Consolidated List of Findings and Recommendations
I. The Law, the Compliance/Enforcement Scheme, and the Context
Finding # I.1
LOSEP is responsible for IDEA compliance monitoring and enforcement consulting with several other offices within the Department of Education, as needed. Within OSEP, the close integration of enforcement responsibility with responsibilities for state grant administration, compliance monitoring, technical assistance, and program improvement can lead to conflicting internal objectives. There appears to be no process for assessing whether the current approach to internal collaboration has helped or hindered IDEA enforcement.
Recommendation # I.1
Finding # I.2
Recommendation # I.2
II. Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA
Finding # II.1A
Finding # II.1B
Recommendation # II.1A
Recommendation # II.1B
Finding # II.2
Recommendation # II.2A
Recommendation # II.2B
Recommendation # II.2C
III. Grant Administration, Compliance Monitoring, Complaint Handling, and Enforcement Functions
Finding # III A.1
Although no state is fully ensuring compliance with IDEA, states usually receive full funding every fiscal year. Once eligible for funding, a state receives regular increases, which are automatic under the formula. OSEPís findings of state noncompliance with IDEA requirements usually have no effect on that stateís eligibility for funding unless
(1) the stateís 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
Finding # III A.2
Recommendation # III A.2A
Recommendation # III A.2B
Finding # III B.1A
An analysis of the most recent federal monitoring report available for each state (from 1994-1998) indicated that no state had carried out its responsibilities to ensure compliance with all the requirements of Part B. While the degree of noncompliance with any given requirement (based on number and seriousness of infractions) varied among the states, many states had failed to ensure compliance with a significant number of requirements.
Of the seven areas analyzed, 24 percent, or 10 states, had failed to ensure compliance in five areas; 24 percent, or 10 states, had failed to ensure compliance in six areas; and 12 percent, or six states, had failed to ensure compliance in seven areas. Four percent, or two states, had failed to ensure compliance in only one area.
Finding # III B.1B
transition (88%, or 44 states);
free appropriate public education (80%, or 40 states);
procedural safeguards (78%, or 39 states);
and least restrictive environment (72%, or 36 states).
protection in evaluation (38%, or 19 states).
Congress should ask the General Accounting Office (GAO) to conduct a study of the extent to which SEAs and LEAs are ensuring that the requirements of IDEA in the areas of general supervision, transition, free appropriate public education, procedural safeguards, and least restrictive environment are being met.
In addition, the Department of Education should conduct regular independent special education audits (fiscal and program) initiated by the DoED Office of Inspector General (OIG).
The purpose of the audits would be to examine whether federal funds granted under IDEA Parts B and D (State Program Improvement Grants) have been and are being spent in compliance with IDEA requirements. These audits should be a supplement to OSEPís annual compliance monitoring visits, and the audit results should be in DoEDís annual report to Congress. To the extent that the DoED OIG lacks the subject matter expertise to conduct program audits under IDEA, the OIG should contract with independent entities having such expertise when a program audit is necessary.
Recommendation # III B.1B
While parents of children with disabilities and students and adults with disabilities participate in the federal monitoring process, they have no independent means for assessing the extent or quality of state compliance, for determining why state failure to ensure compliance persists, and for communicating these findings to the President and Congress. They need to be able to provide reliable and regular assessments of their stateís compliance with IDEA, as well as a realistic picture of the toll of noncompliance on children and families in their state, to federal and state leaders and to the public at large.
Finding # III B.2
OSEP staff indicated that a state was found non-compliant with a given requirement only if the failure to ensure compliance was "systemic," (i.e., observed by monitors "with some frequency"). For example, a finding of noncompliance could have meant that out of 10 schools monitored, anywhere from three to 10 had failed to ensure compliance with a given requirement. There was no established standard (quantitative or qualitative) by which OSEP made a determination that noncompliance was systemic.
Recommendation # III B.2A
Recommendation # III B.2B
Recommendation # III B.2C
Recommendation # III B.2D
Finding # III B.3
OSEP reported placing "a strong emphasis on those requirements most closely associated with positive results for students with disabilities," and appeared to monitor a stable core of requirements in every state. It also used information gathered during the pre-site process to help determine what to monitor.
Federal monitoring reports, however, did not display all the requirements monitored, nor did they consistently specify the requirements with which the state appeared to comply, based on the sample of districts, student files, interviews, and state policies and procedures, as well as state monitoring documents reviewed. In some cases, requirements with which the state appeared to comply were mentioned in report cover letters, and in other cases they were not. Therefore, it was not always possible to determine all the requirements monitored and the compliance status of each.
