List of Interviews for This Study

1. Jane West interview with Diane Lipton of the Disability Rights Education Defense Fund, 2/12/98
   
   
2. Jane West interview with Steve Aleman and Nancy Jones of the Congressional Research Service, Library of Congress, 3/25/98
   
   
3. Jane West interview with Tom Hehir, JoLeta Reynolds, Ruth Ryder of the Office of Special Education Programs (OSEP), U.S. Department of Education, 4/8/98
   
   
4. Jane West interview with Martha Fields, National Association of State Directors of Special Education, 4/8/98
   
   
5. Jane West and Nancy Mudrick interview with Rebecca Fitch, Office for Civil Rights, U.S. Department of Education, 5/14/98
   
   
6. Jane West meeting with Consortium for Citizens with Disabilities Task Force on Civil Rights, 5/20/98
   
   
7. Jane West and Nancy Mudrick interview with Eileen Hanrahan, Office for Civil Rights, U.S. Department of Education, 5/28/98
   
   
8. Jane West and Nancy Mudrick interview with Elinor Baker and Ting Ting Elinore, Office for Civil Rights, U.S. Department of Education, 5/28/98
   
   
9. Jane West interview with Patty McGill-Smith, National Parent Network, 6/10/98
   
   
10. Jane West and Jillian Cutler interview with Ruth Ryder and Lois Taylor, Office of Special Education Programs, U.S. Department of Education, 6/23/98
    
    
11. Jane West interview with Diane Lipton, Disability Rights Education and Defense Fund, 7/1/98
    
    
12. Jane West and Jillian Cutler interview with Ruth Ryder and Lois Taylor, Office of Special Education Programs, U.S. Department of Education, 7/25/98
    
    
13. Jane West and Jillian Cutler interview with Ruth Ryder and Lois Taylor, U.S. Department of Education, 7/27/98
    
    
14. Jane West telephone interview with Suzanne Sheridan, Office of General Counsel (OGC), U.S. Department of Education, 12/9/98
    
    
15. Jane West telephone interview with Mark Gross, Appellate Section of Civil Rights Division, U.S. Department of Justice, 1/4/99
    
    
16. Jane West telephone interview with Robert Kopp, Civil Division, U.S. Department of Justice, 1/7/99
    
    
17. Jillian Cutter interviews with fourteen parents from California, Florida, Illinois, New Mexico, New York, North Carolina, Pennsylvania, Texas, and Vermont, 8/4-8/11/1998
    
    
18. Mary Lou Breslin telephone interview with Curtis Decker, National Association of Protection and Advocacy Systems (NAPAS), 1/21/99
    
    
19. Kathleen Blank telephone interview with JoLeta Reynolds, OSEP, 7/99
    
    
20. Kathleen Blank telephone interview with Larry Ringer, OSEP, 8/19/99
    
    
21. Kathleen Blank interview with Ruth Ryder and Larry Ringer, OSEP, 8/24/99
    
    
22. Kathleen Blank telephone interview with Suzanne Sheridan, OGC, 9/99
    
    
23. Kathleen Blank telephone interview with Ronald Petracca, OGC, U.S. Department of Education, 10/26/99
    
    
24. Kathleen Blank telephone interview with JoLeta Reynolds, OSEP, 10/28/99

Appendix B

Educational Inequity and Children With Disabilities:
Ten Problem Areas IDEA Was Intended to Address[1]

Through the Individuals with Disabilities Education Act (IDEA), Congress attempted to remedy the most egregious problems facing children with disabilities in the education system. Although IDEA has improved the system considerably, problems in all of these areas persist today. The following are 10 problem areas facing children with disabilities in accessing public education that Congress intended to address in enacting IDEA in 1975: (1) exclusion, (2) special needs, (3) disciplinary exclusion, (4) evaluation, (5) lack of educational goals, (6) placement/segregation, (7) related services, (8) parental involvement, (9) access to records, and (10) due process.

(1) Exclusion

Prior to the early 1970s, state education laws frequently excluded entire categories of children with disabilities. Under IDEA and Section 504 of the Rehabilitation Act, a free appropriate public education must be made available to all eligible children with disabilities.

(2) Special Needs

Historically, society has failed to recognize the special needs of children with disabilities. School districts frequently have failed to identify these children, and even when they were identified as needing special assistance, they were frequently shuffled from one agency to another. Not surprisingly, many of them "fell through the cracks." Today, special education legislation requires that school districts seek out and identify children with disabilities and coordinate and make FAPE available to them.

