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to School on Civil Rights
III.
Grant Administration, Compliance Monitoring, Complaint Handling, and
Enforcement Functions
A. Grant Administration
B. Oversight: Federal Monitoring of States
C. Oversight:
Complaint Handling
D. Enforcement
The legal authority for the Department
of Education (DoED) to ensure compliance with the Individuals with Disabilities
Education Act (IDEA) is found in provisions of the statute itself that
authorize assessment of policy and procedure documents to determine
state eligibility for funding,[85] referral of a state to the Department
of Justice, and withholding funds when a state has failed to comply
substantially with any provision of Part B of IDEA.[86]
The key activities that the Office of Special
Education Programs (OSEP) carries out in relation to monitoring state
compliance with the law are (1) determining state eligibility for federal
grants under IDEA, (2) conducting on-site monitoring visits and issuing
monitoring reports, (3) developing corrective action plans and overseeing
the implementation of those corrective actions ordered by OSEP, and
(4) initiating enforcement action. This part discusses these core federal
functions of IDEA implementation oversight.
A.
Grant Administration
1. The Basic State Grant Program
IDEA '97 requires the states to submit applications
that ensure "to the satisfaction of the Secretary" that they have policies
and procedures that meet the conditions of federal law.[87] These conditions
include (1) access to a free appropriate public education (FAPE),
(2) individualized education programs (IEP), (3) least restrictive
environment (LRE), (4) procedural safeguards, (5) evaluations,
(6) general supervision by the state education agency (SEA),
(7) a comprehensive system of personnel development, (8) personnel
standards, (9) performance goals and indicators, and (10)
participation in assessments.[88]
Before the enactment of IDEA '97, a state
plan was submitted to OSEP every three years to determine eligibility.
States were required to submit assurances that they were complying with
the various requirements during the three-year interim period. IDEA
'97 no longer specifically requires a state plan, and one submission
of policies and procedures information, if accepted, remains in effect
indefinitely. Modification of a state eligibility document may be required
if (1) the state determines that a modification is required, perhaps
because of changes in state law or regulations; (2) there is a change
in IDEA by amendment or a new interpretation of IDEA by a federal court
or a state's highest court; or (3) there is an official finding of noncompliance
with federal law or regulations. When the Federal Government requires
a modification of the application, it need only be to the extent necessary
to ensure the states' compliance with the part of the law that is newly
amended, interpreted, or out of compliance, not the entire law or larger
portions of the law.[89]
For FY 1997, OSEP did not require states
to submit a detailed application, as the reauthorization of IDEA was
imminent and significant changes in the law were anticipated. OSEP thought
it would be prudent to wait until the new law was enacted. The reauthorization
was not complete until June 1997, and the regulations to implement the
new law were not finalized until March 12, 1999. Thus, since 1997, OSEP
has allowed states to receive their funding by signing assurances that
they would comply with existing federal law. In 1997, after the law
was reauthorized, OSEP sent all states a packet explaining the requirements
of IDEA '97. Beginning in 1998, OSEP gave states the option of submitting
an application or signing a statement of assurances. One state, Wisconsin,
submitted an application, which was approved. All of the other states
have signed and submitted assurance statements to OSEP for fiscal years
'97-'98, '98-'99 and '99-'00.[90]
OSEP generally notified the states of information
that would be due about three months prior to the actual due date. Every
state had to allow a 60-day public review period for the eligibility
documents prior to submitting them to OSEP. States could publish notices
of availability in newspapers, distribute them in libraries, etc. The
due date to the Federal Government was generally April 1 or May 1. OSEP
took two to three months to review the documents and generally awarded
funds by July 1 of the same year.
States submitted an original and two copies
of their documents to the Monitoring and State Improvement Planning
Division (MSIP). MSIP staff logged them in, keeping one copy in a central
file and giving copies to two readers, a primary and a secondary reader.
The primary reader was generally the person assigned to that state as
the "state contact" for monitoring, technical assistance, etc. This
person was to be familiar with any monitoring issues in that state.
Both readers read the documents with a checklist to determine if the
required elements were present. The readers met with the team leader
and discussed the documents. The team could choose to coordinate its
review with other divisions in DoED and provide the state technical
assistance if needed to amend the application. If there were significant
problems with the application, the Office of General Counsel (OGC) could
become involved. If the team agreed to recommend approval, the application
was eventually approved by the director of OSEP, and an award was sent
to the state. If the team did not recommend approval, the state was
given reasonable notice and an opportunity for a hearing in accordance
with the statute before the Secretary of Education made a final determination
of ineligibility.[91]
In the past, OSEP may have given "full"
or "conditional" approval of the state plan. Full approval implied that
the state had satisfied the Department of Education that the necessary
policies and procedures to carry out IDEA were in place. Conditional
approval indicated that, while a policy or procedure was not in compliance
with IDEA, the state had assured that the practice of the state was
in compliance. For example, a state may have needed to change a state
law to come into compliance; however, such a change may not have been
possible for more than a year, since the legislature meets only every
other year. OSEP would have provided conditional approval to such a
state after it assured DoED that it was following the federal law and
working to change the state law. Both conditional and full approval
provided for full funding to the state.
As Table 2 indicates, states frequently
received conditional approval of their plans. However, in the last year
during which plans were submitted to OSEP, '95-'96, fewer conditional
plans and more fully approved plans were in evidence. For FY '93-'94,
the status of plans was as follows: 31 plans were fully approved and
27 were conditionally approved. For FY '94-'95, 43 plans were fully
approved and 15 were conditionally approved. For FY '95-'96, 46 plans
were fully approved, 10 were conditionally approved, and 2 received
a "not applicable" ranking.[92] The percentage of fully approved state
plans rose from 53 percent in FY '93-'94 to 74 percent in FY '94-'95
to 82 percent in FY '95-'96.
Table 2: Status
of Approval of IDEA Part B State
Plans/State Plan Reviews
| States |
95-96 |
94-95 |
93-94 |
| Alabama |
F |
C |
F |
| Alaska |
F |
F |
F |
| American Samoa |
F |
F |
F |
| Arizona |
F |
F |
F |
| Arkansas |
F |
F |
C |
| California |
C |
C |
C |
| Colorado |
F |
F |
F |
| Connecticut |
F |
F |
F |
| Delaware |
F |
F |
C |
| District of Columbia |
C |
C |
C |
| Florida |
F |
F |
F |
| Georgia |
F |
F |
C |
| Guam |
F |
F |
C |
| Hawaii |
F |
C |
C |
| Idaho |
F |
F |
F |
| Illinois |
F |
F |
C |
| Indiana |
F |
F |
F |
| Iowa |
F |
F |
F |
| Kansas |
F |
F |
C |
| Kentucky |
F |
F |
C |
| Louisiana |
F |
F |
C |
| Maine |
C |
C |
C |
| Maryland |
F |
F |
C |
| Massachusetts |
F |
F |
C |
| Michigan |
C |
C |
C |
| Minnesota |
F |
C |
C |
| Mississippi |
F |
F |
F |
| Missouri |
F |
F |
F |
| Montana |
F |
F |
F |
| Nebraska |
C |
C |
F |
| Nevada |
F |
C |
C |
| New Hampshire |
F |
F |
C |
| New Jersey |
F |
C |
C |
| New Mexico |
F |
F |
F |
| New York |
F |
F |
F |
| North Carolina |
F |
F |
F |
| North Dakota |
F |
F |
F |
| Northern Mariana Islands |
F |
F |
F |
| Ohio |
C |
C |
C |
| Oklahoma |
F |
F |
F |
| Oregon |
F |
F |
F |
| Pennsylvania |
F |
F |
C |
| Puerto Rico |
F |
F |
F |
| Rhode Island |
F |
F |
F |
| South Carolina |
F |
F |
C |
| South Dakota |
F |
F |
F |
| Tennessee |
C |
C |
F |
| Texas |
F |
C |
C |
| Utah |
F |
F |
F |
| Vermont |
F |
F |
C |
| Virgin Islands |
Consolidated |
| Virginia |
C |
F |
C |
| Washington |
F |
F |
F |
| West Virginia |
F |
F |
F |
| Wisconsin |
C |
F |
F |
| Wyoming |
F |
F |
F |
| Marshall Islands |
NA |
F |
F |
| Federated States of
Micronesia |
NA |
C |
C |
| Republic of Palau |
C |
C |
C |
C = Conditional Approval, F = Full Approval,
NA = not applicable due to changing legal status.
The reasons for the increase in states
being fully approved are not readily apparent. An inquiry and analysis
beyond the scope of this study may provide an explanation for this shift.
2. Competitive State
Program Improvement Grants
The 1997 IDEA amendments included a new
discretionary program titled State Program Improvement Grants for Children
with Disabilities.[93] The purpose of these grants is to assist states,
in partnership with a range of stakeholders in the states, in reforming
and improving their systems that serve students with disabilities. Congress
appropriated $35.2 million for these grants in FY '99. The grants will
be awarded to states on a competitive basis, in the range of $500,000
to $2 million per year. The first awards were made in January 1999.
Seventy-five percent of the funding received under these grants must
go for personnel preparation.[94]
The statute outlines the analyses the state
must conduct in developing a state improvement plan. That analysis must
include the major findings of the most recent federal reviews of state
compliance as they relate to improving results for children with disabilities.[95]
The law also requires that the state improvement plan include improvement
strategies, one of which must address systemic problems identified in
federal compliance reviews.[96]
Although it is not yet clear how competitive
state grants will affect state compliance with IDEA, they are intended
to create an incentive toward the systemic changes a state must implement
to achieve full compliance with IDEA.
3. Findings
and Recommendations
Finding # III A.1
Many states are found eligible for full funding under Part B of IDEA
while simultaneously failing to ensure compliance with the law.
Though no state is fully ensuring compliance with IDEA, states usually
receive full funding every fiscal year. Once eligible for funding, a
state receives regular increases, which are automatic under the formula.
OSEP's findings of state noncompliance with IDEA requirements usually
have no effect on that state's eligibility for funding unless (1) the
state's policies or procedures create systemic obstacles to implementing
IDEA, or (2) persistent noncompliance leads OSEP to enforce by imposing
high risk status with "special conditions" to be met for continued funding.
Recommendation # III A.1
The Department of Education should link a state's continued eligibility
for federal funding under Part B to the remedy of any noncompliance
within the agreed upon time frame.
When a state is found out of compliance with the law via federal
monitoring, continued eligibility for IDEA funding should be linked
with achieving compliance within a designated time frame. The state
corrective action plan or compliance agreement should spell out what
must be done within a specific time frame to achieve compliance or the
state will be found ineligible for all or part of the available grant
money for the next fiscal period.
