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

A. Grant Administration
B. Oversight: Federal Monitoring of States
C. Oversight: Complaint Handling
D. Enforcement

The legal authority for the Department of Education (DoED) to ensure compliance with the Individuals with Disabilities Education Act (IDEA) is found in provisions of the statute itself that authorize assessment of policy and procedure documents to determine state eligibility for funding,[85] referral of a state to the Department of Justice, and withholding funds when a state has failed to comply substantially with any provision of Part B of IDEA.[86]

The key activities that the Office of Special Education Programs (OSEP) carries out in relation to monitoring state compliance with the law are (1) determining state eligibility for federal grants under IDEA, (2) conducting on-site monitoring visits and issuing monitoring reports, (3) developing corrective action plans and overseeing the implementation of those corrective actions ordered by OSEP, and (4) initiating enforcement action. This part discusses these core federal functions of IDEA implementation oversight.

A. Grant Administration
1. The Basic State Grant Program IDEA '97 requires the states to submit applications that ensure "to the satisfaction of the Secretary" that they have policies and procedures that meet the conditions of federal law.[87] These conditions include (1) access to a free appropriate public education (FAPE), (2) individualized education programs (IEP), (3) least restrictive environment (LRE), (4) procedural safeguards, (5) evaluations, (6) general supervision by the state education agency (SEA), (7) a comprehensive system of personnel development, (8) personnel standards, (9) performance goals and indicators, and (10) participation in assessments.[88] 

Before the enactment of IDEA '97, a state plan was submitted to OSEP every three years to determine eligibility. States were required to submit assurances that they were complying with the various requirements during the three-year interim period. IDEA '97 no longer specifically requires a state plan, and one submission of policies and procedures information, if accepted, remains in effect indefinitely. Modification of a state eligibility document may be required if (1) the state determines that a modification is required, perhaps because of changes in state law or regulations; (2) there is a change in IDEA by amendment or a new interpretation of IDEA by a federal court or a state's highest court; or (3) there is an official finding of noncompliance with federal law or regulations. When the Federal Government requires a modification of the application, it need only be to the extent necessary to ensure the states' compliance with the part of the law that is newly amended, interpreted, or out of compliance, not the entire law or larger portions of the law.[89]

For FY 1997, OSEP did not require states to submit a detailed application, as the reauthorization of IDEA was imminent and significant changes in the law were anticipated. OSEP thought it would be prudent to wait until the new law was enacted. The reauthorization was not complete until June 1997, and the regulations to implement the new law were not finalized until March 12, 1999. Thus, since 1997, OSEP has allowed states to receive their funding by signing assurances that they would comply with existing federal law. In 1997, after the law was reauthorized, OSEP sent all states a packet explaining the requirements of IDEA '97. Beginning in 1998, OSEP gave states the option of submitting an application or signing a statement of assurances. One state, Wisconsin, submitted an application, which was approved. All of the other states have signed and submitted assurance statements to OSEP for fiscal years '97-'98, '98-'99 and '99-'00.[90]

OSEP generally notified the states of information that would be due about three months prior to the actual due date. Every state had to allow a 60-day public review period for the eligibility documents prior to submitting them to OSEP. States could publish notices of availability in newspapers, distribute them in libraries, etc. The due date to the Federal Government was generally April 1 or May 1. OSEP took two to three months to review the documents and generally awarded funds by July 1 of the same year.

States submitted an original and two copies of their documents to the Monitoring and State Improvement Planning Division (MSIP). MSIP staff logged them in, keeping one copy in a central file and giving copies to two readers, a primary and a secondary reader. The primary reader was generally the person assigned to that state as the "state contact" for monitoring, technical assistance, etc. This person was to be familiar with any monitoring issues in that state. Both readers read the documents with a checklist to determine if the required elements were present. The readers met with the team leader and discussed the documents. The team could choose to coordinate its review with other divisions in DoED and provide the state technical assistance if needed to amend the application. If there were significant problems with the application, the Office of General Counsel (OGC) could become involved. If the team agreed to recommend approval, the application was eventually approved by the director of OSEP, and an award was sent to the state. If the team did not recommend approval, the state was given reasonable notice and an opportunity for a hearing in accordance with the statute before the Secretary of Education made a final determination of ineligibility.[91]

In the past, OSEP may have given "full" or "conditional" approval of the state plan. Full approval implied that the state had satisfied the Department of Education that the necessary policies and procedures to carry out IDEA were in place. Conditional approval indicated that, while a policy or procedure was not in compliance with IDEA, the state had assured that the practice of the state was in compliance. For example, a state may have needed to change a state law to come into compliance; however, such a change may not have been possible for more than a year, since the legislature meets only every other year. OSEP would have provided conditional approval to such a state after it assured DoED that it was following the federal law and working to change the state law. Both conditional and full approval provided for full funding to the state.

As Table 2 indicates, states frequently received conditional approval of their plans. However, in the last year during which plans were submitted to OSEP, '95-'96, fewer conditional plans and more fully approved plans were in evidence. For FY '93-'94, the status of plans was as follows: 31 plans were fully approved and 27 were conditionally approved. For FY '94-'95, 43 plans were fully approved and 15 were conditionally approved. For FY '95-'96, 46 plans were fully approved, 10 were conditionally approved, and 2 received a "not applicable" ranking.[92] The percentage of fully approved state plans rose from 53 percent in FY '93-'94 to 74 percent in FY '94-'95 to 82 percent in FY '95-'96.

Table 2: Status of Approval of IDEA Part B State Plans/State Plan Reviews

States	95-96	94-95	93-94
Alabama	F	C	F
Alaska	F	F	F
American Samoa	F	F	F
Arizona	F	F	F
Arkansas	F	F	C
California	C	C	C
Colorado	F	F	F
Connecticut	F	F	F
Delaware	F	F	C
District of Columbia	C	C	C
Florida	F	F	F
Georgia	F	F	C
Guam	F	F	C
Hawaii	F	C	C
Idaho	F	F	F
Illinois	F	F	C
Indiana	F	F	F
Iowa	F	F	F
Kansas	F	F	C
Kentucky	F	F	C
Louisiana	F	F	C
Maine	C	C	C
Maryland	F	F	C
Massachusetts	F	F	C
Michigan	C	C	C
Minnesota	F	C	C
Mississippi	F	F	F
Missouri	F	F	F
Montana	F	F	F
Nebraska	C	C	F
Nevada	F	C	C
New Hampshire	F	F	C
New Jersey	F	C	C
New Mexico	F	F	F
New York	F	F	F
North Carolina	F	F	F
North Dakota	F	F	F
Northern Mariana Islands	F	F	F
Ohio	C	C	C
Oklahoma	F	F	F
Oregon	F	F	F
Pennsylvania	F	F	C
Puerto Rico	F	F	F
Rhode Island	F	F	F
South Carolina	F	F	C
South Dakota	F	F	F
Tennessee	C	C	F
Texas	F	C	C
Utah	F	F	F
Vermont	F	F	C
Virgin Islands	Consolidated
Virginia	C	F	C
Washington	F	F	F
West Virginia	F	F	F
Wisconsin	C	F	F
Wyoming	F	F	F
Marshall Islands	NA	F	F
Federated States of Micronesia	NA	C	C
Republic of Palau	C	C	C

C = Conditional Approval, F = Full Approval, NA = not applicable due to changing legal status.

The reasons for the increase in states being fully approved are not readily apparent. An inquiry and analysis beyond the scope of this study may provide an explanation for this shift.

2. Competitive State Program Improvement Grants The 1997 IDEA amendments included a new discretionary program titled State Program Improvement Grants for Children with Disabilities.[93] The purpose of these grants is to assist states, in partnership with a range of stakeholders in the states, in reforming and improving their systems that serve students with disabilities. Congress appropriated $35.2 million for these grants in FY '99. The grants will be awarded to states on a competitive basis, in the range of $500,000 to $2 million per year. The first awards were made in January 1999. Seventy-five percent of the funding received under these grants must go for personnel preparation.[94]

The statute outlines the analyses the state must conduct in developing a state improvement plan. That analysis must include the major findings of the most recent federal reviews of state compliance as they relate to improving results for children with disabilities.[95] The law also requires that the state improvement plan include improvement strategies, one of which must address systemic problems identified in federal compliance reviews.[96]

Although it is not yet clear how competitive state grants will affect state compliance with IDEA, they are intended to create an incentive toward the systemic changes a state must implement to achieve full compliance with IDEA.

3. Findings and Recommendations

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.
Though 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.

B. Oversight: Federal Monitoring of States
1. Purpose of Monitoring States are regularly monitored by OSEP. Such monitoring includes on-site visits, data collection and analysis, and the issuance of an official report. This basic monitoring process has undergone periodic changes since the enactment of IDEA. As noted in the review of annual reports below, the purpose of monitoring has shifted over the years depending on the context in which it was carried out. The law states that the Federal Government's role is one of monitoring the states to ensure their implementation of the law. Indeed, much of the responsibility for compliance lies with the states in their responsibility to monitor the local education agencies (LEAs). The Federal Government has increasingly looked to the states to take on this role and gradually redefined its role as one of partnership with the states. In fact, the IDEA amendments of 1997 strengthen the expectation that the states will monitor the LEAs. The statute holds that states are expected to reduce or withhold payments to LEAs if they are found to be out of compliance with the law.[97] For the first time, in 1998, the Federal Government took enforcement action against a state for not taking effective enforcement action against an LEA found to be out of compliance (see discussion of Pennsylvania as a high risk grantee).

OSEP claims its approach to monitoring has had significant positive impacts on compliance in a number of states. For example, the state educational agency (SEA) in some states has taken action to correct deficient practices identified by OSEP during the monitoring review, even before the state has received OSEP's report. In such instances, the states' solutions have often incorporated technical assistance provided by OSEP during the monitoring visits. According to OSEP, a number of states also have made positive changes, at least in part because of the emphases and findings of OSEP monitoring, in two important areas: (1) state monitoring and complaint resolution procedures, and (2) the movement of many children with disabilities from separate settings into less restrictive placement options.[98]

OSEP currently describes its monitoring as shifting from being procedurally oriented to being results oriented.[99] The purpose of monitoring as defined by OSEP today is to improve results for children with disabilities.[100] As mentioned earlier, OSEP has redesigned its monitoring process (see Appendix H) to be a component of what it calls a "state review and improvement 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.[101] There appears to be a shift away from monitoring used solely as a tool for obtaining compliance toward monitoring used as a tool for both program improvement and compliance.

2. The Decision About What to Monitor OSEP is responsible for ensuring that states are in compliance with IDEA. The requirements of IDEA are numerous and not every requirement is monitored in every state on every monitoring visit. Neither are the same requirements monitored for the same state over time. However, as the analysis below of the most recent monitoring reports (1994-1998) indicates, there does appear to be a relatively stable set of requirements that are monitored. The decision about exactly what to monitor in a state during a particular monitoring visit appears to be determined by the team doing the monitoring based on their analysis of the information they collect about the state.

A 1995 memo from Thomas Hehir, director of OSEP, to Chief State School Officers indicates that monitoring and corrective action plans will be focusing on requirements that have the most direct relationship to student results. These requirements are identified as (1) access to the full range of programs and services available to nondisabled children, including regular and vocational education programs and curricula and work-experience programs; (2) individualized education programs, including statements of needed transition services for students age 16 and younger, if necessary; (3) education of students with disabilities in the regular education environment and the availability of a continuum of alternative placements; and (4) state systems for general supervision including complaint management and due process hearing systems.[102]

3. The Monitoring Cycle For 1997-1998, OSEP conducted implementation planning visits in lieu of monitoring visits. The purpose of these visits was to provide technical assistance to states on the requirements of the new law. OSEP began monitoring with the new continuous improvement monitoring process in the fall of 1998. Before IDEA '97, states were on a four-year monitoring cycle. Every year 12 to 15 states were monitored.[103] The monitoring cycle described and the monitoring reports analyzed below predate the changes OSEP implemented in the fall of 1998.

4. The Monitoring Process Before the Fall of 1998 The monitoring process took place in four phases: pre-site activities, the on-site visit, the issuance of the report, and the corrective action plan.

a. Pre-Site Activities Approximately three to six months before an on-site visit, OSEP took the following steps: (1) scheduled public meetings and on-site visit dates with the state, (2) informed interested parties of the meeting dates and sites, (3) requested documents from the state for review, (3) held public and outreach meetings in the state to gain input, (4) determined issues to be reviewed and established a schedule for interviews with the SEA, (5) selected agencies and schools/programs to be visited, (6) contacted local sites, (7) established schedules, and (8) requested documents. Monitoring staff were usually in the state for about one week for the pre-site activities.

Beginning in 1994, OSEP began conducting outreach meetings in addition to public meetings, which were open forums. These meetings were by invitation only and included disability leaders in the state, representatives of the Parent Training and Information (PTI) centers and the Protection and Advocacy (P&A) systems. Generally about 12-20 disability leaders from the state attended the meetings.

Attendance at the public meetings ranged from five to 200. Between one and six public meetings were held in different geographic locations in a state, at different times of the day. SEA mailing lists, and sometimes lists from PTIs or other advocacy groups, were used to send "interested party" invitations to the meetings.

After the pre-site activities, in preparation for the site visit, the monitoring staff analyzed the information collected in the state and gathered and considered additional relevant information obtained from (1) complaints received by OSEP about the state and its policy and procedures, and (2) contacts with the Office for Civil Rights (OCR), the Rehabilitation Services Administration (RSA), and advocacy groups within the state. All of this information was used to determine what issues were to be examined and where the on-site visits were to take place.

b. The On-Site Visit The on-site visit usually lasted a week and took place about five to six weeks after the pre-site activities. Six to ten people made up the monitoring team. The on-site visit involved meeting with officials of the SEA and visiting LEAs, including schools. The monitoring team used the information gathered from the pre-site activities to determine which LEAs to visit. It considered when the state last monitored the LEA, and chose some LEAs that had been recently monitored by the state and some that had not been monitored for a long period of time. It looked at the results of the SEA monitoring and compared them to its own results. If the team saw differences that hadn't been corrected, it knew the states were not enforcing the corrections. If it found deficiencies that the state monitoring had not found, there was an indication that the state monitoring system was not effective in identifying deficiencies.[104]

In smaller states, the monitoring teams usually visited four or five LEAs. In larger states, the teams visited eight to 10 LEAs. The LEAs were notified by the SEA two to three weeks in advance that the monitoring team would be visiting. The team tried to have geographic diversity in its visits and took special populations into consideration. It looked at LEA data regarding placements in separate settings, personnel, related services, etc. The data may have revealed problems in the LEA that the team may have pursued while visiting there. The team tried to visit elementary schools, middle schools, and high schools. It met with administrators, looked at student records, and interviewed teachers. It did not observe students or compare the students' records to the students' experience.[105]

The team members in the field talked with the team members at the SEA to discuss data collection and potential findings. An exit conference was held with the SEA to present the preliminary findings.[106]

c. The Monitoring Report The monitoring team returned to Washington, DC, and worked together to analyze the data they had collected and the results of the monitoring visit. The team might call the state back to request clarification or additional information. The report was developed and reviewed by the team leader, the division director, the director of OSEP, and the OGC. The report was cleared and issued to the Chief State School Officer with a copy sent to the director of special education in the state.

The intended time line for the issuance of the report was 150 to 180 days after the on-site visit.[107] Analysis of the most recent monitoring reports for each state revealed that the time elapsed between the monitoring visit and 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.

In the past, OSEP issued draft reports to the states, and the states could then respond and defend their response. OSEP would consider their response and might make changes in the report based on that response. OSEP eliminated this practice with the 1994-95 monitoring cycle. It began issuing only the final report. The state had 15 calendar days from the date it received the report to submit a letter to OSEP documenting findings in the report that were without legal or factual support. If OSEP determined that it was necessary to delete or revise a finding, a letter setting forth the deletion or revision was appended as part of the report.[108]

d. Corrective Action Plans In every monitoring report that documented findings of noncompliance (which were all monitoring reports), parameters for a corrective action plan (CAP) were set forth. OSEP was available to work with the state to develop the plan. The plan was to be submitted to OSEP within 45 days of receipt of the report. If the state did not submit a plan, OSEP unilaterally would develop the CAP for the state.[109] (OSEP reported that to its knowledge this circumstance never occurred.)[110]

The time line for completing a corrective action plan ranged from one to three years, with the average being two years. The deadline depended on the nature of the deficiency, as correction for some might take significantly more time than for others.

Follow-up visits might be conducted to determine the implementation of the CAP. For some states, submission of documentation might be the follow-up. Generally, OSEP reported that it conducted four to six follow-up visits per year to assess CAP implementation.

Generally, follow-up visits were similar to mini on-site visits. The follow-up team comprised two to three people who visited the state office for about two days and LEAs for about two days. If OSEP determined that the corrective action plan had been implemented and was effective, it closed out the plan. In situations where OSEP found little or no change, it scheduled another follow-up visit. In two situations (Pennsylvania and New Jersey) where the second follow-up visit found continued noncompliance, the states were designated as high risk grantees (see earlier discussion).

e. OSEP's Maintenance of Monitoring Reports and Records Regarding Monitoring Reports OSEP's policy was to keep monitoring records related to IDEA for three to five years.[111] Thus, OSEP appeared to have very few monitoring reports more than five years old, nor did they have an inventory listing that reported which ones they possessed and which ones they did not. This study initially requested a complete set of reports for 11 states, going back in time as far as DoED had records. Because of the limited availability of reports, this request was modified to include only six states. For one state, Illinois, the oldest report DoED had was from 1991. For other states, some reports were missing (for example, while DoED had the 1983 report from New York, it did not have the 1987 report). There was no chronology of monitoring over time in OSEP.

5. Analysis of Fifty Federal Monitoring Reports Little research on state compliance with special education requirements over time has been conducted. NCD was aware of only one study that had examined compliance trends. That study, released in1993 by the National Council on Disability, disaggregated OSEP state monitoring data collected from April 1989 to February 1992 to the school district level. The study revealed very high levels of school district noncompliance as noted in Table 3 below.[112]

Table 3: State Monitoring Data (Reprint from NCD Study)

Requirement	Districts Monitored	Districts in Noncompliance	Percentage in Noncompliance
IEP	165	150	90.9%
LRE	165	143	86.7%
Procedural Safeguards	165	152	92.1%

Note: IEP = Individualized Education Program; LRE = Least Restrictive Environment

The analysis below, based on a study of the most recent OSEP monitoring report issued for each state, summarizes the findings of noncompliance for each state in seven areas.

a. Methodology The most recent OSEP monitoring report of every state was reviewed and analyzed. These reports were issued between 1994 and 1998. Seven key areas of legal requirements were analyzed for each state: (1) FAPE, (2) LRE, (3) IEP, (4) transition, (5) general supervision, (6) procedural safeguards, and (7) protection in evaluation. These were requirements that OSEP had chosen to monitor in most of the states, which had been monitored fairly consistently across states over time.

b. Standards Used by OSEP for Determining Noncompliance It should be noted that the charts and tables throughout this section depict findings of noncompliance in the indicated areas for each state, but not the extent of noncompliance represented by that finding. 

The OSEP monitoring process has had no measurable benchmarks or clear criteria for distinguishing the severity of LEA noncompliance with any given requirement. OSEP reported that it made a finding of noncompliance in a state only when such noncompliance was "systemic," meaning that it had occurred "with some frequency,"[113] although there was no regulation or documented policy, guidance, or internal procedure stating this particular criterion. Indeed, the "systemic" criterion, even as OSEP defined it, was not consistently applied in making determinations of noncompliance."[114] This lack of consistency in how findings of noncompliance were made seemed at variance with the compliance standard for SEAs as articulated in the law and in OSEP's own communication to the states (see following discussion).

IDEA requires the SEA to "ensure" that the law's requirements are met by all educational programs that are, or should be, delivering special education services to students with disabilities.[115] In the 1997 Texas Monitoring Report, OSEP clarified the scope of the SEA's full responsibility for ensuring compliance, regardless of the methods the SEA might have used to identify and "count" deficiencies for correction.

"The procedures for TEA's District Effective Compliance system (Reference Guide, September 1996) state that, 'a discrepancy will be cited during the on-site review when it is determined that the violation in question occurs systemically throughout a campus, a district, or a cooperative... As a general rule, a discrepancy will be cited when a violation is found in 30 percent or more of the student programs reviewed.... Violations of "a more serious nature"...are to be cited whenever a single violation occurs. Otherwise, violations that occur in less than 30 percent of the files sampled are not cited, and TEA requires agencies to take no corrective action.'

"Although a state educational agency has some discretion about the method it uses to identify and ensure correction of deficiencies, it is responsible for ensuring that all Part B requirements are met by subgrantees for all students with disabilities. TEA must identify and document all noncompliance found through its monitoring process, even where the violation does not reach the 30 percent threshold, or does not meet the definition for "violations of a serious nature." Further, although corrective action that TEA requires may vary depending upon how isolated or systemic a finding is, it must ensure correction of all identified noncompliance."[116]

In this monitoring report, OSEP communicated the expectation that Texas' corrective action on this issue was to monitor such that all deficiencies were identified and corrected, "regardless of the prevalence or magnitude of those findings."[117] OSEP's finding and explanation made clear that it was the responsibility of the SEA to ensure correction of any occurrence of noncompliance with IDEA. Insofar as the SEA failed to ensure that all Part B requirements have been met, the SEA was not in compliance with IDEA.

Although OSEP articulated a clear standard with respect to findings of noncompliance, it emphasized that the severity and extent of noncompliance varied with each finding. A finding might have been based on an egregious problem or on a technical deficiency of a less serious nature (i.e., a finding of noncompliance with the procedural safeguard requirements might have been based on (1) a wholly ineffective due process hearing system, or (2) the state's failure to provide a fully accurate explanation of a procedural safeguard as part of its required notice to parents).[118] Likewise, a noncompliance finding might also have been based on several to many instances of noncompliance with a requirement. These variations in the severity and extent of a noncompliance finding, however, do not lessen the responsibility of the SEA for identifying and ensuring that all instances of noncompliance are corrected.

c. Summary of State Noncompliance Findings Chart 4 below indicates how many states failed to ensure compliance in each of the listed areas according to the most recent monitoring report for each state. The largest areas of noncompliance were general supervision, where 90 percent, or 45 states, failed to ensure compliance, and transition, where 88 percent, or 44 states, failed to ensure compliance. Other key noncompliant areas were FAPE, where 80 percent, or 40 states, failed to ensure compliance, and LRE, where 72 percent, or 36 states, failed to ensure compliance. Table 5 provides a state-by-state display of areas out of compliance. Thirty states failed to ensure compliance in five, six, or seven areas of IDEA requirements considered by this report. Appendix G provides a one page summary of the noncompliant findings for each state from its most recent monitoring report.

Chart 4: Number and Percentage of Noncompliant States in Each Area 
According to 1994-1998 OSEP Monitoring Reports

Area of Noncompliance	States Out of Compliance
	Number of States	Percentage of States
General Supervision	45	90%
Transition	44	88%
FAPE	40	80%
Procedural Safeguards	39	78%
LRE	36	72%
IEPs	22	44%
Protection in Evaluation	19	38%

[Table 5: State Noncompliance as Reported by 1994-1998 Monitoring Reports [119] not available.]

In the analysis of the fifty state monitoring reports below, each of the monitored requirements is described briefly with a summary of the findings from all fifty reports, followed by examples from the reports to illustrate the basis for OSEP's noncompliance findings.

d. Analysis of Findings of Noncompliance
i. Free Appropriate Public Education FAPE gives children with disabilities access to the supports and accommodations they need to obtain an education, requiring that special education and related services be made available to them in accordance with their IEPs. OSEP found that 40 states (80%) had failed to ensure compliance with the FAPE requirements. Specific FAPE requirements and the percentage of states in noncompliance are illustrated in Chart 6:

[Chart 6: State Noncompliance with FAPE Requirements not available.]

(a) Extended School Year ESY services must be made available to individual students who require such services in order for them to be receiving FAPE. This requirement recognizes that some students with disabilities will not receive an appropriate education unless they have special education or related services during the summer months.

OSEP found that 28 states (56%) had failed to ensure compliance with the ESY requirements, as shown in the following examples:

In Alabama, . . . [i]nterviews with teachers and administrators in public agencies A, B, and D revealed that extended school year was not available for students in the facilities visited by OSEP. Teachers interviewed ... stated that they were unsure as to the criteria for extended school year, and therefore did not know how to determine the need for extended school year services. None of these 11 teachers had ever participated in an IEP meeting where students were considered for such services. Both building level and district administrators... confirmed that teachers and administrators were not aware of the criteria for extended school year services.[120]

In four out of five public agencies visited in Iowa, OSEP determined that ESY services were not considered on an individual basis and provided to students who required them.[121]

In Delaware, OSEP found that availability of ESY services was restricted to students with autism and those who received "Level 5" services. Participation of other students in ESY services was not determined based on the IEP, and in some of the agencies visited it was not available to other students at all.[122]

In four of the five agencies visited in Connecticut, "...children with particular types of disabilities were categorically excluded from consideration for ESY services."[123]

Two teachers in an agency in Arkansas reported that the agency did not offer ESY and that it was never discussed at any IEP meeting they attended.[124]

(b) Related Services Students with disabilities must be provided with related services such as occupational therapy, speech therapy, physical therapy, and psychological counseling based on their individual needs as reflected in their IEPs. This requirement recognizes that without these related services, some students with disabilities cannot adequately access and learn their curricular materials.

OSEP found that 34 states (68%) had failed to ensure compliance with the related services requirements, as shown in the following examples:

In Florida, ...OSEP was informed in interviews with district and building-based administrators, teachers, and related services personnel in Agencies F, G, and H that psychological counseling, as a related service, is not available to students with disabilities, regardless of need. A building-based administrator in Agency E indicated that many students need psychological counseling but it is not available as a related service.

...OSEP was informed by two related service providers in Agency G that they were instructed not to list individual therapy on their caseload(s). They stated that they will provide the service informally, but it is not reflected on the student's IEP (there are no goals and objectives).

...A special education teacher in Agency H told OSEP that students may have to go to a center-based or day program if they need more intense counseling services.[125]

In one agency in Minnesota, OSEP found that psychological counseling was not considered for inclusion in any student's IEP.[126]

An administrator from an agency in Arizona confirmed "that related services (speech therapy, occupational therapy, and physical therapy) are not based on the individual student's needs but are based upon the availability of the service provider."[127]

Administrators and teachers from two agencies in Oklahoma stated that psychological counseling services are not provided based on an IEP, even if a child needs such services to benefit from special education.[128]

In one district in California, an administrator told OSEP that there were 42 students whose IEPs called for speech services, but who were not receiving the services; in another district, an administrator reported that students whose IEP teams believed they needed mental health services to benefit from special education were referred to outside agencies for the services, rather than receiving the services free of charge through their IEPs.[129]

(c) Length of School Day Unless their individual needs dictate otherwise, the length of the school day for students with disabilities must meet their state's general standard.

OSEP found that five states (10%) had failed to ensure compliance with this requirement, as shown in the following examples:

Administrators in two districts in Delaware reported that 17 students had their school days shortened by an hour and a half due to " transportation schedules."[130]

In Arkansas, ...[b]ecause there were not enough modified buses in the agency to transport students with disabilities, an administrator in Agency C reported that six students received one hour fewer per day than the state standard.

One administrator reported and another administrator confirmed that a classroom of children with disabilities in Agency B had their school day shortened by 30 minutes per day, which was less than the state standard, because students in a self-contained program were transported from the school where their classroom was located to their 'home school' in order to catch the regular bus.

An Agency J administrator reported to OSEP that four children with disabilities who attended the vocational technical program were in school one hour fewer than the state standard because of the time needed to transport them from another district. As a result, these children were only able to get two hours of credit for their vocational class at Agency J--instead of the normal three hours of credit.[131]

(d) Provision of Special Education/Program Options Available Students' IEPs must set forth with specificity the amount of special education and related services the students are to receive. These decisions must be based upon individual need. In addition, program options that meet their needs must be made available to students with disabilities.

OSEP found that 15 states (30%) had failed to ensure compliance with these requirements, including the following examples:

In [Pennsylvania] public agency C, six of seven records reviewed by OSEP had no specific statements of special education or related services.[132]

In Connecticut, ...OSEP found that the technical vocational education such as that provided through the state-operated regional schools was not an available program option for students with moderate or significant disabilities. OSEP confirmed through interviews that although some high school students could benefit from technical vocational education available only at the regional programs, this option was not available to certain students with disabilities.[133]

In Kentucky, OSEP found that 22 of 53 IEPs reviewed, in three of the four agencies visited, either did not state the specific amounts of special education and related services or stated the amounts in ranges. Individuals interviewed reported that the amount of services was not based upon individual student needs. In addition, twelve of the 53 students were not receiving services that conformed to their IEPs. [134]

In Ohio, OSEP reviewed 94 student records in 11 of the 12 agencies visited, and identified 75 cases in which the amount of special education and related services was either not recorded on the IEP or the services were stated in ranges. Teachers, related service providers, and agency administrators reported that the amount of services was stated as a range because the lesser amount reflected state minimum standards, while the greater amount indicated the child's actual need. The child would receive the amount of services needed if the therapist had time to provide it; if not, the child received the lesser amount.[135]

ii Least Restrictive Environment LRE requirements hold that students with disabilities should be educated, to the maximum extent appropriate, with their nondisabled peers. Separate schooling or separate classes or other removal of children with disabilities from the regular educational environment must take place 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 satisfactorily achieved.

OSEP found that 36 states (72%) had failed to ensure compliance with the LRE requirements. It is interesting to note that of the remaining fourteen states, OSEP found six states not out of compliance on LRE, but provided no information at all on LRE compliance for the other eight states. In all six states found not out of compliance, the finding was based on site visits that had not included any separate facilities. Such facilities have been sources of findings of LRE noncompliance in many states.

It was also noteworthy that during this period of time, OSEP conducted monitoring visits at only three state schools for students who are deaf or have visual impairments,[136] and only three separate private facilities. These sorts of facilities have powerful political constituencies, both nationally and in many states. It is of particular importance that OSEP monitored such facilities because states sometimes have failed to exercise their general supervisory authority over them. In Kentucky, for example,

"[a]t the time of OSEP's 1992 Monitoring Report, KDE [Kentucky Department of Education] acknowledged that it had not monitored the Kentucky School for the Deaf and the School for the Blind for approximately 10 years. Comments received at the public meetings held in June prior to OSEP's September 1995 on-site visit indicated that KDE maintains a "hands off" policy toward both state schools and that KDE has not yet monitored either school even though OSEP's 1992 report had cited KDE for failure to exercise general supervisory authority over these programs. During OSEP's 1995 monitoring visit, KDE administrators acknowledged that they had failed to exercise their general supervisory responsibility for these programs in that the Kentucky School for the Deaf had not yet been monitored by KDE for compliance.... 

Although the Kentucky School for the Deaf was conducting a self-study during the 1995-96 school year in preparation for an on-site monitoring visit during the 1996-97 school year, and the Kentucky School for the Blind had received an on-site monitoring visit in March 1995 and a follow-up visit in September 1995, at the time of OSEP's visit, KDE could not provide OSEP with documentation to verify that special education programs for children enrolled in these schools meet state and federal requirements."[137]

Finally, there was no evidence in the text of any of the reports indicating that OSEP reviewed the files of students placed in out-of-state residential facilities for LRE compliance. Without such review, it was difficult to determine OSEP's basis for the following conclusion: "During the 1992-1993 school year, Iowa Department of Education (IDE) placed approximately 200 students in out-of-state programs, based upon their unique needs."[138] Specific LRE requirements and the percentage of states in noncompliance are illustrated in the following chart:

[Chart 7: State Noncompliance with LRE Requirements not available.]

(a) Education with Nondisabled Students/Removal Only When Aids and Services Standard Met Students with disabilities must be educated with nondisabled students to the maximum extent appropriate to meet their needs. Removal from less restrictive settings can occur only if students' IEPs cannot be implemented in those settings, even with the use of supplementary aids and services.

However, OSEP found that 32 states (64%) had failed to ensure compliance with these requirements, including the following examples:

OSEP found that in two districts in Mississippi, regular class placements were not discussed at annual review or IEP meetings for some students with disabilities. One teacher told OSEP that this did not occur "even though some of the students this teacher serves could probably perform satisfactorily in some of the regular academic classes."[139]

Administrators and teachers in three districts in Delaware told OSEP that these LRE requirements were not followed in their districts because the state's funding formula was a disincentive to regular class placements for students with disabilities.[140]

In Idaho, "....OSEP found that the removal of children with disabilities from regular education programs in public agency B was not based on a determination that the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services could not be achieved satisfactorily, but, rather on administrative convenience. A special education teacher of a self-contained program for students with moderate to severe/ profound disabilities ... stated, 'These students have been here forever. This is where they have been and this is where they are going to be.' She further stated that other options in less restrictive settings are not explored or considered by the IEP team."[141]

In Iowa, [t]wo...administrators responsible for the administration and supervision of programs in public agency E stated that the consideration of the supplementary aids and services needed by a student with disabilities is "not part of the IEP process."[142]

(b) Nonacademic and Extracurricular Students with disabilities must participate with nondisabled peers in nonacademic and extracurricular activities and services to the maximum extent appropriate to their needs.

OSEP found that 29 states (58%) had not ensured compliance with these requirements, as shown in the following examples:

In New York, "[t]he special education director and a program administrator in public agency F informed OSEP that there was no individualized determination of the maximum extent to which each student with a disability placed in the BOCES' center-based (separate school) programs could participate with nondisabled children in nonacademic and extracurricular services and activities, and that there were currently no opportunities for such integration, regardless of individual student need."[143]

In South Carolina, "OSEP determined in interviews with administrators in agencies C and G that the participation of students with disabilities with nondisabled peers in nonacademic and extracurricular activities was not determined on an individual basis. The administrator in agency G reported efforts on the part of the agency to involve disabled students in nonacademic and extracurricular group activities at neighboring regular education schools. However, participation was not based on the individual needs of students, but on the activities (e.g., assemblies) being available to the entire class of special education students as a group activity. The administrator in agency C stated that participation in nonacademic and extracurricular activities is not occurring for most of the students enrolled in the agency C separate facility, even though these students could benefit from participation in nonacademic and extracurricular activities with nondisabled peers."[144]

In California, three administrators reported that "students identified as seriously emotionally disturbed who are served in a separate school program in the district, and students with disabilities who are served in the agency's preschool program (separate school), are not provided adequate opportunities for integration with age appropriate peers, regardless of individual need. [These administrators] reported to OSEP that as a general practice there was no individualized determination of the maximum extent to which each student with a disability placed in the separate school programs could participate with nondisabled children in nonacademic and extracurricular services and activities."[145]

(c) Placement Based on IEP Placement decisions for students with disabilities must be based on their IEPs. The practice of not basing placement decisions on students' IEPs can have the effect of depriving some students with disabilities of access to schools attended by their friends and neighbors.

OSEP found that 19 states (38%) had failed to ensure compliance with this requirement, including the following examples:

An agency administrator in Ohio stated that "approximately 25 percent of the students who are placed into special education programs are placed prior to the development of their IEPs. A teacher [in the same agency] high school visited by OSEP stated that placements were based on parent request, administrative convenience, or category of disability, rather than on the students' IEPs."[146]

In Iowa, "[b]oth teachers interviewed by OSEP in the school visited in agency B indicated that placement is determined prior to the development of a student's IEP.

Two of the four teachers interviewed by OSEP in agency C indicated placement is determined prior to the development of a student's IEP.

An administrator and two teachers from the elementary school in agency D told OSEP that, for both initial and subsequent placements, placement is determined prior to the development of the student's IEP."[147]

In Connecticut, "OSEP found that students with moderate, significant, or profound disabilities are not permitted to attend the high school that agency D nondisabled students attend. Special education teachers, the administrator of the middle school, the administrator responsible for supervising the provision of special education services in agency D and a school nurse, and the PPT minutes in student records confirmed that placement practices for these students were not based on the student's IEP, but rather on the student's IQ, program location and availability of related services (e.g., medical services)."[148]

(d) Continuum Available to Extent Necessary A continuum of placement options must be available to students with disabilities to the extent necessary to implement their IEPs. The lack of availability of a full continuum of placement options can have the effect of forcing students into placements that are more restrictive than necessary to implement their IEPs.

OSEP found that 17 states (34%) had failed to ensure compliance with this requirement, including the following examples:

Teachers and a building-level administrator in a Rhode Island public agency told "OSEP that, at their school, full-time regular education placement . . . was not a continuum option for any students with disabilities. At [a second public agency], three teachers told OSEP that full-time regular education was not a continuum option for any of the students with disabilities attending the school that OSEP visited. Administrators and teachers at [a third agency] told OSEP that currently, full-time regular education placement was not an option in the district."[149]

The inability or unwillingness of school districts to provide a full continuum of placement options also can have the effect of forcing students into placements that are more restrictive than necessary to implement their IEPs:

In New Jersey, "[a]n administrator stated that the Child Study Team ... looks at a student's classification at the annual review and determines whether or not a student is eligible for Resource Room services. A teacher and administrator further elaborated that the Resource Room option is limited to two periods a day. If more time is required, the student is placed in a self-contained classroom for a full day. There are no other options for resource service for more than two periods or less than a full day."[150]

(e) Placement Determined at Least Annually Placement decisions for students with disabilities must be made at least annually. Failure to re-evaluate placement annually can result in continuing placements that no longer meet the educational and related service needs of the child.

OSEP found that eight states (16%) had failed to ensure compliance with this requirement, including the following examples:

"An administrator and two teachers from public agency C in North Carolina informed OSEP that placement determinations are reviewed after the triennial re-evaluation unless the child's parents want a program change prior to the re-evaluation. An administrator and one teacher from public agency D stated that placements for students with disabilities are determined at the time of initial placement into the special education program and thereafter at three-year intervals coinciding with the time of the student's re-evaluation, unless special circumstances arise indicating that a change may be needed. Teachers from public agencies F and H told OSEP that the IEP team does not reconsider the student's placement until the student is ready for a higher functioning program, or the student 'ages out' to the next level."[151]

In Georgia, "[w]hen asked how often placement determinations for students with disabilities are made, three administrators and four teachers from agencies A, D, and E informed OSEP that placement options are considered at initial placement and at triennial meetings, but not at annual reviews. 'At annual reviews, we just look at goals and objectives' explained a teacher from agency A."[152]

iii Individualized Education Programs IDEA requires that all students have an individualized education program that documents (1) their current level of performance, (2) their goals and objectives, (3) the services to be provided to meet those needs, (4) the dates for initiation of services and anticipated duration, (5) criteria for determining the extent to which objectives are being met, and (6) transition service for students aged 16 and older.

OSEP found that 22 states (44%) had failed to ensure compliance with the IEP requirements. Specific IEP requirements and the percentage of states in noncompliance are illustrated in the following chart (Chart 8):

[Chart 8: State Noncompliance with IEP Requirements not available.]

(a) IEP Content IEPs for students with disabilities must address their unique individual needs and must include students' present levels of performance; annual goals; short-term objectives; and evaluation criteria, procedures, and schedules. IEPs must also include the extent to which students will participate in general education programs.

OSEP found that 20 states (40%) had failed to ensure compliance with the IEP content requirements. The failure to base IEPs on the unique individual needs of students is also demonstrated by goals and objectives that do not correspond to the needs identified by students' IEPs. For example,

"OSEP's comparison of 17 IEPs in a New Jersey agency showed identical goals and objectives for 16 children. A teacher stated that all students were taught the same skills and that the goals were based on the curriculum. During th