(3) Disciplinary Exclusion

Even when a school district recognized that a child had special needs, the child would sometimes break school rules or, because of the child's disability, be unable to conform his or her behavior to school rules and then be excluded from the educational program on that basis. Schools would then suspend, transfer, expel, or otherwise prevent the child's attendance.

(4) Evaluation

In the past, placement in special classes was often based on the results of a single evaluation instrument, such as the "IQ" test. Several years ago parents challenged a state superintendent of schools for placing a disproportionate number of African-American children in "educable mentally retarded" classes due to a culturally biased testing process.[2] Congress addressed the evaluation problem by requiring nondiscriminatory assessment procedures.

(5) Educational Goals

Traditionally, special education focused on placement; thus, educators largely ignored the need to develop individualized instruction and monitor goals for individual children. Congress therefore established the Individualized Education Program (IEP) as the means through which schools develop educational plans and goals and monitor progress of individual children.

(6) Placement/Segregation

Placement in special education historically meant placement in segregated programs or institutions. Segregation, coupled with the absence of goal orientation, created a crisis in the quality of special education. This spurred Congress to mandate the concept of placement in the least restrictive environment (LRE), which pervades IDEA.

(7) Related Services

Historically, many children needed related services outside the educational system's previously conceived areas of responsibility; among them were occupational therapy, physical therapy, family counseling, and so forth. Many people viewed these services as peripheral to the goals of public education. To guarantee the children's rights, Congress declared related services to be essential if a child needs them to benefit from special education.

(8) Parental Involvement

Traditionally, parents were denied a role in the special education process. In contrast, IDEA considers parental involvement essential and affords parents a primary role in decision making. IDEA requires school officials to notify parents whenever the school proposes any change to the child's identification, evaluation, placement, or provision of FAPE, as well as to obtain their consent and involve them in the development and review of their child's IEP. They must notify parents and obtain their consent when making an evaluation or reevaluation for the initial provision of special education. School officials must also notify parents when refusing a change to their child's identification, evaluation, placement, or provision of FAPE.

(9) Access to Records

Schools also frequently denied parent requests for access to their child's records if they wished to question a placement or other education-related decision. Under IDEA, parents may "inspect and review," and may obtain copies of any educational records, if not having copies of those records will impede the exercise of their right to "inspect and review."

10) Due Process

Even with access to records, parents who wished to challenge school actions were often hampered by a lack of procedural safeguards. IDEA solves this problem by establishing a specific system for achieving due process.

[1] Unless otherwise indicated, the information in this section comes from Arlene Mayerson, The Educational Process, Disability Rights Education and Defense Fund, 1990.

[2] Larry P. v. Riles, 793 F.2d 969 (1984).

Appendix C

Basic Requirements of IDEA

The basic requirements of the Individuals with Disabilities Act (IDEA) outlined in this appendix are (1) free appropriate public education (FAPE), (2) least restrictive environment (LRE), (3) parent and student rights, (4) child-find, (5) evaluation procedures, (6) individualized education program (IEP), and (7) procedural safeguards.

1. Free Appropriate Public Education

IDEA defines a free appropriate public education as special education and related services provided at public expense that meet the standards of the state education agency (SEA). It includes appropriate pre-, elementary, and secondary school education in the state involved and must be provided in accordance with the IEPs.[1] In other words, FAPE for an individual student is defined by the student's IEP. Because of this student-specific approach, "provision of a FAPE to children with disabilities is a potent requirement of IDEA,"[2] and represents a revolutionary advance in education, the notion of tailoring education to fit individual student needs.

In providing FAPE to children with disabilities, schools cannot simply provide one type of educational program. Children with disabilities must be afforded "the same variety of educational programs and services...as other children, including art, music, industrial arts, consumer and homemaking education, and vocational education."[3]

Schools are required to make FAPE available to every child who qualifies under the statute. IDEA '97 added an explicit provision requiring FAPE even for children with disabilities who have been suspended or expelled.[4] States are obliged to make FAPE available to all children with disabilities through age 21, unless its application to those children would be inconsistent with state law or practice, or the order of any court, respecting the provision of public education. States are not obliged to make FAPE available to children ages 18-21 incarcerated in state correctional facilities, where state law does not require that special education and related services under IDEA be provided if the child was not actually identified as a child with a disability or did not have an IEP in his or her educational placement before incarceration in an adult correctional facility.[5]

Free Education

IDEA requires that all aspects of the educational program, including related services, be provided without cost to parents or guardians. School districts are not necessarily required to pay for everything; some services may be funded by other agencies.

