I. The Law, the Compliance/Enforcement Scheme, and the Context
IDEA's mandates are complemented by two other key disability rights statutes, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act (ADA). Together, these three laws form the nondiscrimination framework for children with disabilities in public schools. IDEA applies to states as recipients of federal grants to be used in providing and administering special education for children with disabilities; Section 504 applies to all entities, including schools, that receive federal funds. Public school systems must comply with the ADA in all their services, programs, or activities (readily accessible to and usable by individuals with disabilities), including those that are open to parents or to the public. Both IDEA and Section 504 require schools to make a free appropriate public education (FAPE) available to every child with a disability--regardless of the nature or severity of the disability-- in the least restrictive environment (LRE). (See discussion below for further definition of FAPE and LRE.)
In enacting these laws, Congress attempted to address the longstanding discrimination faced by children with disabilities in the U.S. They have faced the same obstacles to full participation in public education as have other minority groups seeking to ensure their rights. Introducing a bill on January 20, 1972, to protect the civil rights of people with disabilities, Senator Hubert H. Humphrey (D-MN) told the Senate:
"I introduce...a bill...to insure equal opportunities for the handicapped by prohibiting needless discrimination in programs receiving federal financial assistance....Senator Humphrey told Congress, "[M]ore than one million children are denied entry into public schools, even to participate in special classes." Before special education became available, children with disabilities were routinely warehoused in institutions, and if they were provided any education at all, it was often inferior and in separate facilities apart from their peers without disabilities. Children with disabilities were often considered uneducable, disruptive, and their presence disturbing to children and adults in the school community.
By the early 1970s, parents of children with disabilities in 26 states had initiated litigation asserting their children's right to attend public schools under the 14th Amendment of the U.S. Constitution and the same equal protection arguments used on behalf of the African American school children in Brown v. Board of Education  in 1954. Two of these cases, Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania and Mills v. Board of Education of the District of Columbia , resulted in consent decrees that outlined the basic constitutional principles of the right to an appropriate education in the least restrictive environment for all children with disabilities and the procedural scheme that would later become federal law. Finally, in 1975, recognizing that the problem required a national solution, Congress passed the Education for All Handicapped Children Act.
Throughout the history of the struggle for equal educational rights, the parents of children with disabilities have fueled and guided special education reform. In 1981, six years after enactment of IDEA, the following letter was written by a parent to express her view on the prevalent practice of segregating children with disabilities in separate "handicapped-only" classes and schools despite the Act's mandate that requires placement in the least restrictive environment:
"We are the parents of children attending Cameron School for Physically Handicapped students in El Cerrito, California, in the Richmond Unified School District. For all our children's school lives, they have had little or no opportunity to interact with their nondisabled peers.The asserted reasons for segregating children with disabilities in educational settings-- that a wheelchair is a fire hazard, that a child's IQ renders her uneducable, and the like--do not reveal the true basis for excluding them. The true basis is the expectation that the children will become dependent adults, unable to contribute to society. This view makes their childhood education seem futile--they will be dependent no matter how good their education. Compounded by widespread discrimination, inaccessible buildings, inaccessible transportation, and lack of adequate support services, these stereotypes were the reason for severely restricted options available to children and adults with disabilities and promoted segregated and inferior education.
The inherent inequality of separate education and the permanent damage it inflicts were recognized by the Supreme Court in Brown v. Board of Education. In this unanimous decision, Chief Justice Earl Warren wrote:
"To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone....He further wrote that public education prepares children for economic and social participation in society:
"[Education] is a principal instrument for awakening the child to cultural values, in preparing him for later...training, and in helping him to adjust normally to his environment. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."Education prepares children for their adult roles. Expecting children with disabilities to remain dependent throughout their lives, at least until 1975, was our national policy. State governments and local schools routinely excluded them from public education entirely, warehoused them in institutions, and provided them with inferior and separate education. Even when a child with a disability received sufficient elementary and secondary education to proceed to college, higher educational opportunities often remained limited by low expectations of future adult roles.
IDEA sets forth a comprehensive scheme for ensuring two basic substantive rights of eligible children with disabilities: (1) the right to a free appropriate public education, and (2) the right to that education in the least restrictive environment. The body of the law delineates a procedural framework to ensure these two substantive rights. Appendix C provides an overview of the basic rights and requirements: (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. Three of those requirements--FAPE, LRE, and IEP--are briefly described below.
