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Question: Meeting the Requirements or Gross Non-Compliance?

"OSEP continues to tell our State Department of Education that they "meet the requirements of IDEA." People think this means the schools in our state are in compliance with IDEA. Yet, Our state annual performance report documents gross noncompliance by our schools that do not provide FAPE and LRE.

When OSEP replies to the states' annual performance reports and says they 'meet the requirements of Part B', what does this mean?

• That the state office has met only the state-level requirements of monitoring, reporting, and enforcing?
• Or does this mean that OSEP determined that the state determined that the school districts within the state met the requirements for providing FAPE in the LRE?"

How is State Compliance Measured?

OSEP is responsible for ensuring that states provide children with disabilities with a free appropriate public education (FAPE) in the least restrictive environment (LRE). This means that states are required to ensure that schools are in substantive, not just procedural compliance.

"The Office of Special Education Programs (OSEP) is responsible for ensuring states' compliance with the Individuals with Disabilities Education Act (IDEA). IDEA guarantees the free appropriate public education (FAPE) of children with disabilities in the least restrictive environment (LRE). To assist states in meeting the needs of students with disabilities, OSEP has developed a continuous improvement monitoring process."

Unfortunately, OSEP relies on data provided by the states to decide if a state is in compliance. The states evaluate themselves. In the past, USDOE allowed states to "self monitor" (evaluate their performance) and send the results to the feds. I do not think this has changed. To my knowledge, the feds do not do independent audits of the data provided by states to ensure that it is correct.

(Caveat: I am not 100% sure of this.)??

Monitoring Data and Other Public Information

OSEP indicates that the determination of whether a state meets requirements or needs assistance or intervention is based on data provided by the state. "The Department’s determination is based on the totality of the State’s data and information including the State’s FFY 2006 APR and revised SPP, other State-reported data, and other publicly available information."

State determination letters include this statement from OSEP: "See the enclosure entitled “How the Department Made Determinations under Section 616(d) of the IDEA in 2008” for further details."

This document includes this statement...We also considered other public information available to the Department, including information from OSEP monitoring activities, performance under pre-existing special conditions, and longstanding audit findings. We did not consider a State to "meet requirements" if the State had unresolved special conditions uses, OSEP monitoring findings, including verification visit findings, or longstanding audit issues or was under a compliance agreement. The length of time the problem had existed, the magnitude of the problem, and the State's' response to the problem, including progress the State had made to correct the problem, were factors we considered in determining whether the State should be identified as "in need of assistance," "in need of intervention," or "in need of substantial intervention."

Intended Outcomes of DOE Programs

USDOE describes "annual plans" and "performance reports as follows:"

Department-wide annual plans and performance reports describe the goals and intended outcomes of U.S. Department of Education programs and initiatives, including Special Education Programs. Annual strategies and targets are published in performance plans in advance of each fiscal year; results are reported in annual performance and accountability reports following the fiscal year end.

IDEA State Performance Plans and Annual Yearly Reports

“In accordance with 20 U.S.C. 1416(b)(1) of Part B of the Individuals with Disabilities Education Act (IDEA or Part B), each State has in place a Part B State performance plan (Part B - SPP) that evaluates the State’s efforts to implement the requirements and purposes of Part B and describes how the State will improve such implementation.”

This page describes statutory requirements for state performance reports and includes links to Part B State Performance Plans (SPP) Letters and Annual Performance Report (APR) Letters.

"In accordance with 20 U.S.C. 1416(2)(C)(ii) each state shall report annually to the public on the performance of each of its local educational agencies according to the targets in its SPP. The state also shall report annually to the Secretary on its performance according to its SPP targets. This report is called the Part B Annual Performance Report (APR)."

An Example: Hawai'i

Part B Annual Performance Report (APR) Letter for Hawai'i indicates the state "meets requirements for Part B of the IDEA".

Here is the most recent "response table" regarding IDEA compliance for Hawai'i.

When OSEP determined that Hawai'i "meets the requirements of Part B of IDEA," their determination seems to be based on data provided by the Hawai'i DOE.

In several categories listed in the table, new data provided by the Hawai'i DOE caused OSEP to find the state in compliance. In other categories, OSEP determined that the state did not meet targets and was not in compliance.