Free education sometimes extends to private schools as well. When a placement decision calls for attendance at a private school (the school district places the child in a private school), the student must be provided with special education and related services in conformance with the IEP at no cost to the parents. Moreover, the child is to be afforded all the rights guaranteed under IDEA, and the child must be provided an education that meets the standards that apply to education provided by state and local education agencies (LEAs).[6] The SEA is responsible for monitoring compliance with these requirements, for disseminating standards to these schools, and for involving them in the development of state standards.[7] Children placed by their parents in private schools have no right to FAPE if the public agency has made FAPE available.[8]

Special Education

Special education is defined as specially designed instruction at no cost to parents to meet the unique needs of a child with a disability.[9] As IDEA '97 emphasizes, special education does not refer to a place or a particular classroom, school, or other setting. Once instruction has been individualized to address a particular child's needs, it can be provided in a variety of settings appropriate for the child, including the regular education classroom. Thus, it would be illegal for a school district to provide "special education" by automatically placing a child with a disability in a particular class based on a disability label.

Related Services

Related services are often crucial for creating "program accessibility" in public school for children with disabilities. The law defines related services as follows:

"transportation and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children."[10]

Comparable Benefits and Services

Section 504 of the Rehabilitation Act also requires school systems to provide students with disabilities with benefits and services comparable to those provided to nondisabled students. The requirement flows from regulations prohibiting discriminatory practices. Children with disabilities must be afforded an opportunity to participate in or benefit from an aid, benefit, or service that is equal to that afforded others or be provided an aid, benefit, or service that is as effective as that provided to others.[11]

2. Least Restrictive Environment

IDEA mandates that children with disabilities be provided with special education and related services in the least restrictive environment appropriate for the individual child with a disability; that is, the environment that provides for maximum interaction with nondisabled children consistent with the child's needs. This key substantive right is perhaps the linchpin of IDEA and of the other disability civil rights laws, sometimes referred to as the "integration mandate." The statute compels states and schools systems to ensure

"that to the maximum extent appropriate, children with disabilities, including those children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs 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 achieved satisfactorily."[12]

Every step away from the regular education classroom must be justified by a compelling educational justification in light of the law's strong preference for educating children with disabilities in the regular education classroom.

In addition, school districts must place children with disabilities in the same schools they would have attended if not disabled unless a student's IEP requires some other arrangement.[13] Schools must also provide nonacademic and extracurricular services and activities that comply with the LRE requirements. Meals, recess, athletics, transportation, counseling services, health services, recreation activities, special interest groups or clubs, and employment and employment-related assistance all fall into this category.[14] Agencies must ensure that each child with a disability participates with other children in these services and activities "to the maximum extent appropriate to the [child's] needs."[15]

The integration mandate embodies Congressional judgment that educating children with disabilities with children without disabilities is fundamental to providing equal educational opportunity and to the goals of the Act. If children with disabilities are to lead independent lives fully integrated in the community, children with and without disabilities must come to know each other in the schools, our primary socializing institution. Learning, by all children, occurs in significant part from other children and from modeling from each other.[16] Further, separate schooling for children with disabilities has historically often resulted in inequities in resources, watered-down curricula, low expectations, and substandard education. The LRE requirement is intended to reverse these practices.

The IDEA implementing regulations call for the availability of a continuum of placement options ranging from instruction in regular classes, resource room instruction, and itinerant instruction to residential placement in a private school. The decision regarding which setting is suitable for a particular child is to be made on an individual basis.

Placement decisions must be made annually and on an individual basis (i.e., must be based on an IEP)--focusing on the child's educational needs rather than administrative convenience.[17]

Children in institutions--both public and private--are also protected by the LRE mandate.[18] Each state educational agency is responsible for making appropriate arrangements with public and private institutions (e.g., a memorandum of agreement or special implementation procedures) to ensure that this requirement is fulfilled.[19]

Staff Preparation

The SEA must ensure that staff at local schools receive the necessary training and technical assistance to fulfill LRE requirements.[20] The SEA is also responsible for monitoring and assisting local school districts to ensure compliance with LRE.[21]

The Act's requirement that the state establish a Comprehensive System of Personnel Development is intended to ensure that personnel are adequately trained in "preferred practices" and that the state adopts and disseminates information about such practices to teachers and school systems. The requirement is crucial to ensuring general and special education teachers understand and appropriately implement the LRE and general curriculum requirements in the law.