IDEA defines FAPE as special education and related services that meet the standards of the state education agency and are provided at public expense. These include appropriate preschool, elementary school, and secondary school education. The education is to be provided in accordance with the child's IEP, as described below. FAPE, for each child, is defined by that student's IEP.
IDEA mandates that students with disabilities be offered special education and related services in the least restrictive environment appropriate for the individual child with a disability. LRE is the environment that provides for maximum interaction with nondisabled children consistent with the disabled child's needs. This is the key substantive right of children with disabilities under IDEA and is often considered the linchpin of IDEA. It is sometimes called the "integration mandate." Every step away from the regular classroom must be accompanied by a compelling educational rationale, in light of the law's preference for educating children with disabilities in the regular classroom alongside their nondisabled peers.
The IEP is the centerpiece of IDEA. Parents use this tool to ensure that an appropriate program is developed to meet their child's unique needs. The IEP is a written statement that must contain specific information about the child's educational needs, levels of performance, annual goals, short-term objectives, and special education and related services and supplementary aids and services to be provided to the child. The IEP must explain the extent to which the child will not participate with nondisabled children in regular classes and include, among other elements, a statement of the child's transition needs beginning when the child reaches age 14 and a statement of how the child's progress toward annual goals will be measured. The IEP is developed, reviewed, and revised during meetings that include a representative of the school or agency, the child's teacher, the child's parents, the child (if appropriate), and other individuals who have knowledge or special expertise at the request of the parent or education agency.
IDEA applies to all public agencies that receive "direct or delegated authority to provide special education and related services in a state that receives funds under Part B," even if an agency receives no federal funds under Part B. Further, any public agency that refers a child to a private program must ensure that the child's rights are protected in that setting.
The SEA in a given state has the ultimate responsibility for educating children with disabilities in that state. SEAs and school districts that cannot provide all related services or special education classes, however, may contract with other organizations. Also, they may enter interagency agreements with other agencies--a state department of health, for example--to provide certain services on a statewide basis. Interagency agreements spell out several things-- each agency's responsibility, the methods of payment, etc.
Early in his administration, President Reagan targeted IDEA for deregulation. After issuing draft changes to the IDEA regulations, the administration encountered tremendous opposition in hearings conducted by the DoED and in the extensive media attention they garnered. When opponents of the draft changes sent 30,000 letters to the White House, the Reagan Administration decided to leave the regulations in place.
In 1986, Congress enacted the Handicapped Children's Protection Act (HCPA) in response to the Smith v. Robinson Supreme Court decision. Among other things, HCPA added an attorney fee provision to IDEA, bringing special education up to par with other civil rights statutes and allowing parents who prevail in due process hearings and court to be reimbursed for their attorneys' fees. Also in the mid-1980s, Congress added an early intervention program known as Part H for infants and toddlers and their families.
In 1990, Congress amended the statute and crafted the statutory name used in this report --the Individuals with Disabilities Education Act, or IDEA. The regulations were correspondingly changed to reflect the statutory changes. Substantively, the 1990 changes were limited. Among the changes were the addition of separate categories for autism and traumatic brain injury, and the addition of transition services to the IEP requirements for children 16 years old and up, or younger if appropriate, who are preparing to leave school because of graduation or age.
Judith E. Heumann, Assistant Secretary of the Office of Special Education and Rehabilitative Services within the Department of Education (OSERS), made every effort to redirect the debate into positive change and improving results for children with disabilities. For several years, however, most of the debate in Congress continued to focus on the issue of discipline. Some members of Congress wanted to allow teachers and schools to exclude children simply for being "disruptive," whether or not the schools had adequately addressed the child's needs. Again, these proposals were viewed by parents as manifesting outright hostility toward children with disabilities and they vigorously opposed them. Special education for children with disabilities in adult prisons also became a controversial point in the congressional debates as some members of Congress sought to eliminate the right of incarcerated youth to receive special education services.
