Wrightslaw - Consolidated List of Findings and Recommendations

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Consolidated List of Findings and Recommendations

I. The Law, the Compliance/Enforcement Scheme, and the Context

Finding # I.1
The effectiveness of DoED’s internal coordination among the various offices and teams involved in IDEA implementation and enforcement is unclear.

LOSEP is responsible for IDEA compliance monitoring and enforcement consulting with several other offices within the Department of Education, as needed. Within OSEP, the close integration of enforcement responsibility with responsibilities for state grant administration, compliance monitoring, technical assistance, and program improvement can lead to conflicting internal objectives. There appears to be no process for assessing whether the current approach to internal collaboration has helped or hindered IDEA enforcement.

Recommendation # I.1
The Department of Education should assess whether its current internal organization and division of IDEA grant administration and enforcement functions/responsibilities effectively supports the Department’s goals to correct persistent state noncompliance. OSEP, the Office for Civil Rights (OCR), and perhaps the Office of General Counsel (OGC) should further articulate the objectives of their joint activities in relation to the enforcement of IDEA, Section 504, and ADA Title II, and describe the specific mechanisms and divisions of responsibility they have developed to implement each objective. In addition, OSEP and OCR should evaluate the effectiveness of their current collaboration for improving compliance monitoring and enforcement of IDEA.

Finding # I.2
The Department of Education’s mechanisms for external coordination and collaboration to better implement and enforce IDEA need to be evaluated.

Recommendation # I.2
The Department of Education should also articulate the objectives and mechanisms for collaborating with other government agencies (i.e., the Department of Justice and the Department of the Interior) on the enforcement of IDEA, and evaluate their effectiveness on an ongoing basis. At least every two years, DoED’s annual report to Congress should report on the effectiveness of these mechanisms and the agencies’ progress toward meeting their collaboration objectives.

II. Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA

Finding # II.1A
The ongoing struggles of many students with disabilities, their parents, and advocates to obtain services under IDEA leaves them with the impression that the Federal Government is not enforcing the law.

Finding # II.1B
As a result of 25 years of non-enforcement by the Federal Government, parents are the main enforcement vehicle for ensuring compliance with IDEA.

Recommendation # II.1A
The Department of Education must exercise leadership in enforcing the law, with parents as partners and resources in carrying out their enforcement mandate.

Recommendation # II.1B
The Department of Education should publicly articulate and implement an enforcement philosophy and plan that includes the strategic use of litigation and administrative sanctions.
When noncompliance is not corrected within the agreed upon time frame, the Department of Education should aggressively enforce the law, using clearly defined appropriate sanctions to improve accountability and achieve compliance with the law.

Finding # II.2
Parents have identified a number of obstacles to their participation as full partners in the IDEA monitoring and enforcement processes.

Parents have not been invited consistently to be involved in the monitoring process, and if invited, have not been given an opportunity consistently to be heard.

Parents are not knowledgeable enough about either the requirements of IDEA or the monitoring and enforcement processes.

The presentation of compliance information in the monitoring reports is inconsistent from one monitoring period to the next, making evaluation of improvements over time difficult.

The recommendations below address how some of these obstacles can be corrected.

Recommendation # II.2A
OSEP should encourage the involvement of students with disabilities and their parents as resources to improve monitoring.
Parents stressed that they and their children have the "frontline" experience and expertise with the districts in their states and would like increased involvement in directing the monitoring process and resources to areas of noncompliance that they have already identified.

Recommendation # II.2B
Congress should direct a change in the mission of the P&As and IL centers to include a priority focus on special education advocacy, and in collaboration with the PTIs, the development of a collaborative special education advocacy strategy for their states.
The combined resources of PTIs, P&As, and IL centers are needed to develop and maintain special education advocacy services and programs statewide at a level commensurate with the need of students with disabilities and their parents for assistance in obtaining services and supports under IDEA, as well as participating effectively in monitoring and enforcement.

Recommendation # II.2C
OSEP should standardize the presentation of the monitoring reports and data. Such standardization is essential for accurate and credible evaluation of compliance from one monitoring period to the next.

III. Grant Administration, Compliance Monitoring, Complaint Handling, and Enforcement Functions

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.

Although 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.