3. Parent and Student Rights

Another of IDEA's central and unprecedented requirements is the key role given to parents of children with disabilities. IDEA was the first special education statute to carve out a central role for parents. [22] The law makes them part of the education team that develops, reviews, and revises the IEP. Numerous provisions in the regulations calling for parent participation detail the responsibilities of the school system to include parents in this crucial IEP process.[23] IDEA also gives parents substantial control including the right to dispute agency practices and decisions. Parents can appeal such decisions through formal due process hearings, in which an impartial administrative hearing officer listens to both sides and issues a final decision.[24] Either the parent or the school district can appeal a hearing decision to state or federal court.

4. Child Find

The "child-find" provisions require agencies to identify, locate, and evaluate all children with disabilities from birth to age 21 in their jurisdiction. The policies and procedures on file to establish state eligibility must include a child-find procedure to ensure the following:

(1) All children with disabilities residing in the state, including children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated.

(2) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.[25]

Clearly, Congress intended schools to aggressively undertake this task. The burden of responsibility is on the schools, not the parents, to identify eligible children.

5. Evaluation

The abuses of special education programs, as well as their successes, are inextricably bound to the evaluation process. An evaluation is a procedure for discerning the nature and severity of a child's disability and his or her educational needs. Placement of a disproportionate number of minority students in classes for educable mentally retarded children based on discriminatory evaluation procedures is one example of an abusive process. Culturally biased testing or reliance on a single instrument or opinion can lead to this situation. On the other hand, many children are never assessed, or are assessed too late; other children are misclassified or receive inadequate evaluations (e.g., important aspects of the child's behavior, performance, or health are not diagnosed). In these instances, the child is denied essential educational services. Those children who receive a thorough and appropriate evaluation are more likely to receive services tailored to their needs. A good evaluation forms the cornerstone of a free appropriate public education.

IDEA and its regulations recognize that fair evaluation procedures, which culminate in comprehensive and accurate assessments of children with disabilities, are necessary in order to maximize the benefits of special education and related services. IDEA requires agencies to conduct a full and individual evaluation of a child's needs before the initial provision of special education and related services to a child with a disability.[26] This initial evaluation requirement is significant because it was intended to halt the arbitrary placement practices that had pervaded special education.

The statute sets forth several specific provisions that educational agencies must follow in evaluating children with disabilities. Agencies are prohibited from using testing and evaluation materials and procedures that are culturally or racially discriminatory.[27] Agencies must provide and administer all tests and evaluation materials in the child's native language or primary mode of communication if at all feasible.[28] Evaluation materials must include those tailored to assess specific educational areas; a simple "IQ" test is inadequate.[29] When evaluating children with impaired sensory, manual, or speaking skills, materials must be selected and administered to ensure that the impairment itself will not distort or skew test results.[30] An assessment cannot rely on just one single criterion for determining a child's educational needs.[31] Evaluations must be conducted by a multidisciplinary group including at least one teacher or specialist knowledgeable about the suspected disability.[32]

Finally, each child with a disability or suspected of having a disability must be evaluated in all areas of the suspected disability. This may include health, vision, hearing, social, and emotional status, academic performance, and motor and communication abilities.[33]

Independent Evaluation

If parents disagree with the public agency's evaluation, they have a right to an independent educational evaluation at public expense.[34] If an agency-initiated hearing finds that the original evaluation was satisfactory, parents can still obtain an independent evaluation if they pay for it. If an independent evaluation is made at private expense, the results must be considered in any decision by the IEP team regarding provision of a free appropriate public education to the child.[35]

Re-evaluation

Recognizing that a person's needs and physical condition can change, the regulations specifically require that each child be re-evaluated at least once or more often every three years, if conditions warrant or if the parent or teacher requests it. If the parent or teacher requests it, the re-evaluation may be more frequent.[36] This provision protects children from becoming "forgotten" after initial placement in a special education program. It ensures that a child's changing educational needs are identified and that appropriate instructional strategies and interventions are utilized.