During the reauthorization, many parent leaders did not call for changes to IDEA, but rather for full implementation and enforcement of the law. In the view of many of these parents and advocates, the law itself needed no improving. Rather, widespread and pervasive noncompliance with the law needed to be corrected. Parents were highly critical of DoED and the state departments of education for failing to live up to their enforcement responsibilities.
In 1997, Congress finally reauthorized IDEA in the IDEA Amendments of 1997, Public Law 105-17 or IDEA '97, which President Clinton signed into law on June 4, 1997. This reauthorization launched the second generation of statutory development. For the first time since 1975, significant changes were made to the law while retaining its basic protections. The 1997 additions were intended to clarify, strengthen, and provide guidance on implementation of the law based on two decades of experience.
The congressional statements prefacing the amended Act describe its new emphasis on educational results and improved quality of special education and regular programs and services:
"Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities. [T]he implementation of this Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.In keeping with these articulated purposes, several important themes are woven throughout the new law:
The LRE requirements are maintained and strengthened in many references to educating children with disabilities alongside children without disabilities.In the area of discipline, in the spirit of compromise, some changes were made to the law to give school officials greater flexibility in dealing with children with disabilities involved with weapons, drugs, and behavior that could cause serious injury. On the other hand, schools are directed in IDEA '97 more proactively to address challenging behavior problems rather than excluding or punishing children with disabilities because of misbehavior, especially misbehavior caused by their disabilities.
The years of controversy preceding reauthorization were marked by protracted and contentious debate, grassroots organizing, congressional hearings, and involvement by every conceivable "stakeholder." IDEA nevertheless survived an intense and prolonged period of bill introductions and amendments in the House and Senate, and of direct and active involvement of organizations representing teachers, parents, psychologists, related service providers, local and state boards of education, school administrators, and various other interest groups. Tools for enforcement were explicitly added to the law. The law that emerged from this process was, for the most part, strengthened and revitalized.
"To assure that children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and..., to assist states, localities, educational service agencies, and federal agencies to provide for the education of all children with disabilities..."This section describes the overall compliance and enforcement mechanism, including the statutory roles of the DoED, the SEAs, and the LEAs. The informal role of parents as enforcers of IDEA in relation to the federal and state agencies is also discussed, as well as a brief overview of the history of federal enforcement action.
Federal Government activities, the first prong of the compliance/enforcement scheme, are the focus of this study and will be described throughout the body of this report. State government activities, prong two, will be addressed only to the extent that the Federal Government monitors whether the state carries out these responsibilities. For example, in the section on federal monitoring, states are shown to be in or out of compliance with the general supervision requirements, indicating whether the state is carrying out its function of ensuring that LEAs comply with the law. The law gives states the responsibility for ensuring that IDEA's requirements are carried out in the states. In theory, the Federal Government is ensuring that the SEA is performing that function. Thus, the federal DoED is monitoring the SEA in much the same way that the SEA is monitoring the LEA.
This study does not attempt to discern the extent to which states withhold funds from LEAs. (Withholding of funds from LEAs, however, does come up in this report when it discusses the Federal Government's determination that an SEA is out of compliance because it is not withholding LEA funds.) Also beyond the scope of this study is an analysis of complaints received by states from parents. In fact, it is unclear as to whether such an analysis would be possible because states are not required to submit such information to DoED.
The third prong of compliance/enforcement, due process and use of the judicial system by parents and advocates, will not be addressed in this report, except in the context of federal monitoring to ensure that states are following the due process requirements of the law, such as notifying parents of their rights under the law and establishing an impartial hearing process. The due process/impartial hearing system is a vital component of the enforcement scheme, providing parents with specific procedural safeguards when disputes arise with school districts. This due process scheme has produced court cases that go on to address significant policy issues under IDEA. The body of impartial hearing decisions in every state is not considered by this report. Furthermore, it is doubtful whether such a consideration could occur because data about these decisions exist only at the state level and are not compiled nationally. Furthermore, states vary in the extent to which they gather and analyze such information.
It is critical for the reader to keep in mind that all three prongs together constitute the overall compliance/enforcement scheme of IDEA, since only Federal Government activities are the focus of this report. An examination of all three prongs, which is beyond the scope of this study, is necessary for a complete picture of IDEA enforcement. However, state enforcement activities are touched upon indirectly in this report's analysis of the federal monitoring reports. The analysis provides a national picture of the variability of state compliance with IDEA (see Part III). The role of private litigation (third prong) is also briefly discussed in the context of its impact on state monitoring efforts (see Part V).