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 (GAO) 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 non-government 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 non-compliant with a given requirement only if the failure to ensure compliance was "systemic," (i.e., observed by monitors "with some frequency").[1] 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,"[2] and appeared to monitor a stable core of requirements in every state. It also 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 their 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."[3]

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."[4]

In the fifty reports reviewed, OSEP had made findings of noncompliance with this requirement in two states North Dakota[5] and Utah.[6] 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 non-core 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 than 180 days for 27 states, and greater than 365 days for 12 states. The Department’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
DoED has been making monitoring reports available through the Department of Education’s web site as soon as they are issued.

[NOTE FROM WRIGHTSLAW: To find out if your state's monitoring report is available, follow the link below:]

http://www.ed.gov/offices/OSERS/OSEP/monrepts/index.html

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
DoED 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
DoED 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 producing improvements in educational results for students with disabilities.

Finding # III B.10
Some significant state noncompliance areas have changed over time.

At the start of the federal monitoring process, large numbers of children with disabilities were routinely and inappropriately placed in separate educational settings in many states. Recent findings have shown that while such routine inappropriate placements have decreased in many states, a lack of adequate supports to children placed in regular classrooms was still prevalent.

Finding # III B.11
States frequently failed to ensure compliance with the same requirement for years and for several rounds of monitoring.

Looking at the three most recent monitoring reports (ranging from 1983 to 1998) for each of six states, as a group they came into compliance with only 18 of 66 non-compliant requirements (27%) identified in the first or second of the three monitoring reports. For 48 (73%) of the 66 noncompliant requirements found, either noncompliance was found again or no compliance finding was reported at all in the third monitoring report.

Of the 18 requirements with which states came into compliance, 10 (56%) had to do with the state’s own administrative functioning (five review and approval of LEA applications; three complaint management; one hearing decisions within time lines; and one effectiveness of the monitoring system at identifying noncompliance).

Recommendation # III B.11
OSEP should strengthen compliance monitoring and enforcement by recognizing states that are performing well, offering ongoing technical assistance to states to correct noncompliance, and applying consequences consistently when improvement objectives are not met.

Finding # III B.12
The federal IDEA enforcement process has not provided clear and certain consequences for failures to correct noncompliance that would motivate the states toward compliance.

SEAs cannot be motivated to garner the will and the resources to come into compliance, when the record shows that sanctions rarely occur.

Recommendation # III B.12A
The Department of Education’s approach to remedying state noncompliance should link noncompliance findings with

(1) measurable improvement objectives to be met within a defined time frame, and

(2) a range of specific enforcement sanctions that will be incurred for failures to meet each of the improvement objectives within the specified time frames.

Recommendation # III B.12B
The Department of Education, the Department of Justice, and the Department of the Interior, with input from students with disabilities, their parents, and other stakeholders, should develop a broad range of sanctions linked to a state’s failure to correct noncompliance within the time frames agreed upon in their corrective action plans.

A wider range of options is needed to allow more flexibility and consistency in the enforcement of IDEA. These options should clearly articulate the sanctions available with examples of circumstances in which each would appropriately be applied.

Finding # III B.13
Some state compliance monitoring systems are inadequate because of a lack of staff, lack of resources, and lack of a systematic, coordinated approach statewide.

Recommendation # III B.13
OSEP should increase its monitoring of state monitoring systems, offer targeted technical assistance to correct deficiencies, and enforce when the state fails to take corrective action.

Finding # III B.14
Compliance monitoring at both the state and federal levels is not sufficiently data-driven, objective, or consistent, relying too little on agreed upon indicators and measures of performance.

Recommendation # III B.14
The Department of Education should maintain a priority on working with the states to improve accountability for implementing IDEA through effective data collection and analysis.

OSEP should continue working with states to improve their compliance monitoring and enforcement capabilities through data collection related to key performance indicators and regular, thorough, and ongoing analysis of the data. Without these activities, the extent and nature of reported compliance problems cannot adequately be understood or corrected. Among the reported problems that require continuous monitoring are the provision of FAPE and related educational services to eligible youth with disabilities in state and local detention and correctional systems, as well as the disproportionate representation of minority students with disabilities in separate educational settings and in the state child welfare and juvenile justice systems.

Finding # III C.1
There is no federal complaint process for IDEA to complement and expand the scope of complaint handling systems at the state level.