Monitoring Priorities and Indicators for Hawai'i

A quick review of "Monitoring Priorities and Indicators" shows that data provided to OSEP is at odds with data reported elsewhere.

In #1, the HI DOE reported that 80% of kids with IEPs graduate with a regular high school diploma.

BUT ... the HI DOE reported that 75% of ALL students graduate with a high school diploma. And the Education Research Center reports that about 67 percent of all students in Hawaii graduate from high school with a regular diploma.

Does anyone believe that more students with IEPs graduate with a high school diploma than regular ed kids?

Source: Alliance for Excellent Education http://www.all4ed.org/files/Hawaii_wc.pdf

In their report to OSEP, the HI DOE reported that 3.1% of kids with IEPs dropped out of high school, compared with all youth who drop out.

If 75% of students graduate with a high school diploma, 25% do not - and most are dropouts.

Further, in #5, the state was to report the percentage of children with IEPs who were removed from regular education classes less than 21%, more than 60%, and those served in separate schools, residential placements, etc. According to the data provided by HI DOE, the state did not meet their performance targets ("slippage").

#7 is interesting - percentage of preschool children with IEPs who demonstrate improved "positive social-emotional skills," "acquisition and use of early language/communication and early literacy skills, etc.

Wonderful data - where did it come from?

The same problems exist in other states.

To answer the question "what does 'meets requirements' mean, it may be useful to list the monitoring priorities and indicators where OSEP concluded that the state was not in compliance (and where the state revised their data in hopes that OSEP would find them in compliance).

If you use the OSEP report about failure to make progress or slippage, you will have OSEP data to rebut the state's claim that they are in compliance across the board.

Or you may want to do a Freedom of Information request for the data that supports the State's position.

US DOE Fails to Enforce IDEA

Back to School on Civil Rights Advancing the Federal Commitment to Leave No Child Behind was published by the National Council on Disability (NCD) in 2000. Back to School on Civil Rights is a shattering report about the complete failure of the U.S. Department of Education to enforce IDEA.

"Every State was out of compliance with IDEA requirements to some degree; in the sampling of states studied, noncompliance persisted over many years." Read more about the Report.

School District Refuses to Comply

Pete sued the state of Virginia because a school district refused to comply with a hearing officer's order.

"Private citizens should not have to sue their government to force their government to do what the law requires. When the federal government refuses to require states to obey the law, it should come as no surprise when states refuse to require local school districts to obey the law." - Pete Wright in White v. the Virginia Board of Education.

(Taken from Pete's comments re: Va sped regs- needs more info??)

In White v. the Virginia Board of Education, Kirk Schroeder, Jo Lynne DeMary, Judith Douglas, and H. Douglas Cox, Virginia asserted that the Commonwealth was immune from suit, that a federal special education regulation was invalid, and that the local school board has sole authority over the school district.

After Virginia asserted that a federal special education regulation was invalid, the U. S. Department of Education, in March 27, 2000 correspondence from Heumann to DeMary, threatened to refer the Virginia Board of Education to the U. S. Department of Justice.

In the subsequent White litigation, Due Process Hearing Officer Raymond Davis, appointed in the normal course by the Virginia Supreme Court, ordered reimbursement to the parents, such reimbursement to be paid by Virginia, and not the local school district.

After Virginia refused to pay the attorney’s fees, in violation of 20 USC 1415, Pete Wright filed a “Complaint and Petition for Attorney’s Fees” in the U. S. District Court against the Board, Schroeder, DeMary, Douglas, and Cox.

In those proceedings, the Department maintained that, despite losing at due process, they were not required to pay attorneys fees and were immune from suit.

U. S. Magistrate Judge Dennis Dohnal, in a six page decision tracking the history of the case, dismissed those arguments and awarded attorneys fees and prejudgment interest against the state.

More Resources

Questions and Answers on Monitoring, Technical Assistance, and Enforcement from US DOE Building the Legacy: IDEA 2004

OSEP/MSIP State Contacts Part B and Part C

IDEA Report Cards 2007: Did Your State Pass or Fail?

Pass or Fail? Check Your School District's Report Card 2008

What You Need to Know About IDEA 2004

 

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Created 07/02/09
Revised 00/00/00