Finding # III A.2
The competitive State Program Improvement Grants are intended to
make funding available to states for implementing improvement strategies
to correct IDEA noncompliance problems.
Recommendation # III A.2A
OSEP should require that five percent of funds awarded under the
State Program Improvement Grants be applied toward developing a statewide
standardized data collection and reporting system for tracking the core
data elements needed to measure state compliance with IDEA and evaluate
educational results for children with disabilities.
Recommendation # III A.2B
When a state is found out of compliance with the law via federal
monitoring, continued eligibility for State Program Improvement Grant
funding should be linked with achieving compliance within a designated
time frame.
B.
Oversight: Federal Monitoring of States
1. Purpose of Monitoring
States are regularly monitored by OSEP.
Such monitoring includes on-site visits, data collection and analysis,
and the issuance of an official report. This basic monitoring process
has undergone periodic changes since the enactment of IDEA. As noted
in the review of annual reports below, the purpose of monitoring has
shifted over the years depending on the context in which it was carried
out. The law states that the Federal Government's role is one of monitoring
the states to ensure their implementation of the law. Indeed, much of
the responsibility for compliance lies with the states in their responsibility
to monitor the local education agencies (LEAs). The Federal Government
has increasingly looked to the states to take on this role and gradually
redefined its role as one of partnership with the states. In fact, the
IDEA amendments of 1997 strengthen the expectation that the states will
monitor the LEAs. The statute holds that states are expected to reduce
or withhold payments to LEAs if they are found to be out of compliance
with the law.[97] For the first time, in 1998, the Federal Government
took enforcement action against a state for not taking effective
enforcement action against an LEA found to be out of compliance (see
discussion of Pennsylvania as a high risk grantee).
OSEP claims its approach to monitoring
has had significant positive impacts on compliance in a number of states.
For example, the state educational agency (SEA) in some states has taken
action to correct deficient practices identified by OSEP during the
monitoring review, even before the state has received OSEP's report.
In such instances, the states' solutions have often incorporated technical
assistance provided by OSEP during the monitoring visits. According
to OSEP, a number of states also have made positive changes, at least
in part because of the emphases and findings of OSEP monitoring, in
two important areas: (1) state monitoring and complaint resolution procedures,
and (2) the movement of many children with disabilities from separate
settings into less restrictive placement options.[98]
OSEP currently describes its monitoring
as shifting from being procedurally oriented to being results oriented.[99]
The purpose of monitoring as defined by OSEP today is to improve results
for children with disabilities.[100] As mentioned earlier, OSEP has
redesigned its monitoring process (see Appendix H) to be a component
of what it calls a "state review and improvement process" where the
state is a collaborator with the Federal Government and other constituencies
to assess the educational success of students with disabilities and
to design and implement steps for improvement.[101] There appears to
be a shift away from monitoring used solely as a tool for obtaining
compliance toward monitoring used as a tool for both program improvement
and compliance.
2. The Decision
About What to Monitor
OSEP is responsible for ensuring that states
are in compliance with IDEA. The requirements of IDEA are numerous and
not every requirement is monitored in every state on every monitoring
visit. Neither are the same requirements monitored for the same state
over time. However, as the analysis below of the most recent monitoring
reports (1994-1998) indicates, there does appear to be a relatively
stable set of requirements that are monitored. The decision about exactly
what to monitor in a state during a particular monitoring visit appears
to be determined by the team doing the monitoring based on their analysis
of the information they collect about the state.
A 1995 memo from Thomas Hehir, director
of OSEP, to Chief State School Officers indicates that monitoring and
corrective action plans will be focusing on requirements that have the
most direct relationship to student results. These requirements are
identified as (1) access to the full range of programs and services
available to nondisabled children, including regular and vocational
education programs and curricula and work-experience programs; (2) individualized
education programs, including statements of needed transition services
for students age 16 and younger, if necessary; (3) education of students
with disabilities in the regular education environment and the availability
of a continuum of alternative placements; and (4) state systems for
general supervision including complaint management and due process hearing
systems.[102]
3. The
Monitoring Cycle
For 1997-1998, OSEP conducted implementation
planning visits in lieu of monitoring visits. The purpose of these visits
was to provide technical assistance to states on the requirements of
the new law. OSEP began monitoring with the new continuous improvement
monitoring process in the fall of 1998. Before IDEA '97, states were
on a four-year monitoring cycle. Every year 12 to 15 states were monitored.[103]
The monitoring cycle described and the monitoring reports analyzed below
predate the changes OSEP implemented in the fall of 1998.
4. The Monitoring
Process Before the Fall of 1998
The monitoring process took place in four
phases: pre-site activities, the on-site visit, the issuance of the
report, and the corrective action plan.
a. Pre-Site Activities
Approximately three to six months before
an on-site visit, OSEP took the following steps: (1) scheduled public
meetings and on-site visit dates with the state, (2) informed interested
parties of the meeting dates and sites, (3) requested documents from
the state for review, (3) held public and outreach meetings in the state
to gain input, (4) determined issues to be reviewed and established
a schedule for interviews with the SEA, (5) selected agencies and schools/programs
to be visited, (6) contacted local sites, (7) established schedules,
and (8) requested documents. Monitoring staff were usually in the state
for about one week for the pre-site activities.
Beginning in 1994, OSEP began conducting
outreach meetings in addition to public meetings, which were open forums.
These meetings were by invitation only and included disability leaders
in the state, representatives of the Parent Training and Information
(PTI) centers and the Protection and Advocacy (P&A) systems. Generally
about 12-20 disability leaders from the state attended the meetings.
Attendance at the public meetings ranged
from five to 200. Between one and six public meetings were held in different
geographic locations in a state, at different times of the day. SEA
mailing lists, and sometimes lists from PTIs or other advocacy groups,
were used to send "interested party" invitations to the meetings.
After the pre-site activities, in preparation
for the site visit, the monitoring staff analyzed the information collected
in the state and gathered and considered additional relevant information
obtained from (1) complaints received by OSEP about the state and its
policy and procedures, and (2) contacts with the Office for Civil Rights
(OCR), the Rehabilitation Services Administration (RSA), and advocacy
groups within the state. All of this information was used to determine
what issues were to be examined and where the on-site visits were to
take place.
b. The On-Site
Visit
The on-site visit usually lasted a week
and took place about five to six weeks after the pre-site activities.
Six to ten people made up the monitoring team. The on-site visit involved
meeting with officials of the SEA and visiting LEAs, including schools.
The monitoring team used the information gathered from the pre-site
activities to determine which LEAs to visit. It considered when the
state last monitored the LEA, and chose some LEAs that had been recently
monitored by the state and some that had not been monitored for a long
period of time. It looked at the results of the SEA monitoring and compared
them to its own results. If the team saw differences that hadn't been
corrected, it knew the states were not enforcing the corrections. If
it found deficiencies that the state monitoring had not found, there
was an indication that the state monitoring system was not effective
in identifying deficiencies.[104]
In smaller states, the monitoring teams
usually visited four or five LEAs. In larger states, the teams visited
eight to 10 LEAs. The LEAs were notified by the SEA two to three weeks
in advance that the monitoring team would be visiting. The team tried
to have geographic diversity in its visits and took special populations
into consideration. It looked at LEA data regarding placements in separate
settings, personnel, related services, etc. The data may have revealed
problems in the LEA that the team may have pursued while visiting there.
The team tried to visit elementary schools, middle schools, and high
schools. It met with administrators, looked at student records, and
interviewed teachers. It did not observe students or compare the students'
records to the students' experience.[105]
The team members in the field talked with
the team members at the SEA to discuss data collection and potential
findings. An exit conference was held with the SEA to present the preliminary
findings.[106]
c. The Monitoring
Report
The monitoring team returned to Washington,
DC, and worked together to analyze the data they had collected and the
results of the monitoring visit. The team might call the state back
to request clarification or additional information. The report was developed
and reviewed by the team leader, the division director, the director
of OSEP, and the OGC. The report was cleared and issued to the Chief
State School Officer with a copy sent to the director of special education
in the state.
The intended time line for the issuance
of the report was 150 to 180 days after the on-site visit.[107] Analysis
of the most recent monitoring reports for each state revealed that the
time elapsed between the monitoring visit and the final report was greater
than 90 days for 45 states, greater than 180 days for 27 states, and
greater than 365 days for 12 states.
In the past, OSEP issued draft reports
to the states, and the states could then respond and defend their response.
OSEP would consider their response and might make changes in the report
based on that response. OSEP eliminated this practice with the 1994-95
monitoring cycle. It began issuing only the final report. The state
had 15 calendar days from the date it received the report to submit
a letter to OSEP documenting findings in the report that were without
legal or factual support. If OSEP determined that it was necessary to
delete or revise a finding, a letter setting forth the deletion or revision
was appended as part of the report.[108]
d. Corrective Action
Plans
In every monitoring report that documented
findings of noncompliance (which were all monitoring reports), parameters
for a corrective action plan (CAP) were set forth. OSEP was available
to work with the state to develop the plan. The plan was to be submitted
to OSEP within 45 days of receipt of the report. If the state did not
submit a plan, OSEP unilaterally would develop the CAP for the state.[109]
(OSEP reported that to its knowledge this circumstance never occurred.)[110]
The time line for completing a corrective
action plan ranged from one to three years, with the average being two
years. The deadline depended on the nature of the deficiency, as correction
for some might take significantly more time than for others.
Follow-up visits might be conducted to
determine the implementation of the CAP. For some states, submission
of documentation might be the follow-up. Generally, OSEP reported that
it conducted four to six follow-up visits per year to assess CAP implementation.
Generally, follow-up visits were similar
to mini on-site visits. The follow-up team comprised two to three people
who visited the state office for about two days and LEAs for about two
days. If OSEP determined that the corrective action plan had been implemented
and was effective, it closed out the plan. In situations where OSEP
found little or no change, it scheduled another follow-up visit. In
two situations (Pennsylvania and New Jersey) where the second follow-up
visit found continued noncompliance, the states were designated as high
risk grantees (see earlier discussion).
e. OSEP's Maintenance
of Monitoring Reports and Records Regarding Monitoring Reports
OSEP's policy was to keep monitoring records
related to IDEA for three to five years.[111] Thus, OSEP appeared to
have very few monitoring reports more than five years old, nor did they
have an inventory listing that reported which ones they possessed and
which ones they did not. This study initially requested a complete set
of reports for 11 states, going back in time as far as DoED had records.