There is a need for a federal complaint handling system to provide students with disabilities and their parents a vehicle for filing and resolving complaints alleging widespread or systemic violations occurring at the SEA or LEA levels. Because state complaint-handling systems are largely geared to addressing individual complaints, such a federal process would help to close an existing gap in the enforcement infrastructure.

Recommendation # III C.1A
Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total increase in Part B funding to build the Department of Education’s and Department of Justice’s enforcement infrastructure to help drive improvements in state compliance and better results for children. Priorities for use of these funds should include a federal process for handling specific categories of IDEA complaints and the expansion of technical assistance for improving state complaint handling, monitoring, and enforcement systems.

Recommendation # III C.1B
Congress should amend IDEA to create a complaint handling process at the federal level to address systemic violations occurring in SEAs or LEAs.

Congress should designate the Department of Justice to administer the process and allocate adequate funding to enable it to take on this new role. This new federal complaint process should be designed to complement, not supplant, state-level complaint-handling and due process procedures. The federal process should be simple to use and easy to understand by parents and students. The Department of Justice should develop and disseminate explicit criteria for the types of complaints alleging systemic violations it will prioritize given its limited resources.

Finding # III C.2
Information about IDEA complaints filed with state complaint systems is often limited.

The only complaint process for IDEA is at the state level. Information and analyses about the nature and outcome of state complaints are not readily available to complainants or other stakeholders at the state level and are not nationally compiled on a state-by-state basis.

Recommendation # III C.2
The Secretary of Education should require states to submit annually a summary analysis of all state complaints alleging violations of IDEA that includes a listing of complaints received by category and by LEA, with a brief description of the allegations, opening and closing dates, and type of resolution.

Under IDEA, the Secretary of Education may require the states to submit any data deemed necessary to administer the law.[7] These analyses should inform OSEP’s monitoring, compliance, and enforcement activities. This information should be shared with OCR and the Department of Justice. It should be widely disseminated to stakeholders in the state.

Finding # III C.3
State complaint systems under IDEA need improvement.

According to the Inspector General’s report, state complaint systems should be improved and more intensely monitored by OSEP. While the IDEA ‘97 regulations intended to improve state complaint systems, OSEP has lacked the necessary resources to conduct such evaluations.

Recommendation # III C.3
OSERS should work intensively with states to improve state complaint systems.

OSERS should identify model practices in states and provide technical assistance for improvement of systems in states to include development of a statewide mechanism for tracking all complaints and capturing basic information about each complaint, such as nature of complaint, a time line for resolution, an outcome, and the satisfaction of the complainant with outcome. OSEP should monitor the adequacy of state complaint systems to produce accurate accounting of all complaints filed and data sufficient to analyze the effectiveness of complaint handling throughout the state.

Finding # III D.1
The Department of Education has identified six enforcement actions it has taken against states for noncompliance with IDEA Part B, all within the last six years.

According to information provided by the Department of Education, only six enforcement actions have been taken under IDEA Part B since its enactment. Five of these enforcement actions were related to attaching special conditions to the grant award or developing compliance agreements. The other was an attempt to withhold funds from a state, which was overruled by the court. All have occurred since 1993.

Recommendation # III D.1
The Department of Education and the Department of Justice, with input from students with disabilities, their parents, and other stakeholders, should develop objective criteria for utilizing compliance agreements and special conditions as enforcement actions.
These criteria should be based on certain outcomes of the monitoring process. For example, if a state fails to ensure compliance with a particular requirement for a certain period of time, after the provision of technical assistance and an opportunity for correction, it would immediately be required to develop a compliance plan. If such a plan were not fully implemented by a certain date, a greater sanction would be prescribed (see discussion under Part VII about new approaches to monitoring in state systems).

Finding # III D.2
The Department of Education has withheld federal funds from a state because of noncompliance with Part B of IDEA only once in the past 25 years.

In 1994, DoED briefly withheld funds from the Commonwealth of Virginia because of a state policy that denied any services to special education students who were suspended or expelled from school. Although the Department lost its case against Virginia, IDEA was subsequently amended to clarify that the Virginia policy was illegal. The 1997 amendments to IDEA also explicitly gave DoED the authority to withhold a partial amounts of funds.

Recommendation # III D.2
The Department of Education and the Department of Justice, with input from students with disabilities, their parents, and other stakeholders, should develop a broad range of options for withholding partial funds from non-compliant states and the criteria (triggers) for when they will be used.