Acknowledging that the Education for All Handicapped Children Act "represents the most important legislation for the handicapped ever passed" (1979 Annual Report to Congress-- Introduction), the BEH had established a monitoring system by 1976. The monitoring system included a Program Administrative Review (PAR), or monitoring site visits. By 1978, every state had been visited at least once by BEH, and a few had been visited twice. BEH issued monitoring reports and worked with states, just as OSEP does today, to develop corrective action plans to address areas of noncompliance.
When the DoED was established in 1980, the Office of Special Education and Rehabilitative Services was created. OSERS was given the responsibility, which it retains today, for administering the law (now IDEA).
DoED has been monitoring states and states have been monitoring local education agencies since the mid-1970s as intended by law. As part of its responsibility for the administration of IDEA, DoED has been issuing monitoring reports that detail state noncompliance and deficiencies for more than 20 years.
IDEA is a unique law in that it is a blend of a civil rights law and a state grant program. The DoED administers both of these types of laws, but separately. Generally, the Office for Civil Rights (OCR) in the Department of Education administers the civil rights laws, as described below, but it does not administer IDEA. The other divisions of the DoED administer state grant programs, research programs, demonstration programs, teacher training programs, student loan programs, etc. Indeed, the core activity of the DoED is the administration of educational funds. Unlike some other agencies, such as the Equal Employment Opportunity Commission and the Department of Justice, its core activity is not civil rights enforcement. Civil rights enforcement is a secondary task of the DoED; its primary activities are programmatic.
Generally, the stakeholders for civil rights laws are quite different from the stakeholders for grant programs. The major stakeholders for civil rights laws are those protected by the laws and their advocates; in the case of IDEA, children with disabilities and their families and advocates. The major stakeholders for state grant programs are generally the recipients of the funds (state and local education agencies in the case of IDEA) and professionals who provide the services. Sometimes there is tension between these two groups, whose perspectives on the purpose of the law may be at odds, leaving the administering agency in the difficult position of being in the middle. While the state is the partner of the Federal Government in delivering educational services, it may also be the target of enforcement actions. Such an internal conflict is not present in the administration of most other civil rights laws, where the federal role is solely one of enforcing the rights of the protected group.
In recent years, OSEP has used the grant administration process as an informal means of civil rights enforcement. During 1990s, OSEP imposed "high risk status" on six states for failure to correct findings through federal monitoring of noncompliance with IDEA. Correcting the noncompliance was the "special condition" for continued eligibility to receive federal funding under IDEA for the next funding period. These informal actions eventually escalated to formal actions to withhold federal funds from two states that were persistently out of compliance.
These actions, taken against Virginia and Pennsylvania, were met with opposition from political leaders of those states. In the case of Virginia, when the DoED attempted to withhold funds because of noncompliance, the entire Virginia delegation and the governor wrote to the Secretary of Education requesting that he release the funds. In the case of Pennsylvania, four members of Congress requested that the Secretary reconsider his "high risk status" determination of the state and instead provide technical assistance. (See Appendix D for copies of the letters.) Secretary Riley did not withdraw the DoED's actions in response to the strong political pressure.
Concern about lax federal enforcement of IDEA, nonetheless, has been raised intermittently over the years. During the 1997 reauthorization of IDEA, many parents expressed strong doubts about the effectiveness of the monitoring process, calling for no change in the law and for full implementation and enforcement. Such concerns prompted Congress to clarify and restate enforcement authorities in IDEA '97. IDEA '97 explicitly authorized the Department of Education to refer noncompliant states to the Department of Justice. OSEP also can withhold funds in whole or in part from states, based on the degree of noncompliance found. (The former law was interpreted to preclude partial withholding of funds and allow only total withholding of funds, unless the noncompliance was limited to particular LEAs.) The House Committee Report accompanying IDEA '97 acknowledges these concerns and sets out a clear expectation that the Secretary will fully utilize these explicit authorities to enforce the law.