Because of the limited availability of reports, this request was modified
to include only six states. For one state, Illinois, the oldest report
DoED had was from 1991. For other states, some reports were missing
(for example, while DoED had the 1983 report from New York, it did not
have the 1987 report). There was no chronology of monitoring over time
in OSEP.
5. Analysis of Fifty
Federal Monitoring Reports
Little research on state compliance with
special education requirements over time has been conducted. NCD was
aware of only one study that had examined compliance trends. That study,
released in1993 by the National Council on Disability, disaggregated
OSEP state monitoring data collected from April 1989 to February 1992
to the school district level. The study revealed very high levels of
school district noncompliance as noted in Table 3 below.[112]
Table 3: State
Monitoring Data (Reprint from NCD Study)
| Requirement |
Districts Monitored |
Districts in Noncompliance |
Percentage in Noncompliance |
| IEP |
165 |
150 |
90.9% |
| LRE |
165 |
143 |
86.7% |
| Procedural Safeguards |
165 |
152 |
92.1% |
Note: IEP = Individualized Education
Program; LRE = Least Restrictive Environment
The analysis below, based on a study of
the most recent OSEP monitoring report issued for each state, summarizes
the findings of noncompliance for each state in seven areas.
a. Methodology
The most recent OSEP monitoring report of
every state was reviewed and analyzed. These reports were issued between
1994 and 1998. Seven key areas of legal requirements were analyzed for
each state: (1) FAPE, (2) LRE, (3) IEP, (4) transition, (5) general
supervision, (6) procedural safeguards, and (7) protection in evaluation.
These were requirements that OSEP had chosen to monitor in most of the
states, which had been monitored fairly consistently across states over
time.
b. Standards Used
by OSEP for Determining Noncompliance
It should be noted that the charts and tables
throughout this section depict findings of noncompliance in the indicated
areas for each state, but not the extent of noncompliance represented
by that finding.
The OSEP monitoring process has had
no measurable benchmarks or clear criteria for distinguishing the severity
of LEA noncompliance with any given requirement. OSEP reported that
it made a finding of noncompliance in a state only when such noncompliance
was "systemic," meaning that it had occurred "with some frequency,"[113]
although there was no regulation or documented policy, guidance, or
internal procedure stating this particular criterion. Indeed, the "systemic"
criterion, even as OSEP defined it, was not consistently applied in
making determinations of noncompliance."[114] This lack of consistency
in how findings of noncompliance were made seemed at variance with the
compliance standard for SEAs as articulated in the law and in OSEP's
own communication to the states (see following discussion).
IDEA requires the SEA to "ensure" that
the law's requirements are met by all educational programs that are,
or should be, delivering special education services to students with
disabilities.[115] In the 1997 Texas Monitoring Report, OSEP clarified
the scope of the SEA's full responsibility for ensuring compliance,
regardless of the methods the SEA might have used to identify and "count"
deficiencies for correction.
"The procedures for TEA's District
Effective Compliance system (Reference Guide, September 1996)
state that, 'a discrepancy will be cited during the on-site review when
it is determined that the violation in question occurs systemically
throughout a campus, a district, or a cooperative... As a general rule,
a discrepancy will be cited when a violation is found in 30 percent
or more of the student programs reviewed.... Violations of "a more serious
nature"...are to be cited whenever a single violation occurs. Otherwise,
violations that occur in less than 30 percent of the files sampled are
not cited, and TEA requires agencies to take no corrective action.'
"Although a state educational agency
has some discretion about the method it uses to identify and ensure
correction of deficiencies, it is responsible for ensuring that
all Part B requirements are met by subgrantees for all students with
disabilities. TEA must identify and document all noncompliance
found through its monitoring process, even where the violation does
not reach the 30 percent threshold, or does not meet the definition
for "violations of a serious nature." Further, although corrective
action that TEA requires may vary depending upon how isolated or systemic
a finding is, it must ensure correction of all identified noncompliance."[116]
In this monitoring report, OSEP communicated
the expectation that Texas' corrective action on this issue was to monitor
such that all deficiencies were identified and corrected, "regardless
of the prevalence or magnitude of those findings."[117] OSEP's finding
and explanation made clear that it was the responsibility of the SEA to
ensure correction of any occurrence of noncompliance with IDEA. Insofar
as the SEA failed to ensure that all Part B requirements have been met,
the SEA was not in compliance with IDEA.
Although OSEP articulated a clear standard
with respect to findings of noncompliance, it emphasized that the severity
and extent of noncompliance varied with each finding. A finding might
have been based on an egregious problem or on a technical deficiency
of a less serious nature (i.e., a finding of noncompliance with the
procedural safeguard requirements might have been based on (1) a wholly
ineffective due process hearing system, or (2) the state's failure to
provide a fully accurate explanation of a procedural safeguard as part
of its required notice to parents).[118] Likewise, a noncompliance finding
might also have been based on several to many instances of noncompliance
with a requirement. These variations in the severity and extent of a
noncompliance finding, however, do not lessen the responsibility of
the SEA for identifying and ensuring that all instances of noncompliance
are corrected.
c. Summary of State
Noncompliance Findings
Chart 4 below indicates how many states
failed to ensure compliance in each of the listed areas according to
the most recent monitoring report for each state. The largest areas
of noncompliance were general supervision, where 90 percent, or 45 states,
failed to ensure compliance, and transition, where 88 percent, or 44
states, failed to ensure compliance. Other key noncompliant areas were
FAPE, where 80 percent, or 40 states, failed to ensure compliance, and
LRE, where 72 percent, or 36 states, failed to ensure compliance. Table
5 provides a state-by-state display of areas out of compliance. Thirty
states failed to ensure compliance in five, six, or seven areas of IDEA
requirements considered by this report. Appendix G provides a one page
summary of the noncompliant findings for each state from its most recent
monitoring report.
Chart 4: Number
and Percentage of Noncompliant States in Each Area
According to 1994-1998 OSEP Monitoring Reports
| Area
of Noncompliance |
States Out of Compliance |
| Number of States |
Percentage of States |
| General Supervision |
45 |
90% |
| Transition |
44 |
88% |
| FAPE |
40 |
80% |
| Procedural Safeguards |
39 |
78% |
| LRE |
36 |
72% |
| IEPs |
22 |
44% |
| Protection in Evaluation |
19 |
38% |
[Table 5: State Noncompliance as Reported
by 1994-1998 Monitoring Reports [119] not available.]
In the analysis of the fifty state monitoring
reports below, each of the monitored requirements is described briefly
with a summary of the findings from all fifty reports, followed by examples
from the reports to illustrate the basis for OSEP's noncompliance findings.
d. Analysis of Findings
of Noncompliance
i. Free Appropriate Public Education
FAPE gives children with disabilities access
to the supports and accommodations they need to obtain an education,
requiring that special education and related services be made available
to them in accordance with their IEPs. OSEP found that 40 states (80%)
had failed to ensure compliance with the FAPE requirements. Specific
FAPE requirements and the percentage of states in noncompliance are
illustrated in Chart 6:
[Chart 6: State Noncompliance with
FAPE Requirements not available.]
(a) Extended School Year
ESY services must be made available to individual
students who require such services in order for them to be receiving
FAPE. This requirement recognizes that some students with disabilities
will not receive an appropriate education unless they have special education
or related services during the summer months.
OSEP found that 28 states (56%) had
failed to ensure compliance with the ESY requirements, as shown
in the following examples:
In Alabama, . . . [i]nterviews
with teachers and administrators in public agencies A, B, and D revealed
that extended school year was not available for students in the facilities
visited by OSEP. Teachers interviewed ... stated that they were
unsure as to the criteria for extended school year, and therefore
did not know how to determine the need for extended school year services.
None of these 11 teachers had ever participated in an IEP meeting
where students were considered for such services. Both building
level and district administrators... confirmed that teachers and administrators
were not aware of the criteria for extended school year services.[120]
In four out of five public agencies visited
in Iowa, OSEP determined that ESY services were not considered
on an individual basis and provided to students who required them.[121]
In Delaware, OSEP found that availability
of ESY services was restricted to students with autism and those
who received "Level 5" services. Participation of other students
in ESY services was not determined based on the IEP, and in some of
the agencies visited it was not available to other students at all.[122]
In four of the five agencies visited
in Connecticut, "...children with particular types of disabilities
were categorically excluded from consideration for ESY services."[123]
Two teachers in an agency in Arkansas
reported that the agency did not offer ESY and that it was never
discussed at any IEP meeting they attended.[124]
(b) Related Services
Students with disabilities must be provided
with related services such as occupational therapy, speech therapy, physical
therapy, and psychological counseling based on their individual needs
as reflected in their IEPs. This requirement recognizes that without these
related services, some students with disabilities cannot adequately access
and learn their curricular materials.
OSEP found that 34 states (68%) had
failed to ensure compliance with the related services requirements,
as shown in the following examples:
In Florida, ...OSEP was
informed in interviews with district and building-based administrators,
teachers, and related services personnel in Agencies F, G, and H that
psychological counseling, as a related service, is not available
to students with disabilities, regardless of need. A building-based
administrator in Agency E indicated that many students need psychological
counseling but it is not available as a related service.
...OSEP was informed by two related service
providers in Agency G that they were instructed not to list individual
therapy on their caseload(s). They stated that they will provide
the service informally, but it is not reflected on the student's IEP
(there are no goals and objectives).
...A special education teacher in Agency
H told OSEP that students may have to go to a center-based or day
program if they need more intense counseling services.[125]
In one agency in Minnesota, OSEP
found that psychological counseling was not considered for inclusion
in any student's IEP.[126]
An administrator from an agency
in Arizona confirmed "that related services (speech therapy,
occupational therapy, and physical therapy) are not based on the individual
student's needs but are based upon the availability of the service
provider."[127]
Administrators and teachers from two
agencies in Oklahoma stated that psychological counseling services
are not provided based on an IEP, even if a child needs such services
to benefit from special education.[128]
In one district in California,
an administrator told OSEP that there were 42 students whose IEPs
called for speech services, but who were not receiving the services;
in another district, an administrator reported that students whose
IEP teams believed they needed mental health services to benefit from
special education were referred to outside agencies for the services,
rather than receiving the services free of charge through their IEPs.[129]
(c) Length of School Day
Unless their individual needs dictate otherwise,
the length of the school day for students with disabilities must meet
their state's general standard.
OSEP found that five states (10%) had
failed to ensure compliance with this requirement, as shown in the
following examples:
Administrators in two districts
in Delaware reported that 17 students had their school days
shortened by an hour and a half due to " transportation schedules."[130]
In Arkansas, ...[b]ecause there
were not enough modified buses in the agency to transport students
with disabilities, an administrator in Agency C reported that six
students received one hour fewer per day than the state standard.