Recommendation # III B.3
Such reporting would have enabled a comparison between reports and over time.
It also would have enabled an understanding of where states were determined definitively to be in compliance, which might have offered opportunities for positive acknowledgment.
Finding # III B.4
In the experience of OSEP staff, observing students consumed a great deal of time and often did not yield enough conclusive data to make clear-cut compliance determinations. Many parents and advocates criticized the monitoring process, however, as one that focused too much on talking with education personnel and reading documentation. Their concern was that this approach did not provide an adequate measure of the extent to which students were being appropriately served.
Recommendation # III B.4A
Routinely including interviews with children from ethnically diverse backgrounds, their parents, and their service providers in the monitoring process would have provided a more grounded understanding of the statesí compliance picture.
Recommendation # III B.4B
Finding # III B.5
The historical monitoring data in these early reports were crucial to understanding what areas had remained chronically out of compliance and how states had progressed in improving compliance over time. In addition, an analysis of the historical data could have provided insight into the impact of corrective action plans on reducing noncompliance.
Recommendation # III B.5
A historical picture of each stateís compliance status will greatly inform OSEPís monitoring work and allow for examining trends over time. In addition, it will provide a sense of the persistence of certain problems in particular states.
Finding # III B.6
The federal monitoring reports examined from all fifty states showed that compliance with one important requirement appeared not to be monitored and compliance with another appeared to be under-monitored.
IDEA required states to have "[p]rocedures for adopting, if appropriate, promising practices, materials, and technology proven effective through research and demonstration."
There was no evidence in the texts of the monitoring reports reviewed that compliance with this requirement had ever been monitored.
SEAs are required to "ensure" that public agencies "ensure" that "[u]nless the IEP of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled."
In the fifty reports reviewed, OSEP had made findings of noncompliance with this requirement in two states North Dakota and Utah. Both reports were issued in 1994, the first year of reports reviewed. There was no evidence in the texts of the other monitoring reports reviewed that compliance with this requirement had been monitored.
Recommendation # III B.6
OSEP should develop a method for ensuring that requirements often overlooked in the monitoring process are monitored at regular intervals. The compliance status of states with non-core requirements or requirements rarely identified as problem areas during the pre-site visit (i.e., implementation of promising practices) should be monitored at regular intervals in every state.
Finding # III B.7
For reports issued between 1994 and 1998, the amount of time from the date the monitoring visit ended and the date of the final report was greater than 90 days for 45 states, greater than 180 days for 27 states, and greater than 365 days for 12 states. The Departmentís present policy is to issue the report approximately five to six months (150-180 days) after the on-site visit, but recognizes the need to get the reports out more quickly. OSEP has requested additional staff, and is working on a new strategy to reduce lag time before the release of each monitoring report.
Recommendation # III B.7
OSEP is requesting resources and working on a new strategy to issue the monitoring reports in more timely fashion. An issuance date no later than two months following the end of the end of the monitoring visit should be established.
Finding # III B. 8
[NOTE FROM WRIGHTSLAW: To find out if your state's monitoring report is available, follow the link below:]
The most recent reports (or the reportís executive summary) from 27 states have been made available on the OSEP web site. All new reports will be placed there in the future. Placing the reports on the web site will allow timely access for a broad range of stakeholders and a greater awareness of the monitoring issues in each state.
Finding # III B.9
Recommendation # III B.9
Finding # III B.10
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
Looking at the three most recent monitoring reports (ranging from 1983 to 1998) for each of six states, as a group they came into compliance with only 18 of 66 non-compliant requirements (27%) identified in the first or second of the three monitoring reports. For 48 (73%) of the 66 noncompliant requirements found, either noncompliance was found again or no compliance finding was reported at all in the third monitoring report.
Of the 18 requirements with which states came into compliance, 10 (56%) had to do with the stateís 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
Finding # III B.12
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
(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
A wider range of options is needed to allow more flexibility and consistency in the enforcement of IDEA. These options should clearly articulate the sanctions available with examples of circumstances in which each would appropriately be applied.
Finding # III B.13
Recommendation # III B.13
Finding # III B.14
Recommendation # III B.14
OSEP should continue working with states to improve their compliance monitoring and enforcement capabilities through data collection related to key performance indicators and regular, thorough, and ongoing analysis of the data. Without these activities, the extent and nature of reported compliance problems cannot adequately be understood or corrected. Among the reported problems that require continuous monitoring are the provision of FAPE and related educational services to eligible youth with disabilities in state and local detention and correctional systems, as well as the disproportionate representation of minority students with disabilities in separate educational settings and in the state child welfare and juvenile justice systems.