"The Committee recognizes and fully expects that the Secretary will utilize the broad enforcement authority available for ensuring compliance with and implementation by state educational agencies....The Committee expects the Secretary to initiate actions to ensure enforcement, including the re-examination of current federal monitoring and compliance procedures to improve the implementation of the law, and a subsequent annual report to Congress, which evaluates the impact of the improved procedures on compliance. The Committee also expects that the Secretary's re-examination of current enforcement procedures will place strong emphasis on (1) including parents in the state monitoring process, (2) focusing monitoring efforts on the issues that are most critical to ensuring appropriate education to children with disabilities, and (3) timely follow-up to ensure that a state has taken appropriate actions to demonstrate compliance with the law."The final regulations restating DoED's enforcement options (referral to the Department of Justice and partial withholding of funds), became effective in May 1999, but DoED has developed no guidelines on specific conditions in which they should be used.
The organization of the DoED in carrying out its enforcement role is described in the following section.
Appendix E presents the organizational structure of the Department of Education in Washington, DC. The boxes that have an asterisk represent the offices at the agency having IDEA-enforcement responsibilities. OSERS, also in Washington, is the principal office charged with implementing and carrying out IDEA and provisions concerning the education of children with disabilities. Their roles and responsibilities are described below.
Additionally, the Secretary is required to assess the progress in the implementation of IDEA, including the effectiveness of state and local efforts to provide a free appropriate public education to children with disabilities. To underscore DoED's responsibility to monitor and enforce implementation of the Act, the law clarifies DoED's authority to invoke sanctions against noncompliant states. In general, whenever the Secretary finds:
(A) "that there has been a failure by the state to comply substantially with any provisions of this part, orWithholding "in part" and referral to the Department of Justice were clarified in IDEA '97 as explicit enforcement options available to DoED in the event of noncompliance by the states.
In relation to the enforcement of IDEA, the Secretary's office becomes involved whenever an activity is above and beyond the routine. For example, whenever an enforcement action is taken, such as the initiation of a compliance agreement with a state or withholding of funds, the Secretary's office is involved. The Office of the Secretary has a very specific function in relation to withholding of funds. A state is entitled to request a hearing on a withholding of funds decision with a hearing officer, such as an Administrative Law Judge (ALJ) appointed by the Secretary. If the state is displeased with the decision of the ALJ, it may appeal to the Secretary for a final determination. Such an appeal has occurred only once in the history of IDEA enforcement--in July 1995 with the state of Virginia. (See Part IV below.)
The OGC performs four main functions in relation to IDEA enforcement. First, it coordinates with OSEP in the review of all state applications for funding. Second, it reviews all state monitoring reports written by OSEP. Third, it supports OSEP on any enforcement actions related to IDEA, including determinations of "high risk" status for a state, developing compliance agreements with states, denial of funding applications, withholding of funds, and "cease and desist orders." (While the Department has the authority to utilize "cease and desist" orders to enforce IDEA, it has never done so.) Fourth, the OGC takes the lead in interacting with the Department of Justice on IDEA cases and issues.
The 1997 amendments to IDEA explicitly authorize the Department of Education to refer noncompliant states to the Department of Justice for investigation, litigation, or both. While the Department of Education has likely always had this authority, the 1997 amendments make such authority explicit and statutory.
The OGC, in conjunction with OSERS and OSEP, collaborates with the Department of Justice when IDEA matters are in federal court or the Supreme Court. When the state of Virginia took the Department of Education to court (see explanation of Virginia case below), the Department of Justice represented DoED. In some circumstances, the two agencies have worked together to write amicus briefs or to develop an argument in relation to a case or an issue. In consultation with the Department of Education, the Department of Justice considers cases that have been brought to its attention by the public (see Part VI below).
The vision and mission statements of OSERS articulate the organizational philosophy and outlook shaping its policies and activities. OSERS' vision statement expresses its overall purpose and how it intends to achieve that purpose: "OSERS will aggressively and collaboratively work to create a society in which all disabled people can obtain the knowledge and skills necessary to achieve the goals they set for themselves." The mission statement articulates OSERS' role in bringing about the vision: "The mission of OSERS is to provide leadership to achieve full integration and participation in society of people with disabilities by ensuring equal opportunity and access to and excellence in, education, employment, and community living."