One administrator reported and another
administrator confirmed that a classroom of children with disabilities
in Agency B had their school day shortened by 30 minutes per day,
which was less than the state standard, because students in a self-contained
program were transported from the school where their classroom was
located to their 'home school' in order to catch the regular bus.
An Agency J administrator reported to
OSEP that four children with disabilities who attended the vocational
technical program were in school one hour fewer than the state standard
because of the time needed to transport them from another district.
As a result, these children were only able to get two hours of credit
for their vocational class at Agency J--instead of the normal three
hours of credit.[131]
(d) Provision of Special Education/Program
Options Available
Students' IEPs must set forth with specificity
the amount of special education and related services the students are
to receive. These decisions must be based upon individual need. In addition,
program options that meet their needs must be made available to students
with disabilities.
OSEP found that 15 states (30%) had
failed to ensure compliance with these requirements, including the
following examples:
In [Pennsylvania] public
agency C, six of seven records reviewed by OSEP had no specific statements
of special education or related services.[132]
In Connecticut, ...OSEP found
that the technical vocational education such as that provided through
the state-operated regional schools was not an available program option
for students with moderate or significant disabilities. OSEP confirmed
through interviews that although some high school students could benefit
from technical vocational education available only at the regional
programs, this option was not available to certain students with disabilities.[133]
In Kentucky, OSEP found that 22
of 53 IEPs reviewed, in three of the four agencies visited, either
did not state the specific amounts of special education and related
services or stated the amounts in ranges. Individuals interviewed
reported that the amount of services was not based upon individual
student needs. In addition, twelve of the 53 students were not receiving
services that conformed to their IEPs. [134]
In Ohio, OSEP reviewed 94 student
records in 11 of the 12 agencies visited, and identified 75 cases
in which the amount of special education and related services was
either not recorded on the IEP or the services were stated in ranges.
Teachers, related service providers, and agency administrators reported
that the amount of services was stated as a range because the lesser
amount reflected state minimum standards, while the greater amount
indicated the child's actual need. The child would receive the amount
of services needed if the therapist had time to provide it; if not,
the child received the lesser amount.[135]
ii Least Restrictive Environment
LRE requirements hold that students with disabilities
should be educated, to the maximum extent appropriate, with their nondisabled
peers. Separate schooling or separate classes or other removal of children
with disabilities from the regular educational environment must take place
only when the nature or severity of the disability is such that education
in regular classes with the use of supplementary aids and services cannot
be satisfactorily achieved.
OSEP found that 36 states (72%) had
failed to ensure compliance with the LRE requirements. It is interesting
to note that of the remaining fourteen states, OSEP found
six states not out of compliance on LRE, but provided no information
at all on LRE compliance for the other eight states. In all six
states found not out of compliance, the finding was based on site
visits that had not included any separate facilities. Such facilities
have been sources of findings of LRE noncompliance in many states.
It was also noteworthy that during this
period of time, OSEP conducted monitoring visits at only three state
schools for students who are deaf or have visual impairments,[136] and
only three separate private facilities. These sorts of facilities have
powerful political constituencies, both nationally and in many states.
It is of particular importance that OSEP monitored such facilities because
states sometimes have failed to exercise their general supervisory
authority over them. In Kentucky, for example,
"[a]t the time of OSEP's 1992
Monitoring Report, KDE [Kentucky Department of Education] acknowledged
that it had not monitored the Kentucky School for the Deaf and the
School for the Blind for approximately 10 years. Comments received
at the public meetings held in June prior to OSEP's September 1995 on-site
visit indicated that KDE maintains a "hands off" policy toward both
state schools and that KDE has not yet monitored either school even
though OSEP's 1992 report had cited KDE for failure to exercise general
supervisory authority over these programs. During OSEP's 1995 monitoring
visit, KDE administrators acknowledged that they had failed to exercise
their general supervisory responsibility for these programs in that
the Kentucky School for the Deaf had not yet been monitored by KDE for
compliance....
Although the Kentucky School for the
Deaf was conducting a self-study during the 1995-96 school year in
preparation for an on-site monitoring visit during the 1996-97 school
year, and the Kentucky School for the Blind had received an on-site
monitoring visit in March 1995 and a follow-up visit in September
1995, at the time of OSEP's visit, KDE could not provide OSEP with
documentation to verify that special education programs for children
enrolled in these schools meet state and federal requirements."[137]
Finally, there was no evidence in the text
of any of the reports indicating that OSEP reviewed the files of students
placed in out-of-state residential facilities for LRE compliance.
Without such review, it was difficult to determine OSEP's basis for the
following conclusion: "During the 1992-1993 school year, Iowa Department
of Education (IDE) placed approximately 200 students in out-of-state
programs, based upon their unique needs."[138] Specific LRE requirements
and the percentage of states in noncompliance are illustrated in the following
chart:
[Chart 7: State Noncompliance with
LRE Requirements not available.]
(a) Education with Nondisabled Students/Removal
Only When Aids and Services Standard Met
Students with disabilities must be educated
with nondisabled students to the maximum extent appropriate to meet
their needs. Removal from less restrictive settings can occur only if
students' IEPs cannot be implemented in those settings, even with the
use of supplementary aids and services.
However, OSEP found that 32 states (64%)
had failed to ensure compliance with these requirements, including
the following examples:
OSEP found that in two districts
in Mississippi, regular class placements were not discussed
at annual review or IEP meetings for some students with disabilities.
One teacher told OSEP that this did not occur "even though some of the
students this teacher serves could probably perform satisfactorily in
some of the regular academic classes."[139]
Administrators and teachers in three
districts in Delaware told OSEP that these LRE requirements were
not followed in their districts because the state's funding formula
was a disincentive to regular class placements for students with
disabilities.[140]
In Idaho, "....OSEP found that
the removal of children with disabilities from regular education
programs in public agency B was not based on a determination that
the nature or severity of the disability is such that education in
regular classes with the use of supplementary aids and services could
not be achieved satisfactorily, but, rather on administrative convenience.
A special education teacher of a self-contained program for students
with moderate to severe/ profound disabilities ... stated, 'These
students have been here forever. This is where they have been and
this is where they are going to be.' She further stated that other
options in less restrictive settings are not explored or considered
by the IEP team."[141]
In Iowa, [t]wo...administrators
responsible for the administration and supervision of programs in
public agency E stated that the consideration of the supplementary
aids and services needed by a student with disabilities is "not part
of the IEP process."[142]
(b) Nonacademic and Extracurricular
Students with disabilities must participate
with nondisabled peers in nonacademic and extracurricular activities and
services to the maximum extent appropriate to their needs.
OSEP found that 29 states (58%) had
not ensured compliance with these requirements, as shown in the
following examples:
In New York, "[t]he special
education director and a program administrator in public agency F informed
OSEP that there was no individualized determination of the maximum extent
to which each student with a disability placed in the BOCES' center-based
(separate school) programs could participate with nondisabled children
in nonacademic and extracurricular services and activities, and that
there were currently no opportunities for such integration, regardless
of individual student need."[143]
In South Carolina, "OSEP determined
in interviews with administrators in agencies C and G that the participation
of students with disabilities with nondisabled peers in nonacademic
and extracurricular activities was not determined on an individual
basis. The administrator in agency G reported efforts on the part
of the agency to involve disabled students in nonacademic and extracurricular
group activities at neighboring regular education schools. However,
participation was not based on the individual needs of students,
but on the activities (e.g., assemblies) being available to the entire
class of special education students as a group activity. The administrator
in agency C stated that participation in nonacademic and extracurricular
activities is not occurring for most of the students enrolled in the
agency C separate facility, even though these students could benefit
from participation in nonacademic and extracurricular activities with
nondisabled peers."[144]
In California, three administrators
reported that "students identified as seriously emotionally disturbed
who are served in a separate school program in the district, and students
with disabilities who are served in the agency's preschool program
(separate school), are not provided adequate opportunities for integration
with age appropriate peers, regardless of individual need. [These
administrators] reported to OSEP that as a general practice there
was no individualized determination of the maximum extent to which
each student with a disability placed in the separate school programs
could participate with nondisabled children in nonacademic and extracurricular
services and activities."[145]
(c) Placement Based on IEP
Placement decisions for students with disabilities
must be based on their IEPs. The practice of not basing placement
decisions on students' IEPs can have the effect of depriving some students
with disabilities of access to schools attended by their friends and neighbors.
OSEP found that 19 states (38%) had
failed to ensure compliance with this requirement, including the
following examples:
An agency administrator in
Ohio stated that "approximately 25 percent of the students who
are placed into special education programs are placed prior to the development
of their IEPs. A teacher [in the same agency] high school visited
by OSEP stated that placements were based on parent request, administrative
convenience, or category of disability, rather than on the students'
IEPs."[146]
In Iowa, "[b]oth teachers interviewed
by OSEP in the school visited in agency B indicated that placement
is determined prior to the development of a student's IEP.
Two of the four teachers interviewed
by OSEP in agency C indicated placement is determined prior to the
development of a student's IEP.
An administrator and two teachers from
the elementary school in agency D told OSEP that, for both initial
and subsequent placements, placement is determined prior to the development
of the student's IEP."[147]
In Connecticut, "OSEP found that
students with moderate, significant, or profound disabilities are
not permitted to attend the high school that agency D nondisabled
students attend. Special education teachers, the administrator of
the middle school, the administrator responsible for supervising the
provision of special education services in agency D and a school nurse,
and the PPT minutes in student records confirmed that placement
practices for these students were not based on the student's
IEP, but rather on the student's IQ, program location and availability
of related services (e.g., medical services)."[148]
(d) Continuum Available to Extent Necessary
A continuum of placement options must be
available to students with disabilities to the extent necessary to implement
their IEPs. The lack of availability of a full continuum of placement
options can have the effect of forcing students into placements that are
more restrictive than necessary to implement their IEPs.
OSEP found that 17 states (34%) had
failed to ensure compliance with this requirement, including the
following examples:
Teachers and a building-level
administrator in a Rhode Island public agency told "OSEP that, at
their school, full-time regular education placement . . . was not a
continuum option for any students with disabilities. At [a second public
agency], three teachers told OSEP that full-time regular education was
not a continuum option for any of the students with disabilities attending
the school that OSEP visited. Administrators and teachers at [a third
agency] told OSEP that currently, full-time regular education placement
was not an option in the district."[149]
The inability or unwillingness of school districts
to provide a full continuum of placement options also can have the effect
of forcing students into placements that are more restrictive than necessary
to implement their IEPs:
In New Jersey, "[a]n administrator
stated that the Child Study Team ... looks at a student's classification
at the annual review and determines whether or not a student is eligible
for Resource Room services. A teacher and administrator further elaborated
that the Resource Room option is limited to two periods a day. If more
time is required, the student is placed in a self-contained classroom
for a full day. There are no other options for resource service for
more than two periods or less than a full day."[150]
(e) Placement Determined at Least Annually
Placement decisions for students with disabilities
must be made at least annually. Failure to re-evaluate placement annually
can result in continuing placements that no longer meet the educational
and related service needs of the child.
OSEP found that eight states (16%) had
failed to ensure compliance with this requirement, including the
following examples:
"An administrator and two teachers
from public agency C in North Carolina informed OSEP that placement
determinations are reviewed after the triennial re-evaluation unless
the child's parents want a program change prior to the re-evaluation.
An administrator and one teacher from public agency D stated that placements
for students with disabilities are determined at the time of initial
placement into the special education program and thereafter at three-year
intervals coinciding with the time of the student's re-evaluation, unless
special circumstances arise indicating that a change may be needed.
Teachers from public agencies F and H told OSEP that the IEP team does
not reconsider the student's placement until the student is ready for
a higher functioning program, or the student 'ages out' to the next
level."[151]
In Georgia, "[w]hen asked how
often placement determinations for students with disabilities are
made, three administrators and four teachers from agencies A, D, and
E informed OSEP that placement options are considered at initial placement
and at triennial meetings, but not at annual reviews. 'At annual reviews,
we just look at goals and objectives' explained a teacher from agency
A."[152]
iii Individualized Education Programs
IDEA requires that all students have an individualized
education program that documents (1) their current level of performance,
(2) their goals and objectives, (3) the services to be provided to meet
those needs, (4) the dates for initiation of services and anticipated
duration, (5) criteria for determining the extent to which objectives
are being met, and (6) transition service for students aged 16 and older.
OSEP found that 22 states (44%) had
failed to ensure compliance with the IEP requirements. Specific
IEP requirements and the percentage of states in noncompliance are illustrated
in the following chart (Chart 8):
[Chart 8: State Noncompliance with
IEP Requirements not available.]
(a) IEP Content
IEPs for students with disabilities must
address their unique individual needs and must include students' present
levels of performance; annual goals; short-term objectives; and evaluation
criteria, procedures, and schedules. IEPs must also include the extent
to which students will participate in general education programs.
OSEP found that 20 states (40%) had
failed to ensure compliance with the IEP content requirements. The
failure to base IEPs on the unique individual needs of students is also
demonstrated by goals and objectives that do not correspond to the
needs identified by students' IEPs. For example,
"OSEP's comparison of 17 IEPs
in a New Jersey agency showed identical goals and objectives for 16
children. A teacher stated that all students were taught the same
skills and that the goals were based on the curriculum. During the review
of one IEP, OSEP discovered that a goals and objectives page had the
name of another student on it. School personnel were unable to explain
this discrepancy.
OSEP reviewed another student record
that showed the same goals and objectives for three years.
In another agency, a comparison of 12 IEPs showed identical goals
and/or objectives for six children enrolled in a job orientation program.
A teacher for three of the students stated that even though the IEP
goals and objectives were identical in the children's IEPs, the children's
needs were not identical. Another teacher for the other three children
in that same agency told OSEP staff that the IEP short-term objectives
were identical and did not address individual students' needs in terms
of their participation in the job-orientation program."[153]
The failure to base IEPs on the unique
individual needs of students is also shown by goals and objectives that
do not correspond to the needs identified by students' IEPs:
In Kentucky, "[f]ourteen
of the 53 IEPs reviewed by OSEP did not include goals and objectives
to address each of the students' needs identified on the IEP. OSEP found
that IEPs did not contain goals and objectives related to students'
needs for instruction in special education settings or for related services
such as speech therapy."[154]
States' violations of IEP content requirements
are often fairly widespread. The following table displays the number of
IEP deficiencies as the numerator and the total number of IEPs reviewed
as the denominator for five states:
[Table 9: State Noncompliance with
IEP Content Requirements in Five States Requirement not available.]
(b) IEP Meetings
IEP meetings must include a representative
of the public agency--other than the student's teacher--who is qualified
to supervise or provide special education and the student's teacher.
The meetings should also include the student, if appropriate, and may
include other individuals at the discretion of the parent or agency.
Agencies must take steps to ensure that the student's parent(s) participates
in meetings, including giving timely notice of meetings, scheduling
meetings at mutually convenient times and places, and using other methods
to ensure parent participation when parents cannot attend.
OSEP found that 13 states (26%) had
failed to ensure compliance with the IEP meeting requirements, including
the following example:
In Massachusetts, "...OSEP
was informed by four agency administrators, eight building administrators,
and nine teachers in six public agencies...that one person, usually
the educational programmer or the student's special education teacher,
develops the goals and objectives after the IEP meeting.
...OSEP finds that this practice is inconsistent with...the requirement
that one or both of the child's parents...must participate in the development
of the child's IEP...."[155]
iv Transition Services
Students age 16 and older (and younger if
deemed appropriate) must have IEPs that include a statement of needed
transition services.
OSEP found that 44 states (88%) had
failed to ensure compliance with the transition requirements. Specific
transition requirements and the percentage of states in noncompliance
are illustrated in the following chart:
[Chart 10: State Noncompliance with
Transition Requirements not available.]
(a) Notice
If a purpose of an IEP meeting is the consideration
of transition services, the notice of the meeting must indicate this
purpose, indicate that the student will be invited, and identify any
other agencies that will be invited.
OSEP found that 35 states (70%) had
failed to ensure compliance with the transition notice requirements.
For example,
In North Carolina, "OSEP
found that in most instances [the total in all agencies was 23 of 27
IEP notices] the notices used by four public agencies to inform parents
of IEP meetings did not specify that a purpose of the meeting is the
consideration of transition services, when those notices were for meetings
for students who were 16 years or older."[156]
(b) Meeting Participants
If a purpose of an IEP meeting is the consideration
of transition services, invitees must include the student and representatives
of other agencies likely to be responsible for providing or paying for
transition services. If the student does not attend, the public agency
must take steps to ensure that the student's preferences and interests
are considered.
"I've never been asked, 'Hey,
what's your perspective? What can I do to make your education better?'
And I feel like you can ask the parents all you want, but if you really
want to get down to the heart of the problem and how the students are
being affected, maybe you should ask them first." - A high school
senior with a disability from South Carolina on having input
to the IEP[157]
OSEP found that 38 states (76%) had failed
to ensure compliance with these requirements, including the following
examples:
In two New Hampshire public
agencies, in 14 of 17 records reviewed by OSEP for students 16 years
or older, the student was not invited to the IEP meeting.[158]
In Massachusetts, "OSEP reviewed the
files of 18 students ages 16 and older in public agencies A, E, and F,
and found that three of six students in agency A, four of six in agency
E, and three of six in agency F did not attend their most recent IEP meeting.
Four teachers and an administrator responsible for the administration
and supervision of special education programs in those agencies told OSEP
that they do not invite the student to the IEP meeting even if one of
the purposes of the meeting is the consideration of transition services.
Three administrators responsible
for the administration and supervision of special education programs,
four building level administrators, and three teachers in public agencies
A, E, and F told OSEP that there is no procedure for ensuring that the
preferences and interests of the students are considered during the
development of the statement of needed transition services."[159]
(c) Statement of Needed Services
The IEPs of students 16 and older, and of
those who are younger if appropriate, must contain a statement of needed
transition services, including (1) activities in instruction, (2) community
experiences, (3) employment, and (4) adult living.
OSEP found that 34 states (68%) had
failed to ensure compliance with these requirements. For example,
In Missouri, "OSEP found
that out of a total of 42 IEPs of students 16 or older, 15 IEPs...contained no statements of needed transition services... An agency administrator
explained to OSEP that the district has not done a good job on transition
and that it is not district practice to provide transition services to post-secondary education for students with mild disabilities, such
as learning disabilities."[160]
In Colorado, "[b]ased on a review
of records for age-appropriate students in two agencies, OSEP found
that 11 of 21 IEPs... did not contain statements of needed transition
services or included incomplete statements of needed transition services.
Incomplete statements... omitted services in one or more of the areas
of instruction, community experiences, and employment/other post-school
adult living objectives, and did not include a statement that the
IEP team had determined that the student did not need services in
those areas and the basis for that determination...."[161]
In New Hampshire, "public agencies
A and E, in 16 of 17 records reviewed by OSEP for students 16 years
or older, student IEPs did not include a statement of needed transition
services or any information related to the provision of transition
services...."[162]
v. General Supervision
The general supervision of the implementation
of IDEA Part B requirement means that states must ensure the development
and use of mechanisms and activities in a coordinated system to (1) ensure
the states' mechanisms for monitoring compliance with FAPE, LRE, and other
IDEA requirements are coordinated and result in the correction of identified
deficiencies; (2) ensure that educational and support services are provided
to eligible students involved in juvenile and adult detention and correctional
facilities, state operated programs (i.e., schools for the developmentally
disabled, blind, or deaf), and out-of-district placements; and (3) ensure
appropriate and timely service delivery based on interagency coordination
and assignment of fiscal responsibility. General supervision also ensures
that decision-making regarding these mechanisms and activities is based
on collection, analysis, and utilization of data from all available sources
(i.e., complaint investigations and resolutions, due process determinations,
mediation agreements, court decisions, etc.). Some of the monitoring reports
during the period of time under study treat all of these issues as part
of general supervision, while others do not.
OSEP found 45 states (90%) failed to
ensure compliance with general supervision requirements. Specific
general supervision requirements and the percentage of states out of
compliance are illustrated in the following chart:
[Chart 11: State Noncompliance with
General Supervision Requirements not available.]
(a) Incarcerated Students
States must ensure that all individuals
with disabilities ages three through 21 are identified, located, evaluated,
and provided FAPE.
DoED found 18 states (36%) failed to
ensure compliance with these requirements, including the following
example:
"California Department of Corrections
administrators responsible for educational programs in correctional
facilities cited a recent study by that Department estimating that there
are 6500-8500 youth with disabilities between the ages of 16 and
22 in the Department's facilities who would be eligible for special
education and related services under current California law. They stated
that the Department of Corrections currently offers adult basic education
and literacy programs to assist inmates in attaining a high school diploma
or high school graduation equivalency diploma, and provides adult literacy
offerings, but that special education services are not currently
available in any of the 29 facilities that house youth between 16 and
22."[163]
(b) Complaint Resolution
OSEP found 24 states (48%) failed to
ensure compliance with the complaint resolution requirements. These
requirements and the percentage of states out of compliance are illustrated
in the following chart:
[Chart 12: State Noncompliance with
Complaint Resolution Requirements not available.]
(i) Resolved within sixty days
Unless exceptional circumstances exist with
respect to a particular complaint, states must resolve complaints within
60 calendar days.
DoED found 18 states (36%) failed to
ensure compliance with the complaint time line requirement. Moreover,
states sometimes exceed the mandated time line for large numbers
of complaints. For example,
In Minnesota, "...MDE [Minnesota
Department of Education] did not resolve 58 of the 100 complaints,
received during the 1993-94 school year, within 60 days...."[164]
"Based on a review of the Pennsylvania
Department of Education's [PDE's] complaint log for the period
beginning January 1, 1991, and ending December 31, 1992, OSEP finds
that 512 complaints were filed with PDE, and that in 168
cases PDE did not investigate and resolve the complaints within 60
calendar days after they were filed. OSEP reviewed a sample of
16 complaint files where PDE exceeded the 60-day time limit and found
that 14 of those files did not contain documentation of an extension
due to exceptional circumstances with respect to a particular complaint."
[165]
(ii) Resolve any complaint
States must resolve every allegation in each
complaint.
DoED found nine states (18%) failed
to ensure compliance with this requirement. Some states have
refused to investigate certain types of complaints. The effect of
the complaint limitations imposed by some states has been to force parents
either to drop the issue or to hire attorneys to represent their children
in due process hearings. Some examples include the following:
In Kansas, "KSBE has no
written policy or guidelines outlining its procedures for conducting
complaint investigations. KSBE officials informed OSEP that KSBE
does not issue a report outlining its findings when the complaint involves
'IEP team decisions.' IEP team decisions are defined by KSBE to
include appropriateness of identification or placement decisions, or
appropriateness of decisions involving types and amount of services.
KSBE limits its complaint resolution to procedural issues alleging state
or federal violations, such as whether the district is providing the
type and amount of services listed on an IEP or whether the service
providers meet specific state or federal criteria. When KSBE determines
that a complaint is substantive rather than procedural, the parents
are contacted, usually via phone, and advised that their appropriate
avenue of relief is through a due process hearing. KSBE officials
stated that records of requests for complaint investigation that
are denied are not kept by KSBE. In the file of one complaint, OSEP
found the following notation: 'This is not an issue which can be adjudicated
through the formal complaint process, as the State Department of Education
will not substitute its judgment for that of the IEP team. Therefore,
no corrective action is required pursuant to this issue.'"[166]
In North Dakota, "OSEP found that
in one complaint the issues raised by the parent regarding the provision
of special education services for his daughter were investigated as
if there were the possibility of a systemic problem within the unit
and district policies and procedures that may have affected all children
receiving special education services. Further, the written report
addressed findings related to general policies affecting all children
with disabilities rather than the individual circumstances of the
complainant. Therefore, there was no investigation and resolution
of the specific allegations of the complaint."[167]
The effect of the illegitimate complaint
limitations imposed by some states has been to force parents either
to drop the issue, or to hire attorneys to represent their children in
due process hearings.
(c) State Monitoring
OSEP found 35 states (70%) failed to
ensure compliance with the state monitoring requirements. These
requirements and the percentage of states in noncompliance are illustrated
in the following chart:
Chart 13: State
Noncompliance with State Monitoring Requirements
| Requirement |
% of States Out of Compliance |
Number of States Out of
Compliance |
| Method of Determining
Compliance |
| Lacked methods to determine
compliance with some requirements |
44 |
22 |
| Lacked complete methods |
38 |
19 |
| Effective Method
for Identifying Deficiencies |
| Lacked effective methods
for identifying deficiencies |
42 |
21 |
| Correction of Deficiencies |
| Failure to ensure correction
of deficiencies |
56 |
28 |
(i) Method/completeness of method to
determine compliance
States must adopt proper methods to monitor
public agencies responsible for carrying out special education programs.
OSEP found 22 states (44%) lacked methods
to determine compliance with some requirements, and 19 states (38%)
lacked complete methods, including the following examples:
No method to determine compliance: "...OSEP reviewed AZDE's [Arizona Department of Education's]
monitoring procedures document, Monitoring for Effectiveness of Compliance
-- Master Guide, the Collaborative Program Review manual,
and all other monitoring procedures and materials, and finds that the
procedures that were in effect at the time of OSEP's visit did not include
a method to determine compliance regarding the following requirements:
§300.571--Consent for release of confidential information,
§300.540-- Additional team members--SLD." [168]
Incomplete methods to determine
compliance: "...§300.300--FAPE--Extended School Year
services (ESY) - AZDE's monitoring procedures contain an element
at 5.C.5.v that requires that "the IEP shall include consideration
for extended school year services," and monitors are directed to review
the IEP to determine if ESY services have been considered. There are
no guidelines for determining the need for ESY and, in some cases,
documentation on the IEP is limited to checking "yes" or "no" in response
to the provision of ESY services. As a result, AZDE's method does
not enable monitors to determine if the decision about the need for
ESY is made on an individual basis at the IEP meeting, rather than
on the category of disability or the program in which the student
is enrolled."[169]
(ii) Effective method for identifying
deficiencies
States must use proper methods to monitor
public agencies responsible for carrying out special education programs.
OSEP found that 21 states (42%) lacked
effective methods for identifying deficiencies. The methodology
OSEP has used to make findings of noncompliance in this area has been
to monitor public agencies recently monitored by the SEA. Findings are
made if OSEP finds noncompliance with requirements that the SEA missed
in its monitoring effort. For example,
"Although the Virginia DOE's
[Department of Education's] monitoring instruments include elements
that address all of the Part B requirements regarding placement in the
least restrictive environment, OSEP found that VADOE's monitoring
procedures had not been fully effective in determining compliance with
all of those requirements. OSEP identified deficiencies in three
agencies regarding placement in the least restrictive environment that
VADOE did not identify when it conducted its most recent review of those
agencies."[170]
Occasionally findings of noncompliance with
the requirement to have effective methods for identifying deficiencies
are based upon a failure to monitor districts regularly:
In Texas, "[d]uring the 1992-93
through the 1995-96 school years, Texas monitored 108 of its 1,065
districts. Only districts that volunteered to participate in
the pilot were reviewed using the Results Based Monitoring system.
With the exception of a few follow-up reviews resulting from previous
comprehensive monitoring reviews, TEA's comprehensive cyclical monitoring
was discontinued after the 1991-92 school year. As a result, 541, roughly
half of Texas's districts, received only one visit between the 1986-87
and 1995-96 school years. Two-hundred five of these districts had
not been monitored in eight or more years."[171]
(iii) Correction of deficiencies
States must adopt and use proper methods for
the correction of deficiencies in program operations that are identified
through monitoring.
OSEP found that 28 states (56%) had
failed to ensure the correction of deficiencies identified through their
monitoring processes. OSEP's methodology on this issue has been
to visit agencies that the SEA had recently monitored, had made findings
of noncompliance, and had verified that corrective actions were performed.
Findings were made by OSEP if it discovered continuing noncompliance
with the requirement at issue in the agency visited. On occasion, OSEP
had discovered that one of the reasons for the continuing noncompliance
was that the SEA had approved corrective actions that were inadequate
to remedy the noncompliance. For example,
"...OSEP found in May 1995 that
agencies A, C, D, and F were failing to complete a number of pre-placement
evaluations within the state's 60 school day standard, although ISBE
[Illinois State Board of Education] had found this deficiency
in agency A in 1993, agency C in 1990, agency D in 1988, and agency
F in 1989, and required each agency to correct the identified deficiencies
...."[172]
"OSEP noted in monitoring documents maintained
by the Indiana Department of Education (IDE) that it had not
ensured that subsequent to districts being monitored, the necessary
actions to correct identified deficiencies were implemented by public
agencies, nor had IDE ensured that noncompliant practices were discontinued.
... OSEP found similar deficiencies in public agencies that IDE had
monitored, identified deficiencies, and subsequently verified that
corrective actions had occurred. In addition, some deficiencies in
agencies monitored by OSEP during its 1992 monitoring visit reappear
in this Report. IDE had previously provided written assurances and
documentation that deficiencies identified by OSEP in these agencies
had been corrected."[173]
"Both OSEP and LDE [Louisiana Department
of Education] identified some of the same noncompliance activities
regarding LRE in agencies B, C, D, and E .... In two instances the
corrective action plan directed the LEA to provide in-service training
to staff and to allow for more opportunities for students to interact
with nondisabled peers. These activities were completed, but some
students continue to lack any opportunities to participate with nondisabled
students for academic, nonacademic, or extracurricular activities.
In one instance the facility was to develop an interagency agreement.
This was accomplished, but the placement process continues to disallow
individual determinations of the maximum extent to which students
can be educated with nondisabled students." [174]
In California, OSEP noted that
"... many deficiencies identified in agency F in CDE's [California
Department of Education's] 1993 review and OSEP's 1991 review were
uncorrected. CDE required agency F to submit corrective action materials
in the form of completed compliance resolutions or compliance agreements
after its 1993 review. ... CDE approved all compliance resolution
materials .... The corrective actions submitted by agency F and approved
by CDE, required agency F to change its policies and procedures to
make them consistent with state and federal requirements, but did
not require training or other procedures to ensure that practice was
changed or documentation to ensure that deficiencies had been corrected
on an individual and/or systemic basis. ... CDE also conducted a follow-up
visit required by the OSEP corrective action plan. CDE focused its
follow-up on deficiencies identified by OSEP in its 1992 Report and
found that agency F had corrected these findings. CDE's follow-up
review, however, only confirmed that public agencies had established
policies and procedures that were consistent with the requirements
...; CDE did not investigate whether public agencies implemented
these requirements, and OSEP found as part of its 1995 review
that agency [F] continued to implement practices that were not
consistent with these requirements."[175]
(iv) Limitations of monitoring findings
on the compliance of state monitoring systems
Federal monitoring findings on state monitoring
should be regarded as low estimates of the number of states that have
not complied with the state monitoring requirements. In each of the
following examples, the federal monitoring reports appeared to contain
enough information and analysis to support findings of noncompliance with
state monitoring requirements, yet none expressed a clear-cut finding
of noncompliance.
In its 1997 Alaska monitoring
report, OSEP made the following determination:
"... AKDE [Alaska Department of Education]
monitors for this requirement [FAPE-- related services] by reviewing
current IEPs ..., and verifying that services are implemented as written
on the IEP, but does not have a method to determine how decisions
are made regarding provision of needed related services. OSEP
also reviewed the most recent monitoring reports issued by AKDE for
each of the public agencies to be visited. OSEP determined that AKDE
did not make any findings with regard to the provision of related
services...in any of these agencies."[176]
OSEP, however, had found noncompliance with
this requirement in three agencies in Alaska, thus providing the basis
for a finding of noncompliance concerning the effectiveness of the method
for identifying deficiencies requirement. Yet OSEP did not state such
a finding in its Alaska report.
In Alabama, OSEP made findings
of LRE noncompliance in four agencies; the Alabama SEA had made such
findings in only one of these agencies.[177]
Again, however, OSEP did not state a finding
of noncompliance concerning the effectiveness of the method for identifying
deficiencies.
In addition, in the FAPE section
of its Maine report OSEP noted the following:
"In its 1994 monitoring report, OSEP
cited MDOE [Maine Department of Education] for monitoring procedures
that did not always result in the identification of deficiencies regarding
the provision of related services. The specific related services addressed
in this finding were psychological counseling and testing services.
MDOE was required to revise its monitoring procedures, and take other
action to ensure the provision of related services, including psychological
services, needed by the child in order to benefit from special education.
However, MDOE did not make findings regarding the availability and
provision of psychological counseling in any of the monitoring reports
for agencies A, B, and G, the agencies in which OSEP identified deficiencies
in the 1996 monitoring visit.
Agency A was monitored by MDOE in 1994, prior to the issuance of OSEP's
monitoring report, and the subsequent revisions to the monitoring
procedures. Agencies B and G were monitored in 1995 and 1996, after
the revision of the monitoring documents...."[178]
Yet OSEP did not state a finding of noncompliance
in the area of effectiveness of the method for identifying deficiencies
in its 1997 Maine report.
Although in the FAPE section of
its South Carolina report, OSEP pointed out the following, again
no clear-cut finding of noncompliance with state monitoring requirements
was stated:
"Although SCDE's [South Carolina Department
of Education's] monitoring procedures require that monitors verify
through interview with teachers, related services providers, and parents
that the related services specified in the student's IEP are being
provided, OSEP found this process ineffective. Monitoring
documents maintained by SCDE showed that interviews with teachers
and related services providers, as required by SCDE's monitoring procedures,
were not always conducted by SCDE monitoring staff to confirm
that related services are provided based on the student's IEP."[179]
Finally, OSEP noted in its Tennessee
report, concerning pre-placement evaluations, that the SEA made
findings of noncompliance in two agencies, and verified corrective
actions, yet "its monitoring procedures have not effectively ensured
that agencies discontinue noncompliant practices."[180] But OSEP did
not make a finding of failure to correct identified deficiencies in
its Tennessee report.
The reader will note the similarities between
these examples and earlier examples where OSEP made actual findings of
noncompliance in state monitoring. Although OSEP later reported it had
required corrective actions in each of these instances, it was puzzling
that OSEP also had not made clear findings of noncompliance in Alaska,
Alabama, Maine, South Carolina, and Tennessee.
(v) Procedural safeguards
Procedural safeguards ensure that parents
are notified about and have access to due process. OSEP found that 39
states (78%) had failed to ensure compliance with the procedural safeguards
requirements. Specific procedural safeguards requirements and the
percentage of states in noncompliance are illustrated in the following
chart:
[Chart 14: State Noncompliance with
Procedural Safeguard Requirements not available.]
(vi) Hearing decisions within forty-five
days
Unless a specific extension of time is granted
by a hearing officer, final decisions in hearings must be reached and
copies mailed to the parties no later than 45 days after the receipt
of the request for the hearing.
OSEP found that 18 states (36%) had
failed to ensure compliance with this requirement. Such violations
can result in undue delays in students receiving appropriate services
or placements. For example,
In Illinois, "OSEP reviewed
the decisions and Illinois State Board of Education files for 11
randomly selected due process hearings (each of which was requested
between March 1993 and January 1994), and found that the decision
in each of the 11 hearings was reached more than 45 days after the hearing
was requested. There was no documentation of a time line extension
for seven of those hearings, and it appeared from the files for the
other four hearings that some extension of time had been granted, but
OSEP could not determine whether a decision had been reached and mailed
to the parties within specific extensions of the time line."[181]
Sometimes violations of the 45-day requirement
result in delays that can waste a significant portion of a school year
for the students.
In Georgia, "OSEP found
that in 12 of the 28 requests for a due process hearing, the 45-
day time line was exceeded, and there were no requests for extensions
recorded in the log prepared by Georgia Department of Education. The
time lines in these cases exceeded the 45-day time lines in amounts
ranging from seven days to four months and 27 days. The log noted that
of the 16 requests for which extensions were recorded, 10 were extended
for a specific period of time. The log entries for the other six extensions
did not include a specific time limit, and all were resolved from 56
to 169 days beyond the 45-day time line requirement."[182]
(vii) Protection in evaluation
Re-evaluations of students with disabilities
must occur within three years of prior evaluations. Initial evaluations
must comply with time line standards set by state regulations.
OSEP found that 19 states (38%) had
failed to ensure compliance with the protection in evaluation requirements.[183]
For example,
In Texas, "OSEP interviewed
administrators and agency officials responsible for coordination and
conducting evaluations in agencies A, B, H, J, and K to determine whether
all students with disabilities are evaluated at least every three years,
or more often if warranted or requested by the child's parent or teacher.
These officials acknowledged that some evaluations were delayed by
three to twelve months beyond the three-year time line. They reported
to OSEP that there was a waiting list of students in each of these agencies
whose re-evaluations were overdue. Administrators from agencies A and
H informed OSEP that at least 100 students' re-evaluations were delayed.
Administrators in agency B explained to OSEP that 1,244 overdue re-evaluations
exceeded the three-year time limit. An agency J administrator explained
to OSEP that of the three regions in the district, the northeast region
had 265 overdue re-evaluations for students with disabilities that exceeded
the three-year time limit."[184]
In Rhode Island, "OSEP reviewed
student files from six agencies and found that some student re-evaluations
were from one month to five years overdue. Agency D provided OSEP
with a list of students whose re-evaluations were overdue. OSEP reviewed data for 77 of the students on the list: 10 were two to
three years overdue, 19 were one to two years overdue, and 48 were
a year or less overdue. A special education administrator in agency
E told OSEP that evaluations were seriously delayed. Of 251 re-evaluations,
151 were overdue, some by as much as five years."[185]
"OSEP reviewed documentation on initial
evaluations and interviewed staff in agencies visited. These agencies
provided documentation on initial evaluations completed during the
1993-94 and 1994-95 school years. That documentation showed delays
in evaluations conducted by public agencies that ranged from
10 instructional days to as many as 390 instructional days (e.g.,
greater than two calendar years) in the following agencies:
Agency B--63
of 400 evaluations were overdue;
Agency C--166
of 377 evaluations were overdue;
Agency E--49
of 600 evaluations were overdue;
Agency F--161
of 806 evaluations were overdue;
Agency G--68
of 386 evaluations were overdue.
OSEP collected documentation from agencies
B, C, D, E, F, and G on re-evaluations conducted during the 1994-1995
school year. In interviews, administrators and agency personnel responsible
for conducting these evaluations reported that the following delays
were the result of staff shortages and the subsequent decision to
give priority to initial evaluations over triennial re-evaluations.
Agency B--180
of 579 evaluations overdue
Agency E--68
of 386 evaluations overdue
Agency G--340
of 380 evaluations overdue
In agencies E and G, these re-evaluations
were, in some cases, more than a year overdue."[186]
"[I]n one district in New York,
DoED reviewed a district report and found that of 5,743 students
referred for assessments during the 1992-93 school year, 3,467 (60%)
were overdue."[187]
e. Data Quality Issues Raised
by the Monitoring Reports
At the start of this section, several problems
regarding the standards used in assessing the federal monitoring findings
were laid out, pointing to the need for some fundamental changes in monitoring
state compliance with IDEA. Issues of data quality will also play a pivotal
role affecting collection and use of data under the new monitoring system.
First, the 1997 reauthorization of IDEA placed a strong emphasis on
results for students with disabilities and performance measures as indicators
of the states' success in meeting the goals of IDEA.
This priority emerged in part due to the
second factor: the growing impact of the Government Performance and
Results Act of 1993 (GPRA).[188] Aimed at improving the effectiveness
of federal programs and public accountability, GPRA required federal
agencies to prepare a five-year strategic plan and annual performance
plans beginning with fiscal year 1999. Agency performance reports were
also required, and the first report on FY 1999 is due in March 2000.
The public accountability envisioned by GPRA extends to state or local
government entities receiving federal funding. They are responsible
to their respective funding agencies for GPRA compliance.
Under earlier provisions of IDEA, states
had reported annually on their progress in implementing IDEA, but with
significantly fewer quantitative data reporting requirements. Now states
will have to report on all assessments of students with disabilities
in the same detail and with the same frequency as on assessments of
nondisabled students, for example. In order to meet the new reporting
requirements, states will need to develop statewide goals, standards,
and assessment systems for students with disabilities. States will also
have to define the performance indicators and measures for determining
if the performance standards are being met and have the systems in place
to collect the data.
OSEP indicates that while many states
have data collection and reporting systems in place, the systems vary
tremendously. There is currently no requirement in IDEA for a
standardized approach to data reporting, even for federal reporting
purposes.
OSEP has monitored state compliance based
in large part on the type and quality of compliance-related data available
in each state. Only some elements of this data are prescribed by law.
The limited availability of assessment and compliance data that are
both adequate and appropriate affects states' ability to ensure that
school districts are providing FAPE, LRE, procedural safeguards, etc.
to children with disabilities.
There is a need to have the right data
available for assessing compliance with state and federal program requirements,
while minimizing the burden on resources in collecting, analyzing, and
reporting on that data. A comprehensive reassessment of all data required
to evaluate the many state and federal education programs will help
accomplish this. For example, the data elements needed to measure compliance
with IDEA and improved educational results for children with disabilities
should be identified in consultation with all stakeholders, including
the students, their parents, public agencies, and policy-makers. These
IDEA data elements should be compared with the complete list of data
elements required for evaluating all of the various federal and state
programs to determine where existing data sources in each state can
be drawn upon, redundant data eliminated, and missing data developed.
OSEP's leadership is critical to helping
states build and maintain the efficient data systems they need to assess
their own performance in meeting their responsibilities under IDEA.
OSEP can bring together the stakeholders and facilitate the process
of identifying the appropriate data elements for assessing IDEA compliance
and educational results indicators. Because reliable data is vital
to effective general supervision by the states, the Department of
Education also should provide technical assistance to them for developing
comprehensive, streamlined data systems.
f. Findings and
Recommendations
Finding # III B. 1A
After 25 years, all states are out of compliance with IDEA to varying
degrees.
