but unlike other states, Kentucky will lag one year behind implementing changes and flexibility offered than the other states.


Senator Westwood asked Mr. Noland how he interpreted KRS 13A.120, Paragraph (1) (b). that says: "An administrative body that promulgates an administrative regulation required by federal law or federal regulation shall comply with the provision of this chapter." Mr. Noland said Kentucky is still trying to comply with it, and that is why it has been put into the regulation. He said there are no schools or districts that come out losers due to this change, and the few it does impact, it does so in a beneficial way.


Mr. Innes said it does impact individual interests of parents and students. He said the constituents need to be considered, not just the schools and districts.


Representative Moberly asked Mr. Noland if this administrative regulation was to use flexibility offered from the USDOE, and to bring closer alignment between NCLB and CATS. Mr. Noland said that was correct. Representative Moberly told Mr. Innes that he did not believe anyone's interests were being harmed, and that Kentucky has tried to coordinate and adhere its assessment to NCLB. He said some states are suing, and refusing to comply with NCLB, even at the risk of losing their federal funding, but it has been a completely different attitude in Kentucky.


Representative Rasche pointed out a punctuation error in the regulation. He also asked if demonstrated growth and accountability index that are above the state average are referring to points or percentage. Mr. Noland said the assumption was any growth which would include a tenth of a point.


Representative Moberly told Mr. Noland to make any needed technical changes to the regulation before the IJCE meeting.


Representative Draud said he believes the commissioner and everyone at KDE and KBE have the best interest of children at parents at heart. He did ask what the harm would be in delaying a vote on the regulation until the next meeting. He said Mr. Innes should be commended as well for doing a lot of work and study on the issue.


Representative Moberly said if the EAARS committee is going to take any action on this administrative regulation it has to do so by August 15, 2005. He said any problems can be corrected before the regulation is reviewed by the IJCE committee on August 29, 2005.


Representative Marzian made the motion to approve administrative regulation 703 KAR 5:001, seconded by Representative Draud. The motion was approved by voice vote with Senator Westwood voting nay.


Senator Westwood requested that the KDE and the OEA meet about the legality of the regulation to ensure compliance with federal law.


Representative Mobery said per Senator Westwood's request, and pending KDE receiving the letter of approval from the USDOE, Ms. Seiler and OEA staff are to meet with the KDE to research the legality of the regulation. He told Mr. Noland to let the committee know when he receives the letter. Mr. Noland said he would share a copy of the letter with the committee.


With no further business before the committee, the meeting adjourned at 11:45 a.m.