The organizational role and functions of OSEP, the office primarily responsible for the day-to-day activities of administering IDEA, are described in the following section.
OSEP was reorganized in January 1998, and employed 120 staff at the time of the interview for this report. In addition to the Office of the Director (OD) and the Support Team, OSEP comprises two divisions: the Research to Practice Division (RTP) and the Monitoring and State Improvement Planning Division (MSIP). The OD coordinates all policy, provides leadership to OSEP's activities and to the field of special education, and is the home of the Federal Interagency Coordinating Council. The RTP division administers the discretionary programs authorized by IDEA. It is organized into four teams: Early Childhood; Elementary and Middle School; Secondary transition and Post-Secondary; and National Initiatives. The MSIP division carries out activities related to P art B and the preschool and early intervention formula grant programs of IDEA. MSIP is responsible for review and approval of state eligibility documents, monitoring the formula grant programs, and providing leadership in improving state structures and systems of education for infants, toddlers, children, and youth and their families.
MSIP has a staff of 45 organized into four units--the Office of the Division Director, Team A, Team B, and Team C. There are six individuals in the Office of the Division Director, 13 on Team A, 15 on Team B, and 11 on Team C. The Office of the Division Director has three key functions: (1) administer the State Program Improvement Grants (discretionary grants to states for systemic change activities related to improving performance of children with disabilities, education personnel development, and other initiatives related to meeting the requirements of IDEA), (2) develop policy in areas related to the division's activities, and (3) manage audit resolutions (including Inspector General (IG) audits and General Accounting Office (GAO) reports). In addition, the Office of the Director develops a chapter for the Annual Report to Congress, provides support for monitoring, and coordinates and collaborates with other relevant federal entities.
Not all of the people on each team participate in monitoring activities. Of the 39 individuals on teams, approximately 22 of them are monitors for the Part B state grant program. The smallest number of monitors employed at DoED in the past decade was nine.
Each of the three Monitoring and State Improvement Planning Teams is responsible for a range of activities in 18 to 20 states and entities. The key responsibilities of these teams are to review state eligibility and recommend approval or disapproval for grant applications, monitor states, and provide or coordinate technical assistance for states. Monitors are assigned as the key state contact person for three to four states. Appendix F provides a detailed description of the responsibilities of the Monitoring and State Improvement Planning Teams.
The Office for Civil Rights is charged with enforcing federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in programs and activities that receive federal financial assistance. Two of those laws prohibit discrimination on the basis of disability--Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). Section 504 prohibits disability discrimination by any recipient of federal funds, such as local school districts. Title II of the ADA prohibits disability discrimination by public entities including public school districts, public colleges and universities, public vocational schools, and public libraries, whether they receive federal funds or not. Most of OCR's enforcement activities take place in the 12 regional offices throughout the country.
OCR carries out its responsibilities in two primary ways--by responding to complaints and conducting compliance reviews. OCR receives about 5,400 complaints per year. More than half of these are Section 504/ADA complaints (see discussion on Complaint Handling in Part IV for an analysis of these complaints, which may overlap with IDEA). OCR works with the involved parties to resolve complaints. OCR may initiate compliance reviews, which allows it to target resources on compliance problems that appear acute, national in scope, or newly emerging. An advantage of a compliance review is that it may result in policy or program changes that benefit large numbers of students, whereas an individual complaint may benefit only the complaining party. OCR has the authority to withhold federal funds from entities, such as local school systems, found to be violating Section 504.
OCR has conducted compliance reviews on minority students in special education, and has provided technical assistance under Section 504 and Title II of ADA regarding discipline of students with disabilities. In addition to providing technical assistance on making FAPE available to students with disabilities in correctional facilities, OCR and OSEP have collaborated on cases involving students with disabilities in correctional institutions.