6. Individualized Education Program

The centerpiece of the IDEA, the individualized education program, is the central building block that parents use to ensure that an appropriate program is developed that meets their child's unique educational needs.

Under IDEA, public agencies, as well as private schools where children with disabilities are placed by school districts, must develop and implement an IEP for each of these students.[37] Public agencies must conduct meetings on at least an annual basis in order to develop, revise, or review each child's IEP.[38] The public agency must also ensure that an IEP team for each child includes

(1) the parents of the child,

(2) at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment),

(3) at least one special education teacher of the child or, if appropriate, at least one special education provider of the child,

(4) a representative of the public agency who

(i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities,

(ii) is knowledgeable about the general curriculum, and

(iii) is knowledgeable about the availability of resources of the public agency;

(5) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (2) through (6) of this section,

(6) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate, and

(7) if appropriate, the child[39]

The IEP is a written statement that must be in effect before special education and related services are provided to a child. After it is developed or reviewed, it must be implemented without undue delay. It must be developed, reviewed, and revised during meetings that include a representative of the school or agency who is qualified to provide or supervise the provision of special education; the child's special education teacher; the child's parents; the child, if appropriate; an individual who can interpret the instructional implications of evaluation results; and other individuals at the request of the parent or agency.

Contents of IEP

Each IEP must contain specific information regarding the child's educational needs. It must include the following:

a. A statement of present levels of performance including

i. how the child's disability affects involvement and progress in the general curriculum, and

ii. how, for preschoolers, the disability affects participation in appropriate activities.

b. A statement of measurable annual goals, including benchmarks or short-term objectives, related to

i. meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum, and

ii. meeting each of the child's other educational needs that result from the child's disability.

c. A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to

i. advance appropriately toward attaining the annual goals,

ii. be involved and progress in the general curriculum and to participate in extracurricular and other nonacademic activities, and

iii. be educated and participate with nondisabled children in the general curriculum and in extracurriculum and other nonacademic activities.

d. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class, in the general curriculum, and in other activities (extracurricular and other nonacademic activities).

e. A statement of any individual modifications needed for the student to participate in state- and districtwide assessments, or, if the IEP team determines that the child will not participate in such assessments, a statement of why such assessments are not appropriate and how the child will be assessed.

f. The projected date for the beginning of services and modifications and frequency, location, and duration of services and modifications.

g. Beginning at age 14, a statement of the child's transition service needs focusing on the child's course of study (such as participation in advanced-placement courses or vocational education programs).

h. A statement of how the child's progress toward the annual goals will be measured and how parents will be regularly informed (by such means as report cards), at least as often as parents of nondisabled children are informed of their nondisabled children's progress toward goals and the extent to which the progress is sufficient to enable the child to achieve the goals by the end of the year.

The references to the general education curriculum were added to the IEP requirements by IDEA '97. The LRE statements regarding any nonparticipation with children without disabilities were also strengthened in the reauthorization. IDEA '97 added some specific considerations for the IEP team regarding behavior needs, language needs of children with limited English proficiency, media needs for children who need instruction in Braille, communication needs for children who are deaf or hard of hearing, and assistive technology needs. The requirement that a child's IEP include a statement regarding the child's participation in state- and districtwide assessments reflects a new accountability requirement in the law. It is now expected that nearly all children with disabilities will participate in such assessments and districts will be held as accountable for their progress as they are for nondisabled children.

7. Procedural Safeguards

IDEA requires public agencies to establish and implement a system of procedural safeguards including the following:

• A right to the opportunity to examine records.[40]
  
  Parents have the right to examine all records pertaining to the identification, evaluation, or placement of a child, or to the provision of a free and appropriate education.
  
  
• A right to obtain independent educational evaluations and be assured protection in evaluation procedures.
  
  
• A right to prior notice.
  
  Schools cannot propose or refuse to identify, evaluate, or place a child, or provide a free appropriate public education to a child with or suspected of having a disability, without first notifying the parents in writing. This notice must be sent a reasonable time in advance of the proposed action. It must describe the school's proposal (e.g., change in placement), other options considered but discarded, or any test, evaluation procedure, record, or report used by the school as a basis for its proposal. It must be written in language "understood by the general public," and, if necessary, translated into the parents' native language (if officials know that the parents do not read, the notice must be read or otherwise communicated to them so that they understand what it means).
  