Consideration for how partial withholding of funds could be utilized might include the notion of withholding state administrative funds for a state that fails to ensure compliance with state monitoring requirements and using those funds to hire an independent entity to conduct state monitoring. Again, withholding of funds should never be a surprise to anyone. Rather, it should be the predictable result of certain behavior.

Finding # III D.3
Political resistance to IDEA enforcement from Congressional delegations and state administrations of the non-compliant state may have a chilling effect on enforcement.

DoED enforcement actions in Pennsylvania and Virginia resulted in letters from members of Congress and the Governor of Virginia, requesting that the Secretary rescind the actions. The Secretary did not rescind either action. In some instances, the members who wrote questioning and protesting the DoED’s actions had key roles in overseeing DoED’s funding or programs, particularly with respect to IDEA. Such political resistance may cause DoED to be hesitant in pursuing enforcement, impacting future enforcement efforts.

Recommendation # III D.3A
The Department of Education should take the lead in educating both Congress and state legislators about the failure of states to ensure compliance with IDEA and how this affects children with disabilities and their families.

The Department of Education should exercise its leadership as enforcer of IDEA to educate federal, state, and local legislators about the extent to which the law has not been fully implemented and the toll on children with disabilities, their families, and their communities. Specifically, DoED should brief the members of each state delegation before its planned monitoring visits to discuss the technical assistance resources available to states in correcting compliance problems, enforcement options, and the long-term consequences of persistent noncompliance for children with disabilities. DoED should urge legislators to take responsibility for helping their states achieve compliance.

The Department of Education should also be proactive in implementing a well-timed and coordinated communication strategy for each planned enforcement action it takes, and it should foster dialogue about the issues. The strategy should include media outreach and briefings targeted to stakeholders and other interested parties, including federal, state, and local officials; parent groups; and others.

Recommendation # III D.3B
The Department of Education should post any letters it receives from members of Congress questioning enforcement actions related to IDEA on the DoED web site and distribute them to Parent Training and Information Centers, Protection and Advocacy Systems, and other legal advocacy organizations.

Such inquiries by members of Congress provide opportunities for parents and their advocates to educate Congress about IDEA noncompliance in their state and the toll it takes on their constituents.

Finding # III D.4A
The Department of Education has not yet provided policy guidance regarding criteria for referral to the Department of Justice, authorized by the 1997 amendments to IDEA.

While new regulations provide some information on the process of referral to the Department of Justice, they do not clarify the criteria for making such a referral.

Finding # III D.4B
The Department of Education has never referred a state to the Department of Justice for substantial noncompliance with IDEA.

Authority for the Department of Education to make such referrals was made explicit in the 1997 IDEA reauthorization.

Recommendation # III D.4
The Department of Education and the Department of Justice, with input from students with disabilities, their parents, and other stakeholders, should develop objective measures for determining "substantial noncompliance," the point at which a state will be referred to the Department of Justice for legal action.

IV. The National Compliance Picture Over Time:
Analysis of Annual Reports to Congress 1978-1998

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 DOJ 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.

V. IDEA Litigation Challenging State Noncompliance

Finding # V.1
Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance.

The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.

Recommendation # V.1A
Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts.

Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act for low cost legal services must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.

Recommendation # V.1B
OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers; the private bar; and nonprofit legal services centers for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.

Finding # V.2
Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.

Recommendation # V.2
OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state’s failure to correct specific non-compliant conditions within the agreed time frame.

OSEP should also encourage the state’s use of sanctions in this manner when the state’s compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.

VI. The Role of the Department of Justice

Finding #VI.1
The Department of Justice does not have independent authority under IDEA to pursue IDEA investigations and enforcement against non-compliant educational entities.

The Department of Justice can pursue enforcement action against state educational entities only if a referral is made from the Department of Education.

Recommendation # VI.1
Congress should amend IDEA to provide the Department of Justice with independent authority to investigate and litigate against school districts or states where pattern and practice violations of IDEA exist.

The Department of Justice should play a greater role overall in the enforcement of IDEA. DOJ is not plagued by the conflicting roles of grant manager and law enforcer with the same entity. As an agency that specializes primarily in enforcing the law, DOJ’s first responsibility is to those protected by the laws it enforces. DOJ is not as susceptible to political pressure from states and their Congressional delegations when initiating enforcement action because it has no pre-existing economic relationship (grant maker-grantee) with the defendant. DOJ can initiate an investigation upon receiving a complaint or other information and coordinate with the Department of Education throughout case development. Information about coordinated enforcement activities should be included in DOJ’s Annual Report to Congress.