Finding # III C.1
There is 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
Recommendation # III C.1B
Congress should designate the Department of Justice to administer the process and allocate adequate funding to enable it to take on this new role. This new federal complaint process should be designed to complement, not supplant, state-level complaint-handling and due process procedures. The federal process should be simple to use and easy to understand by parents and students. The Department of Justice should develop and disseminate explicit criteria for the types of complaints alleging systemic violations it will prioritize given its limited resources.
Finding # III C.2
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
Under IDEA, the Secretary of Education may require the states to submit any data deemed necessary to administer the law. These analyses should inform OSEPís monitoring, compliance, and enforcement activities. This information should be shared with OCR and the Department of Justice. It should be widely disseminated to stakeholders in the state.
Finding # III C.3
According to the Inspector Generalís report, state complaint systems should be improved and more intensely monitored by OSEP. While the IDEA Ď97 regulations intended to improve state complaint systems, OSEP has lacked the necessary resources to conduct such evaluations.
Recommendation # III C.3
OSERS should identify model practices in states and provide technical assistance for improvement of systems in states to include development of a statewide mechanism for tracking all complaints and capturing basic information about each complaint, such as nature of complaint, a time line for resolution, an outcome, and the satisfaction of the complainant with outcome. OSEP should monitor the adequacy of state complaint systems to produce accurate accounting of all complaints filed and data sufficient to analyze the effectiveness of complaint handling throughout the state.
Finding # III D.1
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
Finding # III D.2
In 1994, DoED briefly withheld funds from the Commonwealth of Virginia because of a state policy that denied any services to special education students who were suspended or expelled from school. Although the Department lost its case against Virginia, IDEA was subsequently amended to clarify that the Virginia policy was illegal. The 1997 amendments to IDEA also explicitly gave DoED the authority to withhold a partial amounts of funds.
Recommendation # III D.2
Consideration for how partial withholding of funds could be utilized might include the notion of withholding state administrative funds for a state that fails to ensure compliance with state monitoring requirements and using those funds to hire an independent entity to conduct state monitoring. Again, withholding of funds should never be a surprise to anyone. Rather, it should be the predictable result of certain behavior.
Finding # III D.3
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 DoEDís actions had key roles in overseeing DoEDís funding or programs, particularly with respect to IDEA. Such political resistance may cause DoED to be hesitant in pursuing enforcement, impacting future enforcement efforts.
Recommendation # III D.3A
The Department of Education should exercise its leadership as enforcer of IDEA to educate federal, state, and local legislators about the extent to which the law has not been fully implemented and the toll on children with disabilities, their families, and their communities. Specifically, DoED should brief the members of each state delegation before its planned monitoring visits to discuss the technical assistance resources available to states in correcting compliance problems, enforcement options, and the long-term consequences of persistent noncompliance for children with disabilities. DoED should urge legislators to take responsibility for helping their states achieve compliance.
The Department of Education should also be proactive in implementing a well-timed and coordinated communication strategy for each planned enforcement action it takes, and it should foster dialogue about the issues. The strategy should include media outreach and briefings targeted to stakeholders and other interested parties, including federal, state, and local officials; parent groups; and others.
Recommendation # III D.3B
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
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
Authority for the Department of Education to make such referrals was made explicit in the 1997 IDEA reauthorization.
Recommendation # III D.4
IV. The National Compliance Picture
Finding # IV.1A
The changing definitions and language used to describe monitoring from one Annual Report to the next made it difficult to compare the status of monitoring/compliance findings over time. Major variations in the content organization of reports published in different years further challenged the reader in locating the information on monitoring.
Finding # IV.1B
A historical or longitudinal analysis of compliance is not required in the Annual Report by law.
Recommendation # IV.1
The Annual Report issued by DoED is not required to, and therefore does not, report on federal- and state-level enforcement activities or the due process/judicial system, a joint report by DoED and DOJ to address this information void is needed. This proposed joint report should include a description of all monitoring activities for the year (including corrective action plan follow-up visits), the findings of the monitoring activities in terms of compliance and noncompliance, and a description/analysis of cases in which the Department of Justice is involved.
Complaints and investigations of the Department of Educationís Office for Civil Rights that are IDEA-related should be presented. The report should present the current activities and findings in a context and format that will allow for historical/longitudinal analysis.