  
• A right to parental consent.[41]
  
  Schools must obtain parental consent before conducting any evaluation or initial provision of special education and related services. If parents do not consent, the agency can use the due process hearing procedure to obtain a decision to proceed with the evaluation or placement regardless of parental consent. Parents must be notified about their rights, the school's actions, and the outcome of the hearing, and their right to appeal.
  
  
• A right to an impartial due process hearing.[42]
  
  When parents disagree with the school on the identification, evaluation, placement, or their child's service needs, they can request a due process fair hearing before a neutral hearing officer.[43] The district or agency responsible for the child's education conducts and pays for the hearing. Further, the school is obligated to tell parents about free and low-cost legal or other relevant services such as expert witnesses. If a parent wins a hearing or subsequent appeal in court, a court may award attorney fees incurred in litigating the matter to the parents.
  
  
• A right to administrative appeal and civil action in state or federal court.
  
  
• A right to the provision of surrogate parents.
  
  
• A right to confidentiality.

[1] 20 U.S.C. § 1400(d)(1)(A), 1401(8)(D)(1997).

[2] Susanne Lea, The Heart of the Educational Process, Disability Rights Education and Defense Fund, 1980.

[3] 34 C.F.R. § 300.305.

[4] 34 C.F.R. § 300.300 (a)(1).

[5] 20 U.S.C. § 1401(3) and 1412(a)(1)(B)(ii).

[6] 34 C.F.R. § 300.401.

[7] 34 C.F.R. § 300.402.

[8] 20 U.S.C. § 1412 (a)(10)(c).

[9] 20 U.S.C. § 1401 (25).

[10] 34 C.F.R. § 300.16; see also 20 U.S.C. § 1401(22).

[11] 34 C.F.R. § 104.4(b)(ii), 104.4(b)(iii).

[12] 20 U.S.C. § 1412(a)(5).

[13] 34 C.F.R. § 300.552.

[14] 34 C.F.R. § 300.553.

[15] Id.

[16] Thomas K. Gilhool, The Right to an Effective Education: From Brown to PL 94-142 and Beyond. Dorothy Lipsky and Alan Gartner, Beyond Separate Education, 1989.

[17] 34 C.F.R. § 300.552.

[18] 34 C.F.R. § 300.554.

[19] Id.

[20] 34 C.F.R. § 300.555.

[21] 34 C.F.R. § 300.556.

[22] The term "parent" is defined to include legal guardians and designated surrogate parents. 20 U.S.C. § 1402(19).

[23] 34 C.F.R. § 300.344-300.345

[24] 34 C.F.R. § 300.506 et seq.

[25] 34 C.F.R. § 300.125(a)(1)(i)-(ii).

[26] 34 C.F.R. § 300.531 et seq.

[27] 20 U.S.C. § 1414(b)(3)(I).

[28] 20 U.S.C. § 1414(b)(3)(ii).

[29] 20 U.S.C. § 1414(b)(2) and (3).

[30] 34 C.F.R. § 300.532(c).

[31] 34 C.F.R. § 300.532(d).

[32] 34 C.F.R. § 300.532(e).

[33] 20 U.S.C. § 1414(b).

[34] 34 C.F.R. § 300.503(b).

[35] 34 C.F.R. § 300.503(c)(1).

[36] 34 C.F.R. § 534(b).

[37] 34 C.F.R. § 300.341.

[38] 34 C.F.R. § 300.343.

[39] 34 C.F.R. § 300.344.

[40] 34 C.F.R. § 300.502.

[41] 34 C.F.R. § 300.504(b).

[42] 34 C.F.R. § 300.500 et seq.

[43] "Neutral" means the officer is not employed by the school or agency servicing the child and does not have a "personal or professional" conflict of interest that would compromise his or her objectivity in the hearing. Both the Bureau of Education for the Handicapped (BEH) and the Office for Civil Rights (OCR) have stated that school board members cannot serve as hearing officers. (OCR Policy Interpretation No. 6, 43 F.R. 36036, August 14, 1978. BEH policy letter of April 19, 1978, 2 EHLR 211:21).

Appendix F

Responsibilities of Each Monitoring and State Improvement Team*

MONITORING

• Develop and implement a program of monitoring and technical assistance.
  
  
• Conduct pre-site monitoring activities, such as self-assessment, public meetings, outreach meetings, document review, and interviews with knowledgeable individuals, to assist in the identification of issues on which to focus.
  