Finding # VI.2
The Department of Justice has played a minimal role in IDEA litigation, participating in only 26 IDEA cases at the Supreme Court and Appellate Court levels in the past 25 years.

Recommendation # VI.2
The Department of Justice should exercise greater leadership in IDEA enforcement by initiating litigation against noncompliant states, publicizing its actions, and collaborating with stakeholders on their legal stance and its implications.

The Department of Justice should take the initiative to identify key cases involving noncompliance with important provisions of IDEA such as LRE, and aggressively litigate to put noncompliant states on notice that the law is now being enforced. In doing so, DOJ should actively seek the input of key stakeholders on their legal positions vis-a-vis these cases and the policy implications.

Finding # VI.3
The Department of Justice has no structured mechanism for finding or determining what IDEA cases to participate in, other than reviewing legal journals and networking informally with advocacy groups.

Recommendation # VI.3
The Department of Justice should develop a system for tracking and monitoring litigation related to IDEA and articulate explicit criteria for determining DOJ participation.

VII. Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates

Finding # VII.1
During 1999, OSEP committed about one-third of its technical assistance resources to informational programs for students, parents, and families, an increase from previous years.

This increase showed a clear commitment to enhancing the ability of students and parents to participate in the educational planning process by developing and disseminating training and informational materials and resources, providing peer and professional support, and strengthening parent organizations through capacity building.

Recommendation # VII.1
OSERS’ should strongly promote inter- and intra-agency collaboration to leverage existing resources available to help states correct areas of noncompliance. The objective of this collaboration should be to make available the technical assistance materials and programs SEAs and LEAs may request or be required to accept in order to correct specific noncompliance problems.

Finding # VII.2
Only 2 percent of OSERS’ resource list publications provided support and information to students themselves in planning their own educational and transition programs.

OSER’s resource materials and programs needed greater emphasis on helping students with disabilities to understand and advocate for their civil rights as students in public schools and in the transition to living as adults with disabilities in their communities. As OSERS continues to stress transition from school to work and community life, students and their parents must understand how IDEA, the Americans with Disabilities Act (ADA), the Fair Housing Act (FHAA), and Section 504 of the Rehabilitation Act impact their opportunities for meaningful integration, employment, and access to post-secondary educational programs.

Recommendation # VII.2
OSERS’ should prepare students for effective self-advocacy in their education planning and transition to employment and independent living by (1) expanding its resource publications dealing with these issues, (2) developing training initiatives and technical assistance materials, and (3) supporting model student-led self-advocacy programs.

OSEP should develop materials and provide training for students with disabilities and their parents about the provisions of the ADA, Section 504, FHAA, and other pertinent disability laws, to help young adults with disabilities understand their civil rights and inform them about the programs available to assist their transition from school to independent living in the community, employment, and post-secondary education. Greater emphasis on self-advocacy also will prepare students with disabilities and their families to support state and federal compliance monitoring and enforcement activities more effectively.

Finding # VII.3
OSEP’s outreach priorities and resource materials did not address judicial interpretations of IDEA and OSEP policies in a way that assists students with disabilities and their parents in understanding of their implications.

Since schools are familiar with legal developments, students and parents can be disadvantaged without this same information.

Recommendation # VII.3
OSEP should fund the development of materials and provide training and technical assistance for parents and students on the implications of judicial interpretations of IDEA court cases and OSEP policies.

Finding # VII.4
Current technical assistance initiatives have not met the need for materials, training, and technical assistance to help students with disabilities and parents understand and evaluate their states’ monitoring system.

Recommendation # VII.4
OSEP should initiate and develop a program to train students with disabilities and parents in evaluating the effectiveness of their state’s IDEA compliance monitoring systems and their state’s self-assessment process.

Finding # VII.5
Twenty-two percent of technical assistance and informational materials from the resource list were either directed to non-English speaking audiences or available in languages other than English.

Recommendation # VII.5
OSERS should continue to expand its initiatives to serve non-English speaking groups and create culturally appropriate training materials by increasing outreach to minority students and parents; enhancing the capability of the Technical Assistance Alliance, PTIs, the National Rehabilitation Information Center (NARIC), and NIDRR research projects to create culturally appropriate non-English language materials; and translating more existing materials into languages other than English.

