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Back to School on Civil Rights

IV. The National Compliance Picture Over Time: Analysis of Annual Reports to Congress 1978-1998
A. Introduction Since the enactment of the Education for All Handicapped Children Act, the Department of Education (DoED) has been required to present to Congress an annual report "describing the progress being made in implementing the Act."[229] The Annual Reports are of critical importance, as they are the primary vehicles for communication between the Department of Education and not only Congress, but the public at large. They also provide a unique historical view of the implementation of the law.

B. Methodology This analysis took a longitudinal view of the Annual Reports in an effort to trace the progress made in implementing the Individuals with Disabilities Education Act (IDEA) over a twenty-year period. The Annual Reports included statistics on the number of children in various disability categories who receive services, as well as descriptions of new services being developed and numbers of personnel devoted to special education. Monitoring the performance and implementation of the law at the state level is crucial to "our nation's progress in providing a free and appropriate public education [FAPE]"[230] for all children with disabilities. Such monitoring should reveal deficiencies, violations of the law, trends in these areas across states and over time, corrections that have taken place, and progress toward compliance. Thus, this section of the analysis focuses on those portions of the Annual Reports devoted to the monitoring function of the Department of Education between 1978 and 1998.

C. Procedural Focus Annual Report sections centered on OSEP monitoring were primarily procedural rather than substantive, making it difficult to draw any longitudinal conclusions about progress in implementing FAPE. For example, the 1990 report states that "OSEP uses a program review process to determine if SEAs are carrying out their responsibilities" and then explains that "those program review procedures are described in this section."[231]

D. Definition of Monitoring The identification of the discussion of monitoring in each Annual Report was hampered by the lack of a standard reporting structure and a changeable definition of the monitoring function. At times, monitoring broadly included review of states' annual plans, yearly program compliance review, processing of individual complaints, and technical assistance to the states.[232] At other times, monitoring was defined as a narrow aspect of DoED's or the Office of Special Education Programs' (OSEP's) administrative role in overseeing IDEA.[233] For example, in 1983 such overall administration encompassed complaint management, technical assistance, discretionary contract/grant program operation, and policy review.[234]

Later, monitoring was treated as a subset of federal review of state activities.[235] For example, in 1986 the Report stated that "the program review process has two parts... review of plans submitted by states. . . and monitoring to assure adherence to state plans."[236] When viewed as part of a general review of the states, monitoring was often treated as secondary to review of "annual" state plans that were submitted to DoED by each state every three years for funding approval. Monitoring activities were often named "compliance review," as distinguished from "plan review."

In the 1990s, references in the Annual Reports to monitoring were sometimes explicit and sometimes imbedded in descriptions of the overall federal review process. The 1990 report acknowledged the difficulty in pinning down the monitoring function, as "the federal program review activities . . . are closely related to other OSEP activities. . . as part of a comprehensive system of overall assistance to the states."[237]

This section of the analysis uses the term "monitoring" to apply to the federal assessment of the states' compliance with the provisions of IDEA, including an assessment of the SEAs' activities to ensure the compliance in their respective states of all the public agencies responsible for providing educational services for children with disabilities in accordance with Part B requirements.

E. Procedural Changes When the Department of Education reported on its monitoring activities, a large portion of the discussion was devoted to the procedural aspects of monitoring rather than results or findings. Further, procedures for monitoring were modified frequently (as exemplified by this year's retooling of the process, discussed elsewhere). These modifications not only required explanation within each of the Annual Reports, but also hampered efforts to compare results of the monitoring process from year to year.

In 1979 and 1980, it was not surprising that DoED focused on the development of procedures. During these years, the Bureau (as OSEP was then named) established a system of regular visits to half of the states each year, consisting of a five-day stay by four or more staff members and including visits to local programs, state programs, and state agencies, as well as interviews with state and local officials, program administrators, parents, teachers, and an advisors' panel.[238] In 1980, the Bureau reiterated that it "attempts" regular one-week visits to half of the states each year, using the same basic procedure as described for 1979. That year, an extra emphasis was placed on technical assistance to SEAs during these visits.[239]

The 1980 Annual Report also provided an example of the Reports' somewhat cursory description of results of monitoring, as compared to the detailed descriptions of procedural matters. In 1980, the substantive analyses of the outcome of earlier visits were as follows: states "performed well" in development of Annual Program Plans, reporting, and administration of funds;. IEPs were in place but not in compliance; LRE policies at the state level were good, although individual schools were "having difficulty" implementing them;[240] complaints, while monitored by the Bureau, were handled at the level of the state departments of education. The Annual Report states that 320 complaints were processed between October 1978 and July 1979, and that most complaints were about appropriate placement of children, but results of the processed complaints are not mentioned.[241] The substantive discussion of findings by the Bureau appeared to concentrate on procedural matters, such as successful design of rules, fund administration, and timely processing of complaints. This characteristic was repeated in most Reports in the past 20 years, as in the Eighth Annual Report, which gave "a detailed description of SEP's revised comprehensive compliance review system."[242]