The potential overlap in authorities between OCR and OSERS has long been acknowledged by both offices. Because of concerns about lack of coordination and potential duplication of efforts, OCR and OSERS developed a Memorandum of Understanding (MOU) in 1987. The MOU outlined how the two offices will share information about potential 504/IDEA violations. Processes for joint review of eligibility documents and complaints were outlined. Joint activities, including investigation of education agencies, issuance of findings, negotiation of remedies for violations found, monitoring of compliance plans, and enforcement proceedings were authorized. Since the MOU, OCR and OSERS have carried out some of these authorized activities in New York, Mississippi, Nevada, the Virgin Islands, Arizona, and Florida. OCR and OSEP appear to be developing an increasingly productive relationship as well based on coordination and collaboration. OCR and OSEP have drafted joint letters about overlapping issues. OCR reported that it provides OSEP with its compliance monitoring docket for the year so OSEP will know what school districts OCR is investigating and why. OSERS reported that as part of its pre-site monitoring activities, it requested Section 504 agreements from OCR for a particular state. OCR reported coordinating with OSEP on disability cases and meeting with OSEP quarterly to share information about the respective offices' activities. Both offices have conducted training for staff in the other's office.
(i) the requirements of this subchapter are met; andTo be eligible for federal funds to assist with the education of children with disabilities the SEA must submit documentation to the U.S. Department of Education for approval, detailing the state's policies and procedures assuring compliance. Once approved, new submissions to DoED are required only when changes to a state or federal law, policy, or procedure impact the approved policies and procedures. In part, these documents must demonstrate the state's assurance that:
"[A] free appropriate public education is available to all children with disabilities residing in the state between ages three and 21, inclusive..."Additionally, the SEA's eligibility documents must show (1) that funds received under IDEA will be expended in accordance with provisions of the Act; (2) that the state has a comprehensive system of personnel development designed to ensure an adequate supply of qualified special education, regular education, and related services personnel, how the state acquires and disseminates to teachers, administrators, school board members, and related services personnel, significant knowledge derived from educational sources, and how the state, where appropriate, adopts promising educational practices, materials, and technology; and (3) that the SEA regularly evaluates the effectiveness of IDEA programs and services in meeting the educational needs of children with disabilities.
In the event that an LEA fails to comply with IDEA requirements, the SEA "shall reduce or not provide further payments to the LEA... until the SEA is satisfied that the LEA... is complying with that requirement." Furthermore, if the SEA determines that the LEA is "unable to establish and maintain programs of free appropriate public education that meet the requirements of the Act," it must use the funds that would otherwise go to the LEA to provide the necessary services directly to the children with disabilities.
IDEA's implementing regulations also require SEAs to adopt procedures for filing, investigating and resolving complaints, including a determination of whether IDEA requirements were violated and procedures for ensuring effective implementation of the SEA's final written decision.
The U.S. Secretary of Education ruled that Virginia's entire annual IDEA grant--$60 million--could be withheld based on the state's refusal to provide FAPE to suspended or expelled children. Virginia appealed the Secretary's decision in federal court. The Fourth Circuit Panel agreed with OSEP that Virginia's policy was in violation of IDEA. Virginia appealed this ruling to the full Fourth Circuit Court of Appeals sitting en banc, which reversed the circuit court panel decision on this issue. Virginia permanently lost this debate, however, when Congress subsequently amended IDEA with a "no cessation of services" provision that ensures school districts provide FAPE to children with disabilities even during suspension or after expulsion.
OSEP has more often used informal mechanisms to secure changes in state operations through negotiations over the approval of state policy and procedures documentation. For example, in 1980, OSEP's predecessor, the Bureau of Education for the Handicapped (BEH), delayed plan approval in California because policies and procedures regarding occupational therapy and physical therapy related services and the state's complaint process failed to comply with the law. This delay was spurred on by an organized grassroots parent complaint strategy in California. As a result, California's Department of Education made substantial changes in the noncompliant areas.
More recently, as discussed later in this report, OSEP made determinations of high risk status or applied requirements for compliance agreements to six different states/entities. In order to address persistent noncompliance with Part B of IDEA, Puerto Rico was and California, New Jersey, Pennsylvania, the Virgin Islands, and the District of Columbia now are under such scrutiny. With the exception of Puerto Rico, these informal enforcement actions are recent. The compliance agreement entered into by Puerto Rico appears to have had some effect in correcting conditions of noncompliance. At the time of this writing, it is too soon to tell how effective the other compliance agreements will be in compelling compliance.
Finding # I.1
Recommendation # I.1
Finding # I.2
Recommendation # I.2
Part II presents the experiences and
perspectives of some students with disabilities, parents, and advocates
in their struggle to realize the promises of the law.