This percentage is a notable increase from previous years, yet there are still too few culturally appropriate materials available in languages other than English in relation to the number of students and their families needing them.

Finding # VII.6
The need for training of students with disabilities and their parents in the requirements of IDEA is especially urgent in communities where noncompliance persists over time.

Despite a steady increase over time in the amount of technical assistance materials available to under-served populations of students with disabilities and their families, noncompliance still tends to persist at a higher rate and over longer periods of time in these communities.

The resource list shows that materials are still scarce for students with disabilities in the juvenile justice, immigration and naturalization, and child-welfare systems, as well as for students attending schools operated or funded by the Bureau of Indian Affairs (BIA). Multicultural and language-appropriate materials for these groups are scarcer still.

Recommendation # VII.6A
OSEP should expand its program support for initiatives that promote educational opportunities and rights for under-served populations of children and youth with disabilities and their families. More programs are needed to explain IDEA’s requirements in light of the unique needs of students with disabilities involved in the juvenile justice, immigration and naturalization, and child-welfare systems, as well as in schools operated or funded by the Bureau of Indian Affairs (BIA), to their families and advocates, as follows:

culturally appropriate technical assistance to ensure the ability of Native American children with disabilities, their families, tribal leaders, and advocates in every interested tribe to participate as full partners in implementing IDEA in their communities. Culturally appropriate training and technical assistance should be developed and delivered through the satellite offices of disability technical assistance centers (DBTACs) around the country that are managed and staffed primarily by Native Americans.

training of the appropriate players in the juvenile justice system, including judicial and institutional personnel, in IDEA’s civil rights requirements, how they apply within the juvenile justice system, and ways the law can be used to help minimize detention of children with disabilities in the juvenile justice system.

training of the appropriate players in the immigration and naturalization and child welfare systems, including federal and state agency, judicial, and institutional personnel, in IDEA’s civil rights requirements.

Recommendation # VII.6B
OSEP, in conjunction with the Department of Justice Office of Juvenile Justice and Delinquency Prevention (OJJDP), should also fund training programs for special education lawyers on applying IDEA in the criminal justice system, and for public defenders and staff on IDEA’s educational requirements to enable both to advocate more effectively for the educational rights of students with disabilities involved in state and local criminal justice systems.

Finding # VII.7A
The Department of Education’s IDEA technical assistance program addressed a wide range of important information and training needs. The overall strategy, however, did not seem to place priority on developing a comprehensive, coordinated, and targeted technical assistance system in each state focused on empowering students with disabilities and their families for effective self-advocacy to address documented areas of noncompliance statewide.

Finding # VII.7B
The advocacy training programs and services available in most states fell far short of the existing need.

Recommendation # VII.7
The Department of Education should give priority support to the formation of a comprehensive, high quality, and coordinated technical assistance system in each state by developing a separate OSEP-administered funding stream to aid federally funded advocacy groups in coordinating and making available self-advocacy training programs, resources, and services to students with disabilities and their parents throughout the state.

Elements of the coordinated technical assistance systems should include the following:

The availability of a lawyer at every state PTI center, protection and advocacy agency, and independent living center able to provide competent legal advice to students with disabilities and their parents in advocating for their rights.

Self-advocacy training programs for students with disabilities and their parents focused on civil rights awareness, education and transition planning, and independent living in the community.

The establishment of a national backup center to make legal materials, training, and other supports available for attorneys working on IDEA cases and issues at the state level.

Expansion of involvement by the private bar and legal services organizations in providing legal advice to students with disabilities and their parents in advocating for their legal rights under IDEA.

The key disability advocacy organizations at the state level (PTIs, P&As, and IL centers) need additional funding to effectively implement a joint collaborative strategy for increased outreach and education of the general public and state legislators, technical assistance and advocacy for transition planning and services, independent monitoring of state compliance with IDEA, and affordable legal assistance to parents advocating for their child with a disability. The goal of the collaborative strategy is to increase each state’s compliance with FAPE, LRE, Individual Education Plan (IEP), Transition, General Supervision, Procedural Safeguards, and Protection in Evaluation.

To Index, IDEA Compliance Report

To Endnotes, IDEA Compliance Report


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