  
• Carry out on-site activities, such as interviews with state education agency (SEA) officials, local education agency (LEA) administrators, and service providers, and document review, for the purpose of identifying areas of noncompliance and determining needed corrective action.
  
  
• Develop monitoring report to describe areas of noncompliance and needed corrective action.
  
  
• Work with state agencies to develop corrective action plan.
  
  
• Provide or coordinate the provision of technical assistance in the development and implementation of the corrective action plan activities.
  
  
• Conduct follow-up activities to determine the effectiveness of the completed corrective actions and determine the need for further corrective action activities.
  
  
• Maintain records and materials related to compliance monitoring.
  
  
• Respond to requests for information on the monitoring of states.
  
  
• Review monitoring procedures annually and recommend revisions to improve the effectiveness and efficiency of Monitoring and State Improvement Planning Division (MSIP) monitoring procedures.

ELIGIBILITY DOCUMENTATION/APPLICATION REVIEW

• Inform states of requirements and procedures for submitting eligibility (policy and procedures) documents/application.
  
  
• Track required eligibility documents/application submissions and follow up with state agencies, as needed.
  
  
• Review state policy and procedures/application documents and recommend approval.
  
  
• Coordinate the review and approval of the policy and procedures/application with other teams, divisions, and offices.
  
  
• Provide technical assistance to state agencies to amend eligibility documents/application, as needed, to ensure their consistency with federal requirements.
  
  
• Prepare the eligibility documentation/application approval and grant award letter and track through clearance.
  
  
• Carry out any follow-up activities, such as reviewing amendments and ensuring appropriate public notification, with the state agencies and other education offices.
  
  
• Maintain records and materials related to eligibility documentation/application review and approval.

COMPLAINT RESOLUTION

• Work informally with customers and partners to provide information and resolve complaints.
  
  
• Refer complaints received to the SEA and track SEA resolution of complaints.
  
  
• Review and draft responses to requests for Secretarial Review.
  
  
• Analyze state complaints to determine patterns of noncompliance or problems in resolution and provide technical assistance to the SEA in improving its procedures.

In addition to these monitoring/eligibility determination/complaint activities, the teams provide customer service and participate in core agencywide activities such as strategic planning.

* This description of the Division's activities is adapted from a document provided by the US. Department of Education in September 1998, titled Monitoring and State Improvement Planning Division, to reflect some of the operational changes resulting from the IDEA reauthorization.

Appendix H

Overview of the New Continuous Improvement Monitoring System

In February 1998, the Office of Special Education Programs (OSEP) convened a national meeting of advocates and parents of children with disabilities, representatives from the states, and other stakeholder groups to gather input for the proposed revision of OSEP's monitoring system. Their input significantly affected the design of the revised system. Program improvement, accountability for outcomes, collaboration, and compliance are the multiple objectives of the new continuous improvement monitoring system. OSEP claims a stronger focus on state improvements that will significantly improve outcomes for children with disabilities without diminishing the focus on ensuring compliance. OSEP sees monitoring as having two main components, both necessary to improving compliance and actual results for children in each state. The first component is the review and corrective action/improvement process in each state, which should focus on those requirements having the greatest impact on improving results for children. The second is the data collection to support findings of noncompliance, which is still necessary.

The revised procedures will require states to assume accountability for measuring and reporting progress, identifying weak areas and identifying and implementing strategies for improvement. It will require each state to collect and use data newly required under the IDEA '97 amendments.[1] Each state will work with a steering committee made up of a broad range of stakeholders, including advocates and parents, to design and implement an ongoing monitoring process focused on improving results for children and youth with disabilities. OSEP will periodically visit programs in the states to verify their self-assessments.

Although states are not required to have a steering committee to conduct its self-assessment process, OSEP is strongly encouraging every state to use the steering committee mechanism and to ensure representation of all stakeholder interests in the self-assessment process.[2]

The concept of the new monitoring process differs significantly from that of the old model. OSEP defines its key characteristics as follows:

• A continuous, rather than episodic, accountability system that integrates self-assessment, continuous feedback, and response and is clearly linked to systemic change.
  
  
• A partnership with parents, students, state education agencies (SEAs), local education agencies (LEAs), and other federal agencies in a collaborative process in which stakeholders are part of the entire process, including
  
  
• the setting of goals and benchmarks;
  
  
• the collection and analysis of self-assessment data;
  
  
• the identification of critical problem issues and solutions; and
  
  
• the development, implementation, and oversight of improvement strategies to ensure compliance and improved results for children and youth with disabilities.
  