The emphasis on procedure increased as DoED refined its monitoring procedures to involve less scrutiny of outcomes. In 1981, DoED stated that "the Office will redirect its monitoring procedures . . . to focus on assuring that states are effectively monitoring local education agencies." DoED appeared to have increased its reliance on information provided directly by states themselves.[243] The following year, DoED explained, "OSEP's role has necessarily changed. In fact, federal efforts since the enactment of P.L. 94-142 have periodically been modified to provide the states with increasing flexibility to implement the law in a manner consistent with local precedents and resources."[244] The Report continued, "It should be noted that the current regulations were never expected to survive indefinitely without change."[245]

Understandably, procedures underwent annual alterations in the early stages of the implementation of IDEA; since then, such changes have continued. The 1985 Report stated that "internal SEP concerns supplemented by questions from . . . Congress resulted in an intensive analysis of monitoring procedures that may lead to certain revisions in the process."[246] The following year, OSEP began a staggered state plan schedule, as permitted by the Education Department General Administrative Regulations (EDGAR) to "allow for better coordination between the state plan and monitoring procedures."[247]

The 1990 substantive discussion of the effectiveness of IDEA changed little. Most of the comments were praiseworthy but vague and directed at successful structures, such as "types and numbers of personnel providing services," and "continuing growth in SEA [state education agency] capacity to assess and assure conformity with EHA-B [Education for All Handicapped Children Act] requirements."[248] Another procedural accomplishment highlighted that year was the elimination of a backlog of incomplete monitoring reports.[249] The 1990 Report also stated that "it is anticipated that the monitoring process will continue to evolve and undergo adjustments in response to changing management needs."[250] The 1997 Report stated that "over the past four years, OSEP has worked intensively to reorient and strengthen its monitoring system."[251]

F. Lack of Trend Analysis The Annual Reports noted that corrective actions with deadlines were established by OSEP for noncompliant programs. Each state created and submitted a Corrective Action Plan (CAP), which was followed by a verification visit by OSEP for evidence of completion submitted by the state.[252] Successive Annual Reports did not give information about these verification visits or evidence from the states.

In 1981, DoED began a policy of individualizing monitoring to "take into account the particular conditions and variations that exist among the states."[253] That policy hampered the ability to make progress comparisons between states. Because OSEP visited one half of the states in a given year, at most, no follow-up of individual state progress could be gleaned by comparing one year's Annual Report with the next. Because states were not individually named in summaries of compliance review findings, only OSEP had the information to trace such progress. While OSEP looked first at a state's Annual Program Plan, then monitored its compliance, and then watched for implementation of a Corrective Action Plan, it did not appear to link its findings from one stage to the next. In fact, one report noted, "this information cannot be used as a basis for conclusions regarding compliance," but "it will be used as a basis for discussing trends that may reflect problems in the implementation of federal requirements."[254] This discussion was not found.

The Eleventh Annual Report compiled data from 1985 to 1988 on noncompliance problems, noting particular trouble with SEA monitoring procedures, but the data were not examined longitudinally, and states were not individually identified. The 1990 report held that "by reviewing and assessing these data, OSEP may identify trends that raise concerns about the implementation of federal law,"[255] but went on to say that "issues or concerns" could not be found because "from year to year the problems identified change and the problems differ from state to state as well."

G. Charts on Monitoring Findings The most straightforward method of conveying results from monitoring activities is through graphs or charts. As might reasonably be expected, for the first few years, no charts tallied information collected from monitoring of the states.[256] In the following years, many charts focused, like the accompanying text, on procedural matters, such as the timeliness of complaint turnaround, steps of the monitoring process, and schedules of past and future reviews.

Out of the nineteen Reports, less than one half contained charts actually listing areas of state level noncompliance.[257] Seven Reports listed areas of state plan deficiencies; however, these charts addressed plan policies that were corrected prior to a state receiving funding, but did not address the effectiveness of implementation of those policies.[258] For instance, in 1996 state plans were deficient in providing for procedural safeguards, individualized education programs (IEPs), least restrictive environment (LRE), right to education, private school participation, confidentiality, and general supervision. These deficiencies required "clarification or revision," and all such problems were resolved prior to final plan approval.[259]

From 1990 to 1993, such plan deficiency charts were included, but no chart summaries were given reflecting results of compliance monitoring. More recently, the Reports returned to including charts on noncompliance along with, or in place of, plan deficiency summaries. These charts lacked detail, and the categories of noncompliance were broad and undefined, varying from year to year and making longitudinal analysis difficult. Also, the tallies of states that failed to ensure compliance for each category did not identify which states were in violation of their plans. Reports never contained follow-up charts on corrective actions taken by those states found to be out of compliance.