Finding # IV.2
Links between compliance monitoring, technical assistance, and enforcement action were not evident in the Annual Reports, making it difficult to piece together a picture of the state of IDEA compliance across the nation. Reporting on enforcement authority and activity at the federal or state levels, the due process/judicial system, or even court cases in which the Department of Justice is involved is not required by law.
Recommendation # IV.2
These reports would enable the reader to determine how states have responded to corrective action, technical assistance, and enforcement actions. These reports would provide the data needed to document progress and achievements as well as identify areas that need continued improvement.
V. IDEA Litigation Challenging State Noncompliance
Finding # V.1
The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.
Recommendation # V.1A
Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act for low cost legal services must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.
Recommendation # V.1B
Finding # V.2
Recommendation # V.2
OSEP should also encourage the stateís use of sanctions in this manner when the stateís compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.
VI. The Role of the Department of Justice
The Department of Justice can pursue enforcement action against state educational entities only if a referral is made from the Department of Education.
Recommendation # VI.1
The Department of Justice should play a greater role overall in the enforcement of IDEA. DOJ is not plagued by the conflicting roles of grant manager and law enforcer with the same entity. As an agency that specializes primarily in enforcing the law, DOJís first responsibility is to those protected by the laws it enforces. DOJ is not as susceptible to political pressure from states and their Congressional delegations when initiating enforcement action because it has no pre-existing economic relationship (grant maker-grantee) with the defendant. DOJ can initiate an investigation upon receiving a complaint or other information and coordinate with the Department of Education throughout case development. Information about coordinated enforcement activities should be included in DOJís Annual Report to Congress.
Finding # VI.2
Recommendation # VI.2
The Department of Justice should take the initiative to identify key cases involving noncompliance with important provisions of IDEA such as LRE, and aggressively litigate to put noncompliant states on notice that the law is now being enforced. In doing so, DOJ should actively seek the input of key stakeholders on their legal positions vis-a-vis these cases and the policy implications.
Finding # VI.3
Recommendation # VI.3
VII. Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates
Finding # VII.1
This increase showed a clear commitment to enhancing the ability of students and parents to participate in the educational planning process by developing and disseminating training and informational materials and resources, providing peer and professional support, and strengthening parent organizations through capacity building.
Recommendation # VII.1
Finding # VII.2
OSERís resource materials and programs needed greater emphasis on helping students with disabilities to understand and advocate for their civil rights as students in public schools and in the transition to living as adults with disabilities in their communities. As OSERS continues to stress transition from school to work and community life, students and their parents must understand how IDEA, the Americans with Disabilities Act (ADA), the Fair Housing Act (FHAA), and Section 504 of the Rehabilitation Act impact their opportunities for meaningful integration, employment, and access to post-secondary educational programs.
Recommendation # VII.2
OSEP should develop materials and provide training for students with disabilities and their parents about the provisions of the ADA, Section 504, FHAA, and other pertinent disability laws, to help young adults with disabilities understand their civil rights and inform them about the programs available to assist their transition from school to independent living in the community, employment, and post-secondary education. Greater emphasis on self-advocacy also will prepare students with disabilities and their families to support state and federal compliance monitoring and enforcement activities more effectively.
Finding # VII.3
Since schools are familiar with legal developments, students and parents can be disadvantaged without this same information.
Recommendation # VII.3
Finding # VII.4
Recommendation # VII.4
Finding # VII.5
Recommendation # VII.5
This percentage is a notable increase from previous years, yet there are still too few culturally appropriate materials available in languages other than English in relation to the number of students and their families needing them.
Finding # VII.6
Despite a steady increase over time in the amount of technical assistance materials available to under-served populations of students with disabilities and their families, noncompliance still tends to persist at a higher rate and over longer periods of time in these communities.
The resource list shows that materials are still scarce for students with disabilities in the juvenile justice, immigration and naturalization, and child-welfare systems, as well as for students attending schools operated or funded by the Bureau of Indian Affairs (BIA). Multicultural and language-appropriate materials for these groups are scarcer still.
Recommendation # VII.6A
OSEP, in conjunction with the Department of Justice Office of Juvenile Justice and Delinquency Prevention (OJJDP), should also fund training programs for special education lawyers on applying IDEA in the criminal justice system, and for public defenders and staff on IDEAís educational requirements to enable both to advocate more effectively for the educational rights of students with disabilities involved in state and local criminal justice systems.
Finding # VII.7A
Finding # VII.7B
Recommendation # VII.7
Elements of the coordinated technical assistance systems should include the following: