Wrightslaw l No Child Left Behind l IDEA 2004 l Fetaweb l Yellow Pages for Kids l Harbor House Law Press

 Home > Main Law Library > Articles & Reports > Back To School On Civil Rights Part III


The Special Ed Advocate
It's Unique ... and Free!

Enter your email address below:

 

2014 - 2015 Training Program

July 24 - Jackson, MS

Aug 2 - Birmingham, AL

Aug 3-8 - Wmsburg, VA

Oct 23 - Wilton, CT

Oct 25 - Olympia, WA

Oct 30 - Phoenix, AZ

Nov 6 - McAllen, TX

Nov 21 - Temecula, CA

Dec 4 - OKC, OK

Full Schedule

Be a Hero ...

 Candle in window
... to a Hero
Learn more

Wrightslaw

Home
Topics from A-Z
Free Newsletter
Seminars & Training
Consultations
Yellow Pages for Kids
Press Room
FAQs
Sitemap

Books & Training

Wrightslaw Books & DVDs
Wrightslaw Storesecure store lock
  Advocate's Store
  Student Bookstore
  Exam Copies
Training Center
Bulk Discounts
New! Military Discounts
Mail & Fax Orders

Advocacy Library

Articles
Doing Your Homework
Ask the Advocate
FAQs
Newsletter Archives
Summer School Series
Success Stories
Tips

Law Library

Articles
Caselaw
IDEA 2004
No Child Left Behind
McKinney-Vento Homeless
FERPA
Section 504
Fed Court Complaints

Topics

Advocacy
ADD/ADHD
Allergies
Assistive Technology
Autism Spectrum
Behavior & Discipline
Bullying
College/Continuing Ed
Damages
Discrimination
Due Process
Early Intervention (Part C)
Eligibility
ESY
Evaluations
FAPE
Flyers
Future Planning
Harassment
High-Stakes Tests
Homeless Children
IDEA 2004
Identification & Child Find
IEPs
Juvenile Justice
Law School & Clinics
Letters & Paper Trails
LRE/Inclusion
Mediation
Military / DOD
No Child Left Behind
NCLB Directories
NCLB Law & Regs
Parental Protections
PE and Adapted PE
Privacy & Records
Procedural Safeguards
Progress Monitoring
Reading
Related Services
Research Based Instruction
Response to Intervention (RTI)
Restraints/Abuse
Retention
Retaliation
School Report Cards
Section 504
Self-Advocacy
Teachers & Principals
Transition
Twice Exceptional (2e)
VA Special Education

Resources & Directories

Advocate's Bookstore
Advocacy Resources
Directories
  Disability Groups
  International
  State DOEs
  State PTIs
Free Flyers
Free Pubs
Free Newsletters
Legal & Advocacy
Glossaries
   Legal Terms
   Assessment Terms
Best School Websites

 
Back to School on Civil Rights 

III. Grant Administration, Compliance-Monitoring, Complaint-Handling, and Enforcement Functions (continued from III-A)

6. Persistence of Noncompliance Over Time
   a. Analysis of Current Monitoring Reports
   b. Analysis of Six States Over Time

California
Illinois
New York
Oregon
Texas
Vermont
7. OSEP Initiatives to Address Marginalization Issues

8. Perspectives on Impact of Federal Compliance Monitoring

C. Oversight: Complaint Handling
D. Enforcement

6. Persistence of Noncompliance Over Time
This study was concerned with the effectiveness of the monitoring process from 1975 up to 1998. In other words, if areas of noncompliance were pointed out and plans of correction are implemented, one would have expected improvement in the noncompliant area. In order to determine whether or not improvements took place over time, NCD undertook two analyses. First, we analyzed the current monitoring reports to determine how frequently there were citations of previous areas of noncompliance that had not been corrected. Second, we examined several monitoring reports over a span of years in each of six states to determine the extent to which areas of noncompliance were persistent. According to one expert, "[t]he real test of a monitoring process is whether identified deficiencies are corrected."[195]

a. Analysis of Current Monitoring Reports
The most recent monitoring reports of twelve states (24%) indicated continuing areas of noncompliance from previous federal monitoring reports or other compliance-related OSEP activities. The areas of continuing noncompliance were often with requirements that were important to the educational careers of students with disabilities.
"...[S]everal deficiencies identified in OSEP's 1993 monitoring report do reappear in this Report. Specifically, OSEP continued to find deficiencies in requirements related to ensuring compliance through monitoring, approval of complete local educational agency applications, the provision of a free appropriate public education, and placement in the least restrictive environment."[196]
A   "In a few instances [placement in the least restrictive environment, provision of a free appropriate public education, state educational agency monitoring, and complaint management] this Report includes continuing findings that were first noted in the 1991 compliance report."[197]

B   "OSEP noted ... that many deficiencies identified during OSEP's previous monitoring in April of 1989 continue to exist. Specifically, OSEP found serious deficiencies in requirements related to ensuring compliance through monitoring, complaint resolution, and due process hearings. OSEP also noted significant continuing deficiencies related to placement in the least restrictive environment .... Although the Report contains numerous findings in the nine areas of responsibility..., OSEP notes that the seriousness of the findings described above requires NYSED's [New York State Education Department's] immediate attention.

OSEP is extremely concerned about these continuing deficiencies, and notes that NYSED has previously provided documentation to OSEP to verify that many of the deficiencies had been corrected."[198]
C   "...OSEP noted ... that many deficiencies identified during OSEP's previous monitoring in March of 1988 continue to exist. Specifically, OSEP found serious deficiencies in requirements related to ensuring compliance through monitoring ..., and ... found that NMSDE [New Mexico State Department of Education] had not implemented revised monitoring procedures that were required and approved by OSEP as part of the corrective action resulting from OSEP's previous monitoring visit. In addition, similar deficiencies continued in the areas of Individualized Education Program development...and a full explanation of procedural safeguards to parents .... ...Although the Report contains numerous findings in the five areas of responsibility..., OSEP notes that the seriousness of the findings described above requires NMSDE's immediate attention.
OSEP is concerned about these continuing deficiencies, and notes that NMSDE has previously provided documentation to OSEP to verify that many of the deficiencies had been corrected. With respect to monitoring, OSEP had approved NMSDE's development of a revised monitoring system that met federal requirements on May 4, 1990, but now finds that NMSDE has not implemented this corrective action required by OSEP...."[198a]
D   "We are concerned about the continuing existence of two findings of deficiency that OSEP first identified in MDE's [Minnesota Department of Education] 1991 compliance report. First, MDE has not implemented a system to ensure that deficiencies it identifies in Minnesota public agencies are corrected in a timely manner. Although MDE had submitted approvable procedures for ensuring correction of public agencies' deficiencies, OSEP finds that MDE had not implemented these procedures. Second, OSEP finds that the MDE routinely violates the federal time line for investigating and resolving complaints. This deficiency was first identified in the 1991 compliance report and continued to exist at the time of OSEP's September 1994 on-site visit. I bring these two areas to your attention because of the serious issue they raise with regard to MDE's ability to exercise general supervisory authority to ensure that all public agencies in the state comply with Part B."[198b]

E   "OSEP found the following five continuing deficiencies that were first identified in the 1991 Report and for which MASSDE [Massachusetts Department of Education] previously provided documentation to OSEP to verify that the deficiencies had been corrected:

  • MASSDE has not monitored to ensure that deficiencies are identified in public agencies in Massachusetts and are corrected in a timely manner. Although MASSDE submitted appropriate procedures for identifying and ensuring correction of public agencies' deficiencies, OSEP finds that MASSDE has not implemented these procedures.

  •  
  • MASSDE has not established procedures to ensure that Part B funds are distributed to ... LEAs based on approved applications from those LEAs.

  •  
  • MASSDE's procedures for investigating and resolving complaints and conducting due process hearings have not ensured resolution of either within the time lines prescribed . . . .

  •  
  • MASSDE has not met its responsibility to ensure that public agencies make placement decisions consistent with the least restrictive environment requirements . . . . 

  •  
  • MASSDE has not implemented procedures which ensure that annual meetings are held to develop, review, and, if necessary, revise all components in the student's IEP."[198c]
"MDOE [Maine Department of Education] has not exercised its general supervisory authority, to fully correct all of the deficiencies identified by OSEP in the 1994 Monitoring Report. Specifically, although OSEP found these same deficiencies in the 1994 report, OSEP again found the following deficiencies:

(1) Eligible individuals incarcerated in Maine state and local adult correctional facilities have not been located, identified, evaluated, and provided with a free appropriate public education;

(2) Complaint management procedures do not ensure that any complaint that a public agency has violated a requirement of Part B is resolved . . .;

(3) . . .MDOE has not ensured that the provision of a free appropriate public education is not delayed, interrupted, or denied to children . . . ."[198d]

F   "KDE [Kentucky Department of Education] was cited in OSEP's 1992 monitoring Report for failure to exercise general supervisory responsibility over Department of Corrections educational programs for youth with disabilities, but KDE has yet to provide or establish a system to ensure provision of special education and related services to eligible youth in these facilities. Consequently, KDE has failed to exercise its general supervisory responsibility to implement procedures to ensure that these programs provide special education and related services to youth with disabilities...as required in OSEP's previous corrective action plan."[198e]

G    "In December 1992, OSEP referred a complaint alleging Part B violations to ISBE [Illinois State Board of Education] for resolution . . . ISBE informed the complainants that their complaint was "untimely" and that ISBE would not investigate it because '[ISBE's] complaint procedures require that the violation must have occurred within 180 calendar days of the date the complaint was filed with [ISBE].' In February 1993, OSEP again referred the complaint to ISBE, stating that such a dismissal 'is not consistent with the complaint provisions applicable to [Part B].' In March 1993, ISBE again declined to resolve the complaint, citing the 180-day time limit; explaining that in establishing the 180-day limitations period ISBE adopted the limitations period established by the Office for Civil Rights for complaints filed with that office, and enclosing 'a current copy of [ISBE's] internal procedures which include the 180-day time limit.' In a September 6, 1994, letter, OSEP asked ISBE to advise OSEP within 15 days whether ISBE's current procedures included a time limitation, and--to the extent that ISBE's procedures include any time limitation on the filing of complaints--the specific steps that ISBE will take to revise its procedures, and the time lines for those steps. On September 16, 1994, ISBE responded, stating that it would "revisit" the time line; a further ISBE response of October 4, 1994, confirmed that it 'still set a 180 day time line.'

In preparation for the May 1995 monitoring visit, OSEP requested from ISBE a copy of its procedures for resolving complaints. . . . ISBE submitted to OSEP a copy of a document entitled, "Investigation and Resolution of Complaints." Those procedures state that, 'An EDGAR [Education Department General Administrative Regulations] investigation is conducted only on current disputes. An investigation will not be conducted on retrospective or prospective violations.'

Thus, despite clear OSEP directives to ISBE over a more than two-year period that it must revise its complaint resolution procedures to eliminate a time limitation on the filing of Part B complaints, ISBE's procedures continue to exclude complaints that are not 'current.'"[198f]

H   "OSEP is particularly concerned with the persistence of serious problems in the area of ... least restrictive environment. This finding was cited both in the 1993 monitoring report and in the October 1995 letter issued to FLDE [Florida Department of Education] subsequent to OSEP's follow-up visit to FLDE in March of 1995." [198g]

"OSEP noted in its development of this report that some of the deficiencies identified during OSEP's previous monitoring in February of 1989 continue to exist. Specifically, OSEP found deficiencies in requirements related to ensuring compliance through monitoring and implementation of placement in the least restrictive environment. OSEP is concerned about these continuing deficiencies and notes that CSDE [Connecticut State Department of Education] had previously provided documentation and assurances to OSEP to verify that the deficiencies had been corrected and recurrence had been prevented. In this regard, CSDE must take immediate and forceful steps to correct deficiencies throughout the state or risk the imposition of sanctions, including the withholding of federal funds."[198h]


I   "OSEP is particularly concerned that AKDE [Alaska Department of Education] has not implemented procedures to ensure that eligible persons with disabilities incarcerated in the state's adult correctional facilities are provided a free appropriate public education. This issue was cited as an area of noncompliance in OSEP's 1994 monitoring report to AKDE, however, at the time of OSEP's 1996 monitoring, AKDE had taken no definitive action in this area."[198i]

As is clear from the cover letters and reports quoted above, continuing noncompliance appeared in many cases to be the result of an unwillingness on the part of SEAs to implement corrective actions the SEA and OSEP had previously agreed upon, or to follow clear OSEP directives. This finding may not be surprising because OSEP apparently did not begin significant enforcement activities as a result of discovering that these SEAs had not lived up to their corrective action or other commitments.

b. Analysis of Six States Over Time

i. Methodology and Limitations
All reports for a selected group of eleven states, since the beginning of federal special education monitoring efforts, were requested from OSEP.[198j] Unfortunately, OSEP did not have a policy of retaining copies of all reports at the time the research for this study was conducted: "...OSEP generally does not keep records regarding IDEA monitoring activities for more than three to five years."[198k] Neither did OSEP have an inventory of the reports that they did possess, so it was not possible to pre-determine which states had the most complete set of reports. California, Illinois, New York, Oregon, Texas, and Vermont were ultimately chosen to be studied in depth because there appeared to be a reasonable number of reports available going back in time.

Because OSEP did not consistently display areas of compliance in its reports, as mentioned above, the resulting limitations on this part of the current study were significant. Requirements were chosen for analysis if the most recent report displayed a definite compliance status for it, and if there was at least one earlier report that displayed a definite compliance status for that requirement.[198l] It was possible that when a report gave no information about a requirement the state was compliant, that it was a "single cite" instance of noncompliance, or that compliance with the requirement was not monitored at all. These limitations should be kept in mind by the reader.

ii. Six States Over Time
According to OSEP, the six states studied served 1,734,227 students with disabilities ages three to 21 under Part B of IDEA during the 1995-96 school year.[198m] Hence, these states served 30.9 percent of the total students served under Part B nationwide.

(a) California
Three monitoring reports from California were analyzed: 1988, 1992, and 1996. As displayed in the following table, and as qualified by the limitations affecting this study, California came into compliance with only one of 10 requirements (10%) over time--the requirement under general supervision, the review and approval of LEA applications. Of the nine that remained noncompliant, seven remained noncompliant for almost eight years, and two for four years.

Table 15: Noncompliance Over Time in California
Requirement 4/6/88 2/11/92 2/5/96
FAPE: Related Services X X X
LRE: Education with Nondisabled/Removal Only When Aids/Services Standard Met X X X
LRE: Nonacademic & Extracurricular X X X
LRE: Placement Based on IEP X X X
General Supervision: Review and Approval of LEA Applications X X C
General Supervision: Complaint Management: Resolved Within 60 Days NI X X
General Supervision: State Monitoring: Method to Determine Compliance X X X
General Supervision: State Monitoring: Effective Method for Identifying Deficiencies X X X
General Supervision: State Monitoring: Correction of Deficiencies X NI X
Procedural Safeguards: Content of Notice NI X X

Key to Tables: X--Noncompliant, C--Compliant, NI--No Information

Although OSEP could not provide the 1980 report, California was apparently monitored in 1980 and 1985 also. At a Congressional hearing, David Rostetter testified about these efforts:

"In November 1980 OSEP issued a 56-page monitoring report to the state of California. It was clearly the most rigorous effort at enforcement attempted up to that point. Unfortunately, a presidential election resulted in an administration that ordered OSEP to negotiate the findings and 'close out' the issues immediately. Not surprisingly, these same deficiencies again were found during the September 1985 on-site review of California. Prior to the visit, the Deputy Assistant Secretary advised me to 'avoid making findings' as a result of the California review. This 'advice' was never heeded. As of this date, the findings in the November 1980 letter remain unaddressed. Since that time over half a billion dollars in federal funds has been awarded to California in the presence of clear evidence of noncompliance."[198n]
It is impossible to tell from the information provided whether some of these requirements have been in noncompliance since 1980.

(b) Illinois
The 1991 and 1996 Illinois monitoring reports were analyzed. As displayed in the following table and as qualified by the limitations affecting this study, Illinois came into compliance with six of 14 requirements (43%) over time. The eight with which the state remained noncompliant have been in this status for almost five years.

Table 16: Noncompliance Over Time in Illinois
Requirement 5/23/91 2/21/96
FAPE: Related Services X X
FAPE: Provision of Special Education/Program Options Available X X
LRE: Education with Nondisabled/Removal Only When Aids/Services Standard Met X X
LRE: Nonacademic & Extracurricular X X
LRE: Placement Based on IEP X X
LRE: Continuum Available to Extent Necessary X X
IEPs: Content X C
IEPs: Meetings X C
General Supervision: Review and Approval of LEA Applications X C
General Supervision: State Monitoring: Effective Method for Identifying Deficiencies X C
General Supervision: State Monitoring: Correction of Deficiencies X X
Procedural Safeguards: Hearing Decisions Within 45 Days X X
Procedural Safeguards: Content of Notice X C
Procedural Safeguards: Establishment of Procedural Safeguards X C

(c) New York
Reports from 1983, 1990, 1994, and a follow-up report from 1996 were analyzed for New York. As displayed in the following table and as qualified by the limitations affecting this study,[198o] in its most recent comprehensive monitoring report (8/16/94), New York came into compliance with none of the 15 requirements (0%) with which it had been previously noncompliant. Five of these requirements had been noncompliant for more than 10 years, and 10 remained noncompliant for more than four years. Of the 11 requirements with which the state was found noncompliant in the follow-up report (9/10/96), two had been noncompliant for more than 12 years, three for six years, and six for two years.

Table 17: Noncompliance Over Time in New York
Requirement 12/14/83 10/17/90 8/16/94 9/10/96*
FAPE: ESY X X X NI
FAPE: Provision of Special Education/Program Options Available NI NI X X
LRE: Education with Nondisabled/Removal Only When Aids/Services Standard Met X X X X
LRE: Nonacademic & Extracurricular NI X X X
LRE: Continuum Available to Extent Necessary NI X X X
IEPs: Content X X X NI
IEPs: Meetings NI X X NI
Transition: Notice NI NI X X
Transition: Statement of Needed Services NI NI X X
Transition: Meeting Participants NI NI X X
General Supervision: Incarcerated Students NI X X NI
General Supervision: Review and Approval of LEA Applications NI X X NI
General Supervision: Complaint Management: Resolved Within 60 Days X NI X X
General Supervision: State Monitoring: Method to Determine Compliance NI X X NI
General Supervision: State Monitoring: Effective Method for Identifying Deficiencies NI X X NI
General Supervision: State Monitoring: Correction of Deficiencies NI X X NI
Procedural Safeguards: Hearing Decisions Within 45 Days NI NI X X
Procedural Safeguards: Content of Notice NI X X X
Procedural Safeguards: Prior Notice/Parent Consent X NI X NI
Procedural Safeguards: Establishment of Procedural Safeguards NI X X NI
Protection in Evaluation NI NI X X**

*Follow-up Report
**Report notes significant improvement

(d) Oregon
Reports from 1988, 1993, and 1998 were analyzed for Oregon. As displayed in the following table and as qualified by the limitations affecting this study, Oregon came into compliance with six of 10 requirements (60%) over time. Of the four that remained noncompliant, two had been noncompliant for more than nine years, and two for more than four years.

Table 18: Noncompliance Over Time in Oregon
Requirement 7/5/88 11/15/93 1/8/98
FAPE: ESY NI X X
FAPE: Related Services NI X X
LRE X X C
General Supervision: Review and Approval of LEA Applications X X C
General Supervision: Complaint Management: Resolved Within 60 Days NI X C
General Supervision: Complaint Management: Resolve Any Complaint X NI C
General Supervision: State Monitoring: Effective Method for Identifying Deficiencies X XI X
General Supervision: State Monitoring: Correction of Deficiencies X XI X
Procedural Safeguards: Hearing Decisions Within 45 Days NI XI C
Protection in Evaluation NI XI C

(e) Texas
Reports from 1987, 1993, and 1997 were examined for Texas. As displayed in the following table, and as qualified by the limitations affecting this study, Texas came into compliance with only two of nine requirements (22%) over time. Of the seven which remained noncompliant, six remained noncompliant for more than 10 years, and one for more than four years.

Table 19: Noncompliance Over Time in Texas
Requirement 3/11/87 2/26/93 9/16/97
FAPE: Related Services NI X X
LRE: Education with Nondisabled/Removal Only When Aids/Services Standard Met X X X
LRE: Nonacademic & Extracurricular X X X
LRE: Placement Based on IEP X X X
LRE: Continuum Available to Extent Necessary X X X
General Supervision: Review and Approval of LEA Applications X X C
General Supervision: State Monitoring: Effective Method for Identifying Deficiencies X NI X
General Supervision: State Monitoring: Correction of Deficiencies X X X
Procedural Safeguards X X C

(f) Vermont
Reports for 1989, 1993, and 1996 were analyzed for Vermont. As displayed in the following table and as qualified by the limitations affecting this study, Vermont came into compliance with three of eight requirements (37.5%) over time. Of the five that remained noncompliant, one remained noncompliant for seven years, and four for more than two years.

Table 20: Noncompliance Over Time in Vermont
Requirement 2/24/89 9/17/93 2/8/96
FAPE: Related Services NI X X
FAPE: Provision of Special Education/Program Options Available NI X X
IEPs: Content X X X
General Supervision: Incarcerated Students NI X X
General Supervision: Review and Approval of LEA Applications X X C
General Supervision: Complaint Management NI X C
General Supervision: State Monitoring: Correction of Deficiencies NI X X
Protection in Evaluation NI X C

c. Findings and Recommendations

Finding # III B.10
Some significant state noncompliance areas have changed over time.
At the start of the federal monitoring process, large numbers of children with disabilities were routinely and inappropriately placed in separate educational settings in many states. Recent findings have shown that while such routine inappropriate placements have decreased in many states, a lack of adequate supports to children placed in regular classrooms was still prevalent.

Finding # III B.11
States frequently failed to ensure compliance with the same requirement for years and for several rounds of monitoring.
Looking at the three most recent monitoring reports (ranging from 1983-1998) for each of six states, they came into compliance as a group with only 18 of 66 noncompliant requirements (27%) identified in the first and/or second of the three monitoring reports. For 48 (73%) of the 66 noncompliant requirements found, either noncompliance was found again or no compliance finding was reported at all in the third monitoring report.
Of the 18 requirements with which states came into compliance, 10 (56%) had to do with the state's own administrative functioning (five-review and approval of LEA applications; three-complaint management; one-hearing decisions within time lines; and one-effectiveness of the monitoring system at identifying noncompliance).

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

Finding # III B.12
The federal IDEA enforcement process has not provided clear and certain consequences for failures to correct noncompliance that would motivate the states toward compliance.
SEAs cannot be motivated to garner the will and the resources to come into compliance when the record shows that sanctions rarely occur.

Recommendation # III B.12A
The Department of Education's approach to remedying state noncompliance should link noncompliance findings with (1) measurable improvement objectives to be met within a defined time frame, and (2) a range of specific enforcement sanctions that will be incurred for failures to meet each of the improvement objectives within the specified time frames.

Recommendation # III B.12B
The Department of Education, the Department of Justice, and the Department of the Interior, with input from students with disabilities, their parents, and other stakeholders, should develop a broad range of sanctions linked to the failure to correct noncompliance within the time frames agreed upon in the corrective action plans.
A wider range of options is needed to allow more flexibility and consistency in the enforcement of IDEA. These options should clearly articulate the sanctions available with examples of circumstances in which each would appropriately be applied.
The following section briefly discusses the monitoring process as it relates to the issues of under-served populations.

7. OSEP Initiatives to Address Marginalization Issues

OSEP had taken several initiatives over the past decade to address noncompliance areas that particularly affect youth with disabilities who, because they are members of minority communities, living in state institutions, or served by state programs, have often been marginalized. In response to consumer complaints and research about the unavailability of services for eligible youth with disabilities in adult and juvenile correctional facilities, OSEP had collected data from SEAs to determine the extent to which states were exercising their general supervisory responsibility for ensuring the provision of special education and related services. When appropriate, OSEP also had conducted on-site visits to correctional facilities as part of its monitoring reviews.[198p] OSEP reported compliance improvements in this area, although no data were provided to assess the extent of improvement.

OSEP has also conducted monitoring reviews of the Bureau of Indian Affairs (BIA), where BIA functions as the SEA for schools located on Native American reservations, and has worked with BIA staff in providing training to OSEP monitoring staff regarding American Indian culture. During the most recent (1998-99) monitoring review of the BIA, OSEP visited reservations and interviewed parents and advocates in Arizona, South Dakota, North Dakota, Utah, and New Mexico. OSEP has worked closely with groups appointed by BIA as part of the monitoring review process, including the newly created special advisory board.[198q]

The Office for Civil Rights (OCR) has also worked in collaboration with OSEP and independently to address inappropriate placement of minority students. Since 1994, OCR has identified this issue as a high priority item in DoED's enforcement program. From October 1993 through July 1999, OCR has addressed 413 cases involving inappropriate placements of minority students in special education,[198r] including 162 complaint investigations and 251 compliance reviews, some of which were statewide or citywide.[198s] OCR had undertaken these cases based on its own concerns about possible noncompliance and believed significant resolutions have been achieved, "which provided for positive change for hundreds of thousands of students."[198t]

Resolutions cited as examples included a strategy developed jointly with OSEP and the Mississippi Department of Education to address inappropriate placement of minority students and a Memorandum of Understanding (MOU) entered into by OCR and the Board of Education of the City of New York and co-signed by OSEP to address inappropriate referrals and placement of minority students in special education. OCR was monitoring these agreements, and evaluating how successfully the various measures had been implemented so as to increase the effectiveness of its enforcement efforts.[198u] No data demonstrating improved compliance based on measurable indicators were provided for either of these states and may not yet have been available.

8. Perspectives on the Impact of Federal Compliance Monitoring

As part of our research, individuals who had been involved directly and indirectly with federal compliance monitoring at the state and local level were consulted. This section presents views on federal compliance monitoring from two different organizational vantage points.

a. The Consortium of Citizens with Disabilities
The Consortium of Citizens with Disabilities (CCD) is a coalition made up of more than a hundred national consumer, advocacy, provider, and professional organizations working in Washington, DC, on behalf of people with disabilities. For this study, NCD met with members of the Civil Rights Task Force to gain their perspectives on monitoring and enforcement of IDEA. They made several key points:
  • While the federal role is critical, it is only part of the enforcement scheme.

  •  
  • Parents have been and still are the main enforcement vehicle for IDEA; they carry too much of the burden.

  •  
  • Protection and advocacy systems across the country and private litigation are crucial aspects of the overall enforcement scheme of the law.

  •  
  • Monitoring reports have been useful, for the most part; however, all states still fail to ensure compliance with the law after more than 20 years of monitoring and enforcement.

  •  
  • With the enactment of IDEA '97, the need for outreach training and technical assistance surpassed the considerable resources OSEP dedicated to meeting it.

  •  
  • OSEP should use the clarified enforcement authorities (partial withholding of funds and referral to the Department of Justice) in IDEA '97.
b. The National Association of State Directors of Special Education
The National Association of State Directors of Special Education (NASDSE) is made up of those individuals responsible for ensuring compliance with IDEA in their states. NASDSE generally believes that compliance monitoring has absorbed considerable resources while producing limited results. They noted,
"Legal compliance has absorbed the resources and time of professionals, hampering substantive efforts to improve programs. Compliance monitoring systems address little more than minimal process requirements and have had limited impact on educational quality. The need for transition from a system that focuses on the process of educating students to one that focuses on performance and results has been clearly recognized."[199]
NASDSE asserts that compliance monitoring "has usurped the entire function of accountability, thereby becoming a tyrant."[200] 

In an interview for this study, Martha Fields, Executive Director of NASDSE, noted that the tremendous amount of resources that have gone into monitoring has produced little. She noted that monitoring can only do so much and that, in her view, it had been maximized as a strategy for improvement. She held that monitoring represents the "IRS approach" and it runs counter to reform and improvement. Monitoring and the issuance of the reports, she suggested, would be more useful if they were done in the context of everything else that is going on in the state and if they were considered in relation to other matters/developments in the state, such as education reform. The categories of monitoring problems over the years have been consistent, she noted; however, the degree of the problems has lessened. She cited LRE as an example.

States know that federal monitoring is not going away, according to Fields. However, the states would like to see it approached differently. Fields noted that states found the implementation visits recently conducted by OSEP, intended to provide states with information about the 1997 IDEA amendments, to be beneficial. She also noted that states felt that they were working in partnership with OSEP to correct problems.

NASDSE would like to see the monitoring process driven by data. For example, the new law includes numerous new data collection requirements. If states look carefully at their data on achievement, dropout rates, and graduation rates and monitor those data over time, they will be in a strong position to identify problems and make changes. They could set realistic benchmarks and monitor their progress toward them. Some states, such as New York, are moving in that direction, according to Fields. It is important to be vigilant about the results--graduation rates, participation in post-secondary education rates, and employment rates--that are produced for students with disabilities, she says. There is some research to indicate that certain inputs make a difference in the kind of results achieved. For example, the better the teacher is trained, the better the results for the student. We need to be thinking about these inputs while keeping the spotlight on results, she noted.

Fields held that OSEP needs an enforcement philosophy and a strategy. Data would help to provide accountability for monitoring and enforcement. Federal enforcement of IDEA should involve withholding of funds, but it must be tied to a specific deficiency. For example, a certain percentage of funds could be withheld that was comparable to the nature of the infraction, but the nature of the infraction must be well documented.[201]

c. Findings and Recommendations
The findings and recommendations below capture themes from the dialogues described in this section.

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

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

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

Recommendation # III B.14
The Department of Education should maintain a priority on working with the states to improve accountability for implementing IDEA through effective data collection and analysis.
OSEP should continue working with states to improve their compliance monitoring and enforcement capabilities through data collection related to key performance indicators and regular, thorough, and ongoing analysis of the data. Without these activities, the extent and nature of reported compliance problems cannot adequately be understood or corrected. Among the reported problems that require continuous monitoring are the provision of FAPE and related educational services to eligible youth with disabilities in state and local detention and correctional systems as well as disproportionate representation of minority students with disabilities in separate educational settings and in the state child welfare and juvenile justice systems.

C. Oversight: Complaint Handling
As noted earlier in this report, there is no federal complaint mechanism for IDEA analogous to that for other civil rights laws. Other civil rights laws, including the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, are primarily enforced by complaint investigations. The complaint mechanisms for these other civil rights laws require the individual who believes he or she has experienced discrimination to file a complaint with the federal agency that is responsible for enforcing the law; e.g., with the Equal Employment Opportunity Commission if it is a potential violation of the employment provisions (Title I) of the ADA. The designated enforcement agency processes the complaint and assists the complainant in resolving it.

The complaint mechanism for IDEA rests at the state level. Every state is required to have a mechanism for parents to file complaints and a process for resolving them. The Department of Education, however, does receive complaints from parents, herein called general complaints, which it refers back to the states. Prior to 1999, the Secretarial Review process enabled a parent to appeal to the Secretary after exhausting the state complaint process. However, based on the recommendations of an Inspector General's report (discussed below in subsection 2), the Secretarial Review process was eliminated in the new regulation.

In addition to these two federal complaint processes, the OCR in the Department of Education receives and processes education complaints under Section 504 and under Title II of ADA. These OCR complaints appear to also address IDEA issues. These three complaint processes are considered in this section of the report.

1. General Complaints About IDEA Received by OSEP
Until 1999, complaints received by the Office of Special Education were considered in two categories: general complaints and Secretarial Review complaints. The general complaints came from someone in a state, most frequently a parent. Because IDEA did not provide a complaint process at the federal level, OSEP referred these complaints back to the states for processing and notified the complainant. OSEP also may have contacted the complainant to explain the options available to him or her, if it was clear that the complainant did not understand requirements of the law. Copies of the complaints were provided to the leaders of the monitoring teams for the state involved.[202]

During 1995, OSEP received 288 general complaints; during 1996, 348 such complaints; and during 1997, 377 such complaints.[203] California was the subject of the most complaints of any state or territory for a year: 58 complaints in 1997. Some states had no complaints filed about them.

For this study, a sample of data about the complaints was requested, in order to analyze the issues they raised. OSEP provided data on complaints from California, Illinois, New York, and Texas. Unfortunately, the coding system for the complaints did not allow for issue analysis. Complaints were coded with general terms such as "child complaint" and "special education compliance complaint." It appeared that any issue analysis would require reading each complaint, which was beyond the scope of this study. The 24 New York complaints for 1996 were examined to determine the total processing time. Of the 24, six took one month or less to close; 10 took one to five months; three took five to six months; and five did not include enough information to determine the time line. Considering that OSEP's procedure was to refer the complaint back to the state for processing, it was noteworthy that more than half of the complaints took over a month for such referral.

2. Secretarial Review of IDEA Complaints
In March 1999, the Department of Education issued final IDEA '97 regulations eliminating the Secretarial Review process. This elimination was recommended by an Inspector General's report described below. Up until March 1999, the following process was used for Secretarial Review of IDEA complaints: (1) Individuals who were dissatisfied with a state's final decision in regard to a state complaint could complain to the federal Department of Education. These complaints were referred to as "Secretarial Review." (2) To initiate a Secretarial Review request, a complainant had to send OSEP a copy of the SEA's final decision on the complaint; a copy of the complaint filed with the SEA that resulted in the final decision; and a letter outlining the specific aspect of the decision that the requester challenged, the basis for the challenge, and the relief sought. (3) OSEP and OGC work collaboratively to determine whether to grant the review, remand the request back to the state, or deny the review.

In 1995, OSEP received 70 requests for Secretarial Review; in 1996, they received 103 requests; and in 1997, 51 requests. In August 1997, the Inspector General of the U.S. Department of Education issued an audit report titled "Secretarial Review Process In Need of Change."[204] The report concluded that the Secretarial Review process should be eliminated for the following reasons. First, few complaints addressed systemic issues. During the period of March 17, 1995, to February 11, 1997, only two of 15 complaints "granted" Secretarial Review requests addressed systemic issues. Most were individual complaints seeking individual remedies, and the Inspector General felt that DoED's energies are better spent on systemic compliance, in activities such as monitoring.

Second, the process was seen as providing minimal benefits to the complainants. DoED granted Secretarial Review to a small percentage of requests. In a period of almost two years, determinations providing remedies to the complainants occurred in only 12 cases. In five of the 12 cases, the child with a disability did not actually receive any benefit because she or he was no longer enrolled in the school that was the subject of the complaint.

Third, requests for Secretarial Reviews were not processed in a timely fashion, according to the report. It routinely took DoED over a year to process a request. Of the nine "granted" requests in 1995, the letter of determination was issued in less than one year in only two cases.

Finally, DoED was seen as being in a weak position to decide cases and to decide them in a timely fashion. Because DoED was totally dependent upon the clarity and accuracy of written information provided by the participants, officials had to make numerous inquiries of participants. When participants did not agree on the events, DoED usually denied the request.

Although a data sample from Secretarial Review requests was sought in order to analyze the issues raised, not enough detail was retained in the record-keeping system to draw any conclusions about the issues.

The Inspector General's audit, however, which examined the Secretarial Review from a process perspective, offered the following recommendations: (1) OSERS should work with state education officials, advocacy groups, and others to identify best practices from the state complaint process and develop guidelines to assist states in improving state complaint processes. Performance measures should be developed to evaluate the effectiveness of the state complaint processes. (2) OSEP's monitoring process should be enhanced with a particular emphasis on state complaint processes. (3) Over time, OSEP should evaluate the effectiveness of the reforms states have instituted for their complaint processes, identify states with poor complaint processes, and ensure corrective action. (4) OSERS should take steps to eliminate the Secretarial Review process.

In the proposed regulations issued on October 22, 1997, OSERS eliminated the provision that establishes the Secretarial Review process.[205] In the discussion prior to the regulations, OSERS cited the Inspector General's recommendation and notes that the removal of the Secretarial Review provision "will allow the Department to spend more of its time and attention on evaluating states' systems for ensuring compliance with program requirements, which will have benefit for all parties interested in special education."[206] OSEP reports that at the present time, they still lack the necessary resources to conduct such evaluations.[207]

The final IDEA regulations, issued March 12, 1999, delete the provision for Secretarial Review. DoED notes that it implements the Inspector General's recommendations in the new regulations by adding provisions that address state complaint procedures.[208] Those provisions include a requirement that states notify parents of the state complaint system and how to use it as a part of the procedural safeguards notice.[209] In responding to the recommendations of the Inspector General's report, advocacy groups raised a concern that the elimination of the Secretarial Review process would leave parents of disabled children no options to appeal final SEA decisions other than the costly due process system or the courts. They recommended that the Secretarial Review process not be eliminated until another system was in its place. They cited the poor condition of many state complaint processes as a major concern. The loss of a federal appeals process to the state complaint process was problematic for them.[210]

3. Section 504/ADA Complaints Received by OCR/DoED
While the Department of Education Office for Civil Rights has no direct responsibility for monitoring IDEA or investigating IDEA complaints, it does have responsibility for enforcing Section 504 and Title II of ADA as they relate to education. OCR appears to be receiving a large number of complaints that may also be complaints under IDEA, and processing a significant number of complaints alleging multiple violations, sometimes under more than one law. OCR must respond to any allegations addressing Section 504 or ADA provisions, while allegations alleging violations under IDEA are forwarded to OSEP, which in turn sends them back to the states for processing. If a complaint contains an allegation under IDEA and either an ADA or Section 504 allegation, OCR's resolution probably will address the IDEA allegation. From the data provided by OCR, it could not be determined how many of the complaints contained IDEA allegations or how these were handled.

From early 1993 through May 4, 1998, OCR received 5,684 complaints under 504 or ADA, or both, in which the respondent was a primary or secondary school and which could also have been complaints under IDEA. Appendix I provides three tables addressing the number of IDEA-relevant complaints received during this period and discusses in detail the issues raised by these complaints, the types of disabilities experienced by those making the complaints, and the general resolution of the complaints. The 5,684 complaints against elementary and secondary schools represented 72.3 percent of all the individual complaints OCR received under ADA Title II.

These complaints cited issues that may have been IDEA issues. The vagueness of the complaint categories made it impossible to determine definitively how many complaints actually contained allegations of violations under IDEA. For example, almost 42 percent of the issues were related to "admission to education program." Some of these complaints could have been related to IDEA students not being admitted to the program they believed most appropriate for them. Almost 20 percent of the complaints were classified as "program service." These could have been situations where students with disabilities who were served under IDEA were not receiving the services they need. Twenty-two percent of the complaints were classified as "student/beneficiary treatments." Some complaints under this category may have related to IDEA students not receiving needed services.

The largest disability category among the 5,684 complaints was learning disability, at almost 19 percent. This is also the largest disability category of students served under IDEA. Children with hearing problems, mental illness, mental retardation, orthopedic impairments, attention deficit disorder, and speech impairments are all complainants under ADA/504. Children with these disabilities are also served under IDEA.

Historically, many have believed that Title II ADA/504 K-12 education-related complaints primarily address physical access to public and private schools; for example, ensuring that schools have ramps so people using wheelchairs can use them to enter the school. These data indicated that almost half of those filing Title II ADA/504 K-12 education-related complaints had cognitive or mental impairments, including learning disabilities, mental illness, mental retardation, attention deficit disorder, and attention deficit and hyperactivity disorder.

It is also interesting to note that complaints from students of higher education age appear to be a relatively small proportion of complaints that the OCR in the Department of Education receives. They could account for no more than 27 percent of the total, because about 73 percent are related to elementary and secondary schools.

4. Findings and Recommendations

Finding # III C.1
There is no federal complaint process for IDEA to complement and expand the scope of complaint-handling systems at the state level.
There is a need for a federal complaint handling system to provide students with disabilities and their parents a vehicle for filing and resolving complaints alleging widespread or systemic violations occurring at the SEA or LEA levels. Because state complaint handling systems are largely geared to addressing individual complaints, such a federal process would help to close an existing gap in the enforcement infrastructure.

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

Recommendation # III C.1B
Congress should amend IDEA to create a complaint handling process at the federal level to address systemic violations occurring in SEAs or LEAs.
Congress should designate the Department of Justice to administer the process and allocate adequate funding to enable that Department to take on this new role. This new federal complaint process should be designed to complement, not supplant, state-level complaint-handling and due process procedures. The federal process should be simple to use and easy to understand by parents and students. The Department of Justice should develop and disseminate explicit criteria for the types of complaints alleging systemic violations it will prioritize given its limited resources.

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

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

Recommendation # III C.2
The Secretary of Education should require states to submit annually a summary analysis of all state complaints alleging violations of IDEA, including a listing of complaints received by category and by LEA, with a brief description of the allegations, opening and closing dates, and type of resolution.
Under IDEA, the Secretary of Education may require the states to submit any data deemed necessary to administer the law.[211] These analyses should inform OSEP's monitoring, compliance and enforcement activities, as well as OSEP's technical assistance efforts and those of its technical assistance grantees. This information should be shared with OCR and the Department of Justice. It should be widely disseminated to stakeholders in the state.

Finding # III C.3
State complaint systems under IDEA need improvement.
According to the Inspector General's report, state complaint systems should be improved and more intensely monitored by OSEP. While the IDEA '97 regulations intended to improve state complaint systems, OSEP has lacked the necessary resources to conduct such evaluations.

Recommendation # III C.3
OSERS should work intensively with states to improve state complaint systems.
OSERS should identify model practices in states and proactively provide technical assistance for improvement of systems in states to include development of a statewide mechanism for tracking all complaints and capturing basic information about each complaint such as nature of complaint, time line for resolution, outcome, and satisfaction of complainant with outcome. OSEP should monitor the adequacy of state complaint systems to produce accurate accounting of all complaints filed and data sufficient to analyze the effectiveness of complaint handling throughout the state.

The next section examines the range of enforcement actions available under IDEA and their application.

D. Enforcement

1. Restrictions on Grant Awards: High-Risk Status with Special Conditions and Compliance Agreements
In situations where states have demonstrated persistent failure to ensure compliance with IDEA, DoED may award their funds under "high-risk status with special conditions,"[212] or in accordance with compliance agreements.[213] "High-risk status with special conditions" is used when OSEP has determined that compliance can be achieved within a relatively short period of time. 

Compliance agreements are used when OSEP has determined that it is likely to take a relatively long period of time for the state or entity to come into compliance.[214] According to DoED, as Table 21 below notes, one or both actions have been taken with five states/entities in relation to IDEA Part B: Puerto Rico, California, Virgin Islands, Pennsylvania, and the District of Columbia.[215] After the major research for this report was completed, DoED awarded funds in 1999 to New Jersey and again to Pennsylvania under special conditions. Funds have not yet been awarded to the Virgin Islands, and a compliance agreement has not yet been signed.[216]

Table 21: High-Risk Grantees/Special Conditions/Compliance Agreements for Part B State Grant IDEA Awards Determined by OSEP[217]
Puerto Rico Compliance Agreement under Part B for FY '93-'96; Special Conditions under Part B for FY '96-FY '98 for lack of compliance in evaluation, re-evaluation, and related services.
California Special Conditions in FY '97 and FY '98 regarding services to students in adult correctional facilities.
Virgin Islands Special Conditions on Part B beginning in FY '98 for related services, personnel, re-evaluations, least restrictive environment, transition statements in IEPs, length of school day; Compliance Agreement negotiated and planned to become effective in late 1999 or in 2000.
Pennsylvania Special Conditions on Part B award for FY '98 and FY '99 for failure to take enforcement steps against LEAs that are out of compliance.
District of Columbia Compliance Agreement under Part B for FY '97, FY '98 and FY '99 for lack of compliance in related services, timely evaluations and re-evaluations, and hearing time lines.
New Jersey Special Conditions for FY '99 for continuing lack of compliance in some areas under Part B; terms of special conditions incorporate New Jersey's own corrective action plan.

In a 1991 monitoring report, OSEP found that Puerto Rico failed to ensure compliance with IDEA in a number of significant ways. There were lengthy, widespread delays in initial evaluations, re-evaluations, and the provision of needed related services. Given the magnitude of these delays and the fundamental infrastructure and legislative changes that would be needed to correct them, it was determined that the Puerto Rico Department of Education (PRDE) would need more than a year to complete correction. Following a public hearing, OSEP and the PRDE entered into a compliance agreement that set forth specific requirements for incremental correction and reporting. During the three-year term of the agreement, PRDE corrected the delays in initial evaluations and many re-evaluations and made substantial progress in correcting the delays in related services. In 1996, the compliance agreement was concluded; however, full compliance with re-evaluation requirements and related services was still lacking. At that point OSEP designated Puerto Rico as a high-risk grantee and special conditions were applied to the Part B grant until the corrections were completed. The special conditions involved implementing the corrective action plan, collection of data, and regular reporting on progress to OSEP. In the spring of 1998, OSEP determined that PRDE was no longer a high-risk grantee. It is interesting to note that from 1993-1996, during the period that PRDE was under a compliance agreement, they also had a fully approved state plan (see Table 2 and Part IV above).

The 1993 monitoring report found that the Virgin Islands Department of Education (VIDE) had failed to provide (1) needed related services set forth on IEPs, (2) personnel in needed service areas, and (3) timely triennial re-evaluations. In the 1998 monitoring report, OSEP found that VIDE had not corrected these areas of noncompliance. In addition, OSEP held that VIDE had not ensured that (1) students with disabilities were served in the least restrictive environment, (2) that the IEPs for students 16 years of age or older included transition services, and (3) that students with disabilities were meeting SEA standards regarding length of school day. In addition, OCR determined that VIDE is not in full compliance with Section 504 of the Rehabilitation Act or Title II of ADA in relation to a free appropriate public education and accessibility of public education programs and buildings. The FY '98 award designated VIDE a high-risk grantee with special conditions and included the steps that VIDE was required to take to ensure that it fully complies with Part B. Monthly reports detailing progress are required and grants are made on a quarterly installment basis provided VIDE has complied substantially with the relevant conditions.[218] OSEP is currently developing a compliance agreement with the Virgin Islands.

In a 1998 follow-up monitoring visit to Pennsylvania, OSEP found that the Pennsylvania Department of Education (PDE) had not taken enforcement action against a school district although the district had failed to make timely corrective action to address deficiencies identified by PDE and OSEP in previous monitoring reviews. OSEP imposed special conditions on Pennsylvania's FY '98 Part B grant because of this failure to exercise general supervision authority and utilize enforcement to secure compliance with IDEA. The special conditions require Pennsylvania to submit quarterly reports to OSEP to document (1) the steps PDE has taken to ensure that the identified LEA fully complies with Part B, including that PDE has taken enforcement actions against the LEA where the LEA has failed to complete corrective actions in a timely manner, and (2) the steps PDE has taken to ensure that corrective action is taken by other public agencies for which PDE identifies deficiencies in meeting Part B requirements, including appropriate enforcement actions against those agencies.[219]

The 1994 monitoring report found the District of Columbia Public Schools (DCPS) failed to ensure compliance in related services, least restrictive environment, evaluations, and due process time lines. A 1995 follow-up report determined that significant problems remained with regard to least restrictive environment, related services, and evaluations every three years. A compliance agreement was drawn up between OSEP and DCPS for three years so that DCPS could come into compliance with Part B requirements. The agreement includes a schedule for reducing the number of children with disabilities who have not received evaluations, re-evaluations, and related services to which they are entitled; reducing the number of hearing decisions that have not been issued within the 45-day time line; and reducing the number of decisions that have not been implemented. DCPS must follow certain data collection and reporting procedures. As of March 1999, DCPS has met few goals set out in the compliance agreement.[220] At the time research for this report was completed, DoED had not yet taken any stronger enforcement action against DCPS (e,g., withholding of federal funding or referral to the Department of Justice).

2. Withholding of Funds
If a state persists in noncompliance, DoED may exercise its authority to withhold funding from the state. When the Secretary determines that "there has been a failure by the state to comply substantially with any provision of this part [Part B]," the Secretary shall withhold further payments to the state.[221] 

IDEA '97 states that the Secretary shall not make a final determination of ineligibility until she or he provides a state with reasonable notice and an opportunity for a hearing. If the SEA is dissatisfied with the Secretary's final action after a proceeding, the agency may file for a review with the U.S. Court of Appeals for the circuit in which the state is located. A copy of the petition must be transmitted to the Secretary, who must file the record of the proceedings on which the actions were based. The Court may remand the case back to the Secretary for further evidence, and the Secretary may make new or modified findings of fact that may modify the previous action. The Court of Appeals has the authority to affirm the Secretary's action or to set it aside, in whole or in part. The Supreme Court may review the court's judgment.[222]

The 1997 IDEA amendments clarified the withholding of funds provision in the law. Prior to the amendments, the law indicated that the Secretary could "withhold any further payments" from noncompliant states. The amendments included language specifying that the Secretary could withhold funds "in whole or in part" from the state.[223] The law further clarified that the Secretary may determine that the withholding be limited to programs or projects or portions of those programs or projects affected by the failure. The Secretary may further determine that the SEA shall not make further payments to specific LEAs or state agencies affected by the failure. Payments to states may be withheld in whole or in part until the Secretary is satisfied that there is no longer any failure to comply with the provisions of Part B. No action has yet been taken utilizing this new withholding provision, nor has DoED provided any guidance or further articulation as to how partial withholding will be implemented.

To date, a determination of noncompliance resulting in a decision to withhold funding has occurred only once, with the state of Virginia. As a result of a complaint and follow-up correspondence with the state, OSEP became aware in 1993 that the Virginia Department of Education (VADOE) was not requiring LEAs to provide educational services to children with disabilities who had been suspended long-term or expelled from school. OSEP asked Virginia to revise its regulations related to the provision of services to students who were on long-term suspension or expulsion in order to receive funds for FY '94. Virginia refused to change its practice to correct the problem, and DoED proposed disapproval of the 1993-95 state plan and found VADOE ineligible for FY '94 funding. DoED offered VADOE an administrative hearing on the issue. VADOE, however, sought emergency relief in the Fourth Circuit, which in April 1994 ordered DoED to release FY '94 funding to VADOE and provide VADOE an administrative hearing before withholding future funds. The administrative hearing was conducted in October 1994, and in April 1995 the hearing officer found that IDEA requires the provision of a free appropriate public education to all children with disabilities, including those on long-term suspension or expulsion for behavior not related to their disabilities. That decision was upheld by the Secretary in July 1995 and affirmed by the Fourth Circuit in June 1996.

VADOE then sought a rehearing, and in February 1997, the Fourth Circuit reversed its prior position and held that IDEA, as then in effect, did not require the provision of educational services to children with disabilities who are suspended or expelled for behavior not related to their disabilities. The IDEA Amendments Act of 1997 addressed this issue by clarifying that the obligation to provide a free appropriate public education to all children with disabilities includes children with disabilities who have been suspended or expelled from school.[224]

3. Cease and Desist Order
Under the General Education Provisions Act, the Secretary may issue a complaint with a notice of hearing to a state describing the factual and legal basis for his or her belief that the state has failed to comply substantially with a requirement of the law.[225] The final agency action is a report and order of an Administrative Law Judge's (ALJ) requiring the state to cease and desist from the practice, policy, or procedure that resulted in the violation. DoED may enforce the final order by withholding any portion of the state's grant award or by certifying the facts to the Attorney General, who may bring an appropriate action for enforcement. The state may request judicial review of the final order by the appropriate U.S. Court of Appeals.[226]

The Department has never used this option to enforce IDEA.

4. Referral to the Department of Justice for Enforcement Action
The 1997 IDEA amendments clarified that the Department of Education could refer a state to the Department of Justice for enforcement action after determining that there has been a failure to substantially comply with any provision of IDEA, or "to comply with the terms of any agreement to achieve compliance with [IDEA] within the time line specified in the agreement." While some believe the Department of Education has always had this authority, it was explicitly included in IDEA for the first time in 1997. The regulations for IDEA '97 do not, however, provide criteria for determining when such a referral would be made. The Department of Education has never referred a state or entity to the Department of Justice for enforcement action due to noncompliance with IDEA.

5. The Politics of Enforcement
In at least two instances when the Department of Education took enforcement actions against states, it was met with political resistance (see letters in Appendix D). In the case of Virginia, when DoED withheld funds because the state failed to ensure compliance with IDEA, the Secretary received multiple letters from members of the Virginia Congressional delegation as well as a plea from the governor of Virginia to release the funds. In his letter, Governor Allen noted, "The President has expressed a desire to relieve the states of unnecessary and excessive federal mandates. We are heartened by that timely expression and look forward to your beneficial intervention in this matter."[227] A letter from the Virginia Congressional delegation noted, "Clearly, it is unfair to hold all children with special education needs in the Commonwealth hostage to a disagreement over policy interpretation."[228] Secretary Riley persisted with the enforcement actions and did not retreat.

When the Department of Education placed Pennsylvania on "high-risk" status, Secretary Riley received a letter from four members of the Pennsylvania Congressional delegation questioning his decision (see Appendix D). The September 2, 1998, letter, from Rep. Goodling, Rep. Gekas, Sen. Specter, and Sen. Santorum, notes that the members are "deeply concerned" over DoED's decision to impose sanctions on Pennsylvania. They state that it appears that DoED is moving toward threatening to deny the more than $139 million the state receives under Part B of IDEA. The members urge DoED to pursue "a more constructive approach to ensuring compliance with . . . IDEA." The letter goes on to question DoED's insistence that the Pennsylvania Department of Education deny funding to the Harrisburg School District. Such an action would only hurt children, they note. (DoED did not rescind its designation of Pennsylvania as a "high-risk" state with sanctions). Despite the fact that Secretary Riley did not retreat, such responses from politicians may have a chilling effect on future enforcement efforts. In addition, they may at least partially explain why so little enforcement has taken place in the past 25 years. That lack of effective implementation was so much at the heart of deliberations during the1997 IDEA reauthorization was ironic, given the resistance by members of Congress to the Virginia and Pennsylvania enforcement actions. Their public resistance indicated a lack of Congressional awareness about the pervasive and persistent noncompliance with IDEA across the country.

6. Findings and Recommendations

Finding # III D.1
The Department of Education has identified six enforcement actions it has taken against states for noncompliance with IDEA Part B, all within the past six years.
According to information provided by the Department of Education, only six enforcement actions have been taken under IDEA Part B since its enactment. Five of these enforcement actions were related to attaching special conditions to the grant award or developing compliance agreements. The other was an attempt to withhold funds from a state, which was overruled by the court. All have occurred since 1993.

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

Finding # III D.2
The Department of Education has withheld federal funds from a state because of noncompliance with Part B of IDEA only once in the past 25 years.
In 1994, DoED briefly withheld funds from the Commonwealth of Virginia due to a state policy that denied any services to special education students who were suspended or expelled from school. Although DoED lost its case against Virginia, IDEA was subsequently amended to clarify that the Virginia policy was illegal. The 1997 amendments to IDEA also explicitly gave DoED the authority to withhold a partial amounts of funds.

Recommendation # III D.2
The Department of Education and the Department of Justice, with input from students with disabilities, their parents, and other stakeholders, should develop a broad range of options for withholding partial funds from noncompliant states and the criteria (triggers) for when they will be used.
Consideration for how partial withholding of funds could be utilized might include the notion of withholding state administrative funds for a state that fails to ensure compliance with state monitoring requirements and utilizing those funds to hire an independent entity to conduct state monitoring. Again, withholding of funds should never be a surprise to anyone. Rather, it should be the predictable result of certain behavior.

Finding # III D.3
Political resistance to IDEA enforcement from Congressional delegations and state administrations of the noncompliant state may have a chilling effect on enforcement.
DoED enforcement actions in Pennsylvania and Virginia resulted in letters from members of Congress and the Governor of Virginia requesting that the Secretary rescind the actions. The Secretary did not rescind either action. In some instances, the members who wrote questioning and protesting the DoED's actions had key roles in overseeing DoED's funding or programs, particularly with respect to IDEA. Such political resistance may cause DoED to be hesitant in pursuing enforcement, which would impact future enforcement efforts.

Recommendation # III D.3A
The Department of Education should take the lead in educating both the Congress and state legislators about the failure of states to ensure compliance with IDEA and how this affects children with disabilities and their families.
The Department of Education should exercise its leadership as enforcer of IDEA to educate federal, state, and local legislators about the extent to which the law has not been fully implemented and the toll on children with disabilities, their families, and their communities. Specifically, DoED should brief the members of each state delegation before its planned monitoring visits to discuss the technical assistance resources available to states in correcting compliance problems, enforcement options, and the long-term consequences of persistent noncompliance for children with disabilities. The Department should urge legislators to take responsibility for helping their states achieve compliance.
The Department of Education should also be proactive in implementing a well-timed and coordinated communication strategy for each planned enforcement action it takes and in fostering dialogue about the issues. The strategy should include media outreach and briefings targeted to stakeholders and other interested parties, including federal, state, and local officials, parent groups, and others.

Recommendation # III D.3B
The Department of Education should post any letters it receives from members of Congress questioning enforcement actions related to IDEA on the DoED web site and distribute them to Parent Training and Information centers, Protection and Advocacy systems, and other legal advocacy organizations.
Such inquiries by members of Congress provide opportunities for parents and their advocates to educate Congress about IDEA noncompliance in their state and the toll it takes on their constituents.

Finding # III D.4A
The Department of Education has not yet provided policy guidance regarding criteria for referral to the Department of Justice, authorized by the 1997 amendments to IDEA.
While new regulations provide some information on the process of referral to the Department of Justice, they do not clarify the criteria for making such a referral.

Finding # III D.4B
The Department of Education has never referred a state to the Department of Justice for substantial noncompliance with IDEA.
Authority for the Department of Education to make such referrals was made explicit in the 1997 IDEA Reauthorization.

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

Part IV presents findings from the Department of Education's Annual Reports to Congress between 1978 and 1998 and analyzes these findings for a historical view of the implementation IDEA.

Go to Part IV, National Compliance Picture Over Time

Go to TOC, IDEA Compliance Report

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!

 

Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
About the Book

Wrightslaw: All About IEPs
About the Book

Wrightslaw: All About Tests and Assessments
About the Book

Surviving Due Process: Stephen Jeffers v. School Board
About the DVD Video

 

Copyright 1998-2014, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.

Contact Us | Press Mission l Our Awards l Privacy Policy l Disclaimer l Site Map

25% OFF Wrightslaw Products

Wrightslaw Summer Sale!


Now Shipping!

Wrightslaw: All About Tests and Assessments
About the Book

Check it out!

Wrightslaw Store

The Advocate's Store

Get Help!

Blog the Wrightslaw

Wrightslaw on Facebook

Find us on Facebook

Wrightslaw Books

Student Discounts

Military Discounts


Wrightslaw: All About IEPs

About the Book
To Order

Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
About the Book
To Order


About the Book

To Order


Surviving Due Process: Stephen Jeffers v. School Board

About the DVD Video
To Order


To Order


Wrightslaw: No Child Left Behind

About the Book
To Order

Wrightslaw Multimedia Training


Understanding Your Child's
Test Scores (1.5 hrs)

Understanding Your Child's Test Scores

Learn More
To Order
Retail Price: $
24.95
Wrightslaw Special: $14.95

Special Education Law & Advocacy Training
(6.5 hrs)


Wrightslaw WebEx Special Education Law & Training Program (6.5 hrs)


Learn More
To Order
Retail Price: $99.95
Wrightslaw Special: $49.95