  
• A continuous improvement monitoring process in each state driven by data that focus on improving results.
  
  
• Self-assessment and monitoring processes in each state that are public, with broad dissemination of self-assessment results, monitoring reports, and the design, implementation, and results of correction/improvement plans.
  
  
• Technical assistance from OSEP as part of its on-site work in each state.
  
  
• Technical-assistance plans as part of corrective action/improvement plans in each state.
  
  
• The use of Regional Resource Centers and the National Early Childhood Technical Assistance System (NECTAS) for technical assistance throughout continuous improvement process in each state.

[1] 20 U.S.C. § 1418(a).

[2] Conversation with Larry Ringer, Office of Special Education Programs, Washington, DC, September 2, 1999.

Appendix J

List of Acronyms

ACAA--Air Carrier Access Act

ADA--Americans with Disabilities Act

ADD--Administration on Developmental Disabilities

ADHD--Attention Deficit and Hyperactivity Disorder

AKDE--Alaska Department of Education

ALJ--Administrative Law Judge

BEH--Bureau of Education for the Handicapped

CAP--Corrective Action Plan

CBE--Chicago Board of Education

CCD--Consortium of Citizens with Disabilities

CDE--California Department of Education

CSDE--Colorado State Department of Education

CSPD--Comprehensive System of Personal Development

DBTAC--Disability Technical Assistance Center

DCPS--District of Columbia Public Schools

DoED--Department of Education

DOJ--Department of Justice

DREDF--Disability Rights Education and Defense Fund

ECR--OCR-Facilitated Early Resolution

EDGAR--Education Department General Administrative Regulations

EHA--Education for All Handicapped Children Act

ESY--Extended School Year

FAPE--Free Appropriate Public Education

FHAA--Fair Housing Act

FLDE--Florida Department of Education

FTE--Full-time Equivalent

GAO--General Accounting Office

GEPA--General Education Provisions Act

GPRA--Government Performance and Results Act

HCPA--Handicapped Children's Protection Act

IDE--Iowa Department of Education

IDEA--Individuals with Disabilities Education Act

IEP--Individualized Education Program

IG--Inspector General

ISBE--Illinois State Board of Education

KDE--Kentucky Department of Education

KSBE--Kansas State Department of Education

LEA--Local Education Agency

LOF--Letters of Findings

LRE--Least Restrictive Environment

MASSDE--Massachusetts Department of Education

MDE--Minnesota Department of Education

MDOE--Maine Department of Education

MOU--Memorandum of Understanding

MSIP--Monitoring and State Improvement Planning Division

NAPAS--National Association of Protection and Advocacy Systems

NARIC--National Rehabilitation Information Center

NASDSE--National Association of State Directors of Special Education

NCD--National Council on Disability

NICHCY--National Information Center for Children and Youth with Disabilities

NIDRR--National Institute on Disability and Rehabilitation Research

NMSDE--New Mexico State Department of Education

NPND--National Parent Network on Disabilities

NYSED--New York State Education Department

OCR--Office for Civil Rights

OD--Office of the Director

OGC--Office of General Counsel

OIG--Office of the Inspector General

OSEP--Office of Special Education Programs

OSERS--Office of Special Education and Rehabilitative Services

P&A--Protection and Advocacy

PAAT--Protection & Advocacy for Assistive Technology

PADD--Protection and Advocacy for Persons with Developmental Disabilities

PAIR--Protection and Advocacy for Individual Rights

PAR--Program Administrative Review

PDE--Pennsylvania Department of Education

PRDE--Puerto Rico Department of Education

PTI--Parent Training and Information

RCF--Residential Care Facilities

RFP--Request for Proposal

RSA--Rehabilitation Services Administration

RTP --Research to Practice Division

SCDE--South Carolina Department of Education

SEA--State Education Agency

SEP--Special Education Program

TEA--Texas Education Agency

VADOE--Virginia Department of Education

VIDE--Virgin Islands Department of Education

Appendix K

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 nonenforcement 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 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").[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 statesÄNorth 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 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 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.

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 only18 of 66 noncompliant 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 (fiveÄreview and approval of LEA applications; threeÄcomplaint management; oneÄhearing decisions within time lines; and oneÄeffectiveness 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 noncompliant 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 noncompliant 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 Righ