H. Intra-Departmental Policy Conflicts The Office for Civil Rights (OCR) first became involved in the administration of IDEA in 1981. The Annual Report for that year stated that OCR now had the opportunity to review state annual program plans, but assured that its review of the plans must not exceed 75 days.[260] At that time, OCR was not involved in the complaint management process, but eventually would take over those complaints involving Section 504. OSEP received complaints filed by individuals or entities against SEAs or Local Education Agencies (LEAs). An OSEP "specialist" corresponded with the complainant and forwarded the complaint to the state to resolve. Although OSEP monitored each case until it was resolved, all follow-up action was taken by the state education agency.[261]

From October 15, 1980, until September 1, 1981, OSEP handled 150 complaints and referred to OCR 105 others that also alleged a violation covered by Section 504.[262] Of the 105 referred complaints, 70 concerned placement or related services. In the 1982 Annual Report, DoED reported that OCR had returned or closed 41 cases by August 3, 1981.[263] DoED also reported that OCR took an average of four months to close each case.[264] While no review of OSEP's management of the complaint process was given, the Report discussed problems between OSEP and OCR producing "inconsistent policy interpretations" on "identical issues," leading to the creation of a task force.[265]

In 1983, the Annual Report again analyzed complaints sent to OCR and OCR's turnaround record, although there was no discussion of complaints handled directly by OSEP.[266] Suggestions of cooperation between the two offices appeared in the Eighth Annual Report, which reported data from both offices being used in combination by OSEP to assist states "in improving information collection and remedying the possible problems the information suggest[ed]."[267] While some tension may have existed between OSEP and OCR regarding policy interpretations of the law in the complaint-handling process, it was largely resolved through a Memorandum of Understanding (MOU) between the two offices.[268]

In later Annual Reports, the IDEA complaint process was rarely discussed except in the context of evaluating SEA policies for addressing complaints. Although DoED retained authority to involve itself in complaints based on IDEA that did not involve Section 504, one problem at the state level was a "failure to inform complainants of their right to request that the U.S. Secretary of Education review the state's handling of the complaints."[269] This state responsibility was eliminated, however, with the passage of IDEA '97. OSEP remains "responsible for ensuring that each SEA . . . implements a complaint-management system that satisfies the requirements" set forth in 76.780 B 76.782 of EDGAR.[270]

I. Reports Demonstrate the Evolution of DoED's View of Its Mandate The Department of Education has moved from a somewhat regulatory to a more cooperative stance vis-a-vis the state programs it oversees. Changes in monitoring procedures, often at the behest of the states, demonstrated the shift in focus, as did the change from language about "rights" and "oversight," to the language of "outcomes" and "efforts."

IDEA anticipated that DoED would play a dual role of assisting states and enforcing the law with respect to the states. Several Annual Reports provided explanations of the law's withholding provision as prologues to discussions of monitoring, but then made no further reference to actual or contemplated use of that provision.[271] Other reports acknowledged that primarily "review activities provide information."[272] DoED's ambiguity about the purpose of monitoring in these contexts suggested a disconnect between monitoring and enforcement.

J. Language Changes The language in the Table of Contents of the Annual Reports reflected a gradual shift in emphasis. Monitoring discussions were found under the following headings and accompanying subheadings each year: Table 22: Headings in Annual Reports

1979-1980	What Administrative Mechanisms are in Place?/*Monitoring*
1981-1983	Office of Special Education Program's Administration of the Law/*Monitoring*
1984-1986	Assisting States and Localities in Educating All Handicapped Children/SEP Review* of State Programs*
1987-1989	Efforts to Assess and Assure the Effectiveness of Programs Educating Handicapped Children/Program Review
1990-1996	Assisting States and Localities in Educating All Children with Disabilities/Federal Program Review* Process*
1997	School Programs and Services/Monitoring Compliance with IDEA

DoED moved from labeling its activities as "administration," suggesting federal control, to "assisting," indicating more state control.

Additionally, it began by referring to "monitoring" states, implying enforcement, and then shifted to the more open-ended language of "review" and "teams." For instance, "when the SEA is asked to correct identified deficiencies, the PAR (Program Administrative Review) team works with the state by providing technical assistance that enables the SEA to comply with the law."[273] By 1990, enforcement seemed secondary to teaming with and assisting states; review was described as "verification and support of the Corrective Action Plan,"[274] and OSEP began to hold "biannual meetings to exchange information with SEA officials."[275]

K. Trend Toward Partnership with States Initially, Program Review involved lengthy visits to states and meetings with a variety of stakeholder groups, including teachers and parents. Visits to some LEAs occurred in each state.[276] Program Plans were reviewed each year before money was released to the states.

In 1982, Annual Program Plans begin to receive three-year approval to reduce time and paperwork for states.[277] Additionally, the Bureau's monitoring activities "focused predominantly on assuring and strengthening state capacity to effectively monitor LEAs and public and private agencies."[278] Parent involvement and visits to LEAs were no longer emphasized. DoED put greater emphasis on off-site monitoring of information submitted and data collected, describing those methods as "less intrusive" but "more continuous." It concentrated on developing procedures and obtaining information to create individual state profiles to be regularly reviewed and updated.[279] These changes were made in response to an executive order of January 29, 1981, to reduce the burden and cost on the states and to ensure that regulations were no stricter than the demands of the statute.[280]

By 1983, monitoring consisted of developing screening documents, plus three options: (1) off-site monitoring, (2) on-site monitoring at the state level, or (3) on-site monitoring at the state and local level, although an on-site review was required for each state at least once every three years.[281] After such program review, the SEAs responded with voluntary implementation deadlines, requests for technical assistance, and self-imposed deadlines.[282] These changes seemed to reflect more state autonomy and less direct enforcement. The 1990 Report cited EHA-B 612(6) as "specifically designat[ing] the SEA as the central point of responsibility and accountability."[283] Nonetheless, the Eleventh Annual Report gave reassurance that the review procedure "has the capacity to verify that the requirements of the Act are being carried out."[284] The Report further stated that OSEP would "determine with states the appropriate remedial measures that must be taken to correct identified discrepancies between the requirements and states' policies and procedures."[285] In 1990, a new procedure was implemented.

DoED considered increased reliance on states to perform enforcement activities an appropriate response "to the growing capacity of state education agencies to assure the availability of a free appropriate public education to all handicapped children."[286] "Federal efforts since the enactment of P.L. 94-142 had periodically been modified to provide the states with increasing flexibility to implement the law in a manner consistent with local precedents and resources,"[287] another Report noted. Technical assistance was also increasingly targeted to problems of individual states and coordinated with monitoring activities. In one of the few places an Annual Report focused on a specific problem area, it was discussed in the technical assistance section. The 1983 Report found that states were still "experiencing some difficulty with certain requirements of the laws."[288]

L. Findings and Recommendations

Finding # IV.1A
There was no consistency in either format or content for reporting about IDEA monitoring in the Annual Reports to Congress between 1978 and 1998.
The changing definitions and language used to describe monitoring from one Annual Report to the next made it difficult to compare the status of monitoring/compliance findings over time. Major variations in the content organization of reports published in different years further challenged the reader in locating the information on monitoring.

Finding # IV.1B
The Annual Reports did not provide a picture of how compliance with IDEA changes over time.
A historical or longitudinal analysis of compliance is not required in the Annual Report by law.

Recommendation # IV.1
The Department of Education and the Department of Justice should issue an annual report to the President and Congress on IDEA monitoring, compliance, enforcement, and technical assistance.
The Annual Report issued by DoED is not required to, and therefore does not, report on federal and state level enforcement activities or the due process/judicial system. A joint report by DoED and the Department of Justice to address this information void is needed. This proposed joint report should include a description of all monitoring activities for the year (including corrective action plan follow-up visits), the findings of the monitoring activities in terms of compliance and noncompliance, and a description/analysis of cases in which the Department of Justice is involved. Complaints and investigations of the Department of Education's Office for Civil Rights that are IDEA-related should be presented. The report should present the current activities and findings in a context and format that will allow for historical/longitudinal analysis.

Finding # IV.2
There was little information in the Department of Education's Annual Reports to Congress about the relationship among findings of state noncompliance with IDEA, technical assistance used by states to achieve compliance, and enforcement actions taken for failure to correct noncompliance.
Links between compliance monitoring, technical assistance, and enforcement action were not evident in the Annual Reports, making it difficult to piece together a picture of the state of IDEA compliance across the nation. Reporting on enforcement authority and activity at the federal or state levels, the due process/judicial system, or even court cases in which the Department of Justice is involved is not required by law.

Recommendation # IV.2
The Department of Education and the Department of Justice should routinely issue reports that provide longitudinal analyses tracking noncompliance findings, informal and formal enforcement actions taken by the Federal Government and use of technical assistance resources to correct noncompliance with IDEA for each state over time.
These reports would enable the reader to determine how states have responded to corrective action, technical assistance, and enforcement actions. These reports would provide the data needed to document progress and achievements as well as identify areas that need continued improvement.

Part V presents an overview of some private litigation challenging states' failures to ensure compliance with Part B of IDEA, and describes, in part, the outcomes of key cases impacting state monitoring systems.

Go to Part V, IDEA Litigation Challenging State Noncompliance

Go to TOC, IDEA Compliance Report


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