An analysis of the most recent federal monitoring report available for
each state (from 1994-1998) indicated that no state had carried out
its responsibilities to ensure compliance with all the requirements
of Part B. While the degree of noncompliance with any given requirement
(based on number and seriousness of infractions) varied among the states,
many states had failed to ensure compliance with a significant number
of requirements. Of the seven areas analyzed, 24 percent, or 10 states,
had failed to ensure compliance in five areas; 24 percent, or 10 states,
had failed to ensure compliance in six areas, and 12 percent, or six
states, had failed to ensure compliance in seven areas. Four percent,
or two states, had failed to ensure compliance in only one area.
Finding # III B.1B
More than half of the states have failed to ensure full compliance
with the following areas: general supervision (90%, or 45 states); transition
(88%, or 44 states); free appropriate public education (80%, or 40 states);
procedural safeguards (78%, or 39 states) and least restrictive environment
(72%, or 36 states).
Other areas in which states failed to ensure compliance are IEPs (44%,
or 22 states) and protection in evaluation (38%, or 19 states).
Recommendation III B.1A
Congress should ask the General Accounting Office to conduct a study
of the extent to which SEAs and LEAs are ensuring that the requirements
of IDEA in the areas of general supervision, transition, free appropriate
public education, procedural safeguards, and least restrictive environment
are being met. In addition, the Department of Education should conduct
regular independent special education audits (fiscal and program) initiated
by the DoED Office of Inspector General (OIG). The purpose of the audits
would be to examine whether federal funds granted under IDEA Parts B
and D (State Program Improvement Grants) have been and are being spent
in compliance with IDEA requirements. These audits should be a supplement
to OSEP's annual compliance monitoring visits, and the audit results
should be in DoED's annual report to Congress. To the extent that the
DoED OIG lacks the subject matter expertise to conduct program audits
under IDEA, the OIG should contract with independent entities having
such expertise when a program audit is necessary.
Recommendation # III B.1B
Congress should fund an independent consortium of nongovernment
entities in every state to develop and conduct independent monitoring
and to produce independent reports to the President and Congress
on the status of each state's compliance with IDEA at the local level.
Members of the nongovernment consortium should include, but not be limited
to, the state's PTI, P&A, and IL centers.
While parents of children with disabilities and students and adults
with disabilities participate in the federal monitoring process, they
have no independent means for assessing the extent or quality of state
compliance, for determining why state failure to ensure compliance persists,
and for communicating these findings to the President and Congress.
They need to be able to provide reliable and regular assessments of
their state's compliance with IDEA, as well as a realistic picture of
the toll of noncompliance on children and families in their state, to
federal and state leaders, and to the public at large.
Finding # III B.2
OSEP did not have an explicit objective standard for assessing whether
noncompliance with IDEA requirements found in any given state was systemic.
OSEP staff indicated that a state was found noncompliant with a given
requirement only if the failure to ensure compliance was "systemic,"
(i.e., observed by monitors "with some frequency").[189] For example,
a finding of noncompliance could have meant that out of 10 schools monitored,
anywhere from three to 10 had failed to ensure compliance with a given
requirement. There was no established standard (quantitative or qualitative)
by which OSEP made a determination that noncompliance was systemic.
Recommendation # III B.2A
The Department of Education should establish and use national compliance
standards and objective measures for assessing state progress toward
better performance results for children with disabilities and for achieving
full compliance with IDEA.
Recommendation # III B.2B
OSEP should work with the states, students with disabilities, their
parents, and other stakeholders to identify the core data elements needed
to assess whether compliance standards are being met and performance
results for children with disabilities are improving statewide.
Recommendation # III B.2C
OSEP should closely monitor state progress in developing reliable
data collection and reporting mechanisms (qualitative and quantitative)
that adequately and accurately assess both state compliance and performance
results for children with disabilities. This recommendation coincides
with a central goal of the 1997 IDEA reauthorization to focus IDEA implementation
more closely on objective performance standards and results measures.
Recommendation # III B.2D
OSEP should make as its own compliance monitoring priority for the
next five years the assessment of state progress toward creating reliable
and comprehensive data (quantitative and qualitative) to support effective
state compliance monitoring capabilities.
Finding # III B.3
OSEP's monitoring reports did not clearly indicate which IDEA requirements
were monitored, why they were monitored, and what the compliance status
was.
OSEP reported placing "a strong emphasis on those requirements most
closely associated with positive results for students with disabilities,"[190]
and appeared to monitor a stable core of requirements in every state.
It used information gathered during the pre-site process to help determine
what to monitor.
Federal monitoring reports, however, did not display all the requirements
monitored, nor did they consistently specify the requirements with which
the state appeared to comply, based on the sample of districts, student
files, interviews, and state policies and procedures, as well as state
monitoring documents reviewed. In some cases, requirements with which
the state appeared to comply were mentioned in report cover letters,
and in other cases they were not. Therefore, it was not always possible
to determine all the requirements monitored and the compliance status
of each.
Recommendation # III B.3
All OSEP monitoring reports should consistently state what requirements
were monitored, the rationale for choosing those requirements, which
ones were in compliance, and which ones were out of compliance.
Such reporting would have enabled a comparison between reports and
over time. It also would have enabled an understanding of where states
were determined definitively to be in compliance, which might have offered
opportunities for positive acknowledgment.
Finding # III B.4
OSEP monitoring did not include observation of students; rather,
it involved collecting and reading documents and interviewing education
personnel.
In the experience of OSEP staff, observing students consumed a great
deal of time and often did not yield enough conclusive data to make
clear-cut compliance determinations. Many parents and advocates criticized
the monitoring process, however, as one that focused too much on talking
with education personnel and reading documentation. Their concern was
that this approach did not provide an adequate measure of the extent
to which students were being appropriately served.
Recommendation # III B.4A
OSEP's monitoring process in each state should routinely include
an ethnically diverse sample of children who are matched to their records
and who are interviewed, along with their parents and service providers,
for a determination of whether the law's requirements are being met
on their behalf.
Routinely including interviews with children from ethnically diverse
backgrounds, their parents, and service providers in the monitoring
process would have provided a more grounded understanding of the states'
compliance picture.
Recommendation # III B.4B
OSEP should review the files of more students placed in out-of-state
residential facilities, and increase the number of compliance monitoring
site visits to separate public and private facilities, as well as to
state schools for students who are deaf or have visual impairments.
Finding # III B.5
A complete historical inventory of all monitoring reports issued
for every state is not available, but since 1990 all reports issued
have been maintained.
The historical monitoring data in these early reports were crucial to
understanding what areas had remained chronically out of compliance
and how states had progressed in improving compliance over time. In
addition, an analysis of the historical data could have provided insight
into the impact of corrective action plans on reducing noncompliance.
Recommendation # III B.5
OSEP should undertake efforts to construct a database with all
monitoring reports, corrective action plans, and compliance agreements
ever issued by OSEP, to standardize all newly issued reports, plans,
and agreements and capture in the database, and to undertake a historical
analysis of compliance for each state.
A historical picture of each state's compliance status will greatly
inform OSEP's monitoring work and allow for examining trends over time.
In addition, it will provide a sense of the persistence of certain problems
in particular states.
Finding # III B.6
Important IDEA requirements appeared to be unmonitored or under-monitored.
The federal monitoring reports examined from all fifty states showed
that compliance with one important requirement appeared not to be monitored,
and compliance with another appeared to be under-monitored.
IDEA required states to have "[p]rocedures for adopting, if appropriate,
promising practices, materials, and technology, proven effective through
research and demonstration."[191] There was no evidence in the texts
of the monitoring reports reviewed that compliance with this requirement
had ever been monitored.
SEAs are required to "ensure" that public agencies "ensure" that "[u]nless
the IEP of a child with a disability requires some other arrangement,
the child is educated in the school that he or she would attend if nondisabled."[192]
In the fifty reports reviewed, OSEP had made findings of noncompliance
with this requirement in two states--North Dakota[193] and Utah.[194]
Both reports were issued in 1994, the first year of reports reviewed.
There was no evidence in the texts of the other monitoring reports reviewed
that compliance with this requirement had been monitored.
Recommendation # III B.6
OSEP should ensure that every IDEA requirement is monitored in
every state at regular intervals, even if not core requirements or not
identified by the state as problem noncompliance areas.
OSEP should develop a method for ensuring that requirements often
overlooked in the monitoring process are monitored at regular intervals.
The compliance status of states with noncore requirements or requirements
rarely identified as problem areas during the pre-site visit (i.e.,
implementation of promising practices) should be monitored at regular
intervals in every state.
Finding # III B.7
OSEP frequently took too long to issue monitoring reports.
For reports issued between 1994 and 1998, the amount of time from the
date the monitoring visit ended and the date of the final report was
greater than 90 days for 45 states, greater than180 days for 27 states,
and greater than 365 days for 12 states. DoED's present policy is to
issue the report approximately five to six months (150-180 days) after
the on-site visit, but recognizes the need to get the reports out more
quickly. OSEP has requested additional staff, and is working on a new
strategy to reduce lag time before the release of each monitoring report.
Recommendation # III B.7
OSEP should issue the monitoring report as soon as possible after
the site-visit, preferably within 60 days (two months).
OSEP is requesting resources and working on a new strategy to issue
the monitoring reports in more timely fashion. An issuance date no later
than two months following the end of the end of the monitoring visit
should be established.
Finding # III B. 8
The Department has been making monitoring reports available through
the Department of Education's web site as soon as they are issued.
The most recent reports (or the report's executive summary) from 27
states have been made available on the OSEP web site. All new reports
will be placed there in the future. Placing the reports on the web site
will allow timely access for a broad range of stakeholders and a greater
awareness of the monitoring issues in each state.
Finding # III B.9
The Department began implementing a new "continuous improvement"
monitoring process where the state is a collaborator with the Federal
Government and other constituencies to assess the educational success
of students with disabilities and to design and implement steps for
improvement on an ongoing basis.
Recommendation # III B.9
The Department should conduct a formal assessment of the new continuous
improvement monitoring process within the next three years. The assessment
should incorporate broad stakeholder input, particularly from students
with disabilities and their parents, on the effectiveness of the new
process in improving compliance with Part B and improvements in educational
results for students with disabilities.
The following section presents an analysis
of findings on areas of noncompliance reported in the last three monitoring
reports for six states.
To Second File of Part
III, Complaint Handling and Enforcement
To TOC,
IDEA Compliance Report
