The U.S. Department of Education’s Office of Special Education and Rehabilitative Services recently released updated and consolidated guidance on State supervision requirements under the Individuals with Disabilities Education Act (IDEA). This guidance clarifies state supervision role which requires:
- Monitoring local education agencies,
- Providing technical assistance, and;
- Enforcing federal laws.
While this guidance is targeted toward state lead education agencies implementing IDEA supervision and monitoring systems, it also reaffirms the importance of these systems in improving educational outcomes for children with disabilities.
General Supervision Responsibilities
What is a State supervision system?
States have a longstanding supervision requirement over local programs to ensure local programs are complying with IDEA and meet educational standards. State must develop a supervision system that includes eight integrated components:
- Integrated monitoring activities;
- Data on processes and results;
- The State Performance Plan (SPP) and Annual Performance Report (APR);
- Fiscal management;
- Effective dispute resolution;
- Targeted TA and professional development;
- Policies, procedures, and practices resulting in effective implementation; and
- Improvement, correction, incentives, and sanctions.
States can design their own systems of supervision but generally any system must include these components at a minimum. This means states cannot limit their general supervision activities to only the IDEA requirements included in the State’s annual SPP/APR.
States should monitor all local education providers and programs at least once within a six-year period, but more frequently if data suggests an area of concern.
What are the goals of a state supervision system?
State supervision systems should effectively:
- Improve early intervention and education results and outcomes for infants and toddlers with disabilities and their families, and children with disabilities,
- Ensure that local education agencies or early intervention programs meet IDEA requirements, particularly those related to the data and requirements that support results and outcomes, and;
- Collect and report valid and reliable data.
What are integrated monitoring activities?
State education agencies must monitor local agencies in several priority areas including how the local agency is:
- Providing a free and appropriate public education (FAPE) in the least restrictive environment (LRE)
- Identifying children with disabilities through child find efforts
- Implementing a system of transition services
- Using resolution meetings and mediation
- Ensuring that there is not disproportionate representation of racial and ethnic groups from inappropriate identification
How can States effectively use data in supervision?
Review monitoring system data frequently
“States must have data systems to collect and report valid and reliable data.” In addition, States must design systems so that data is collected and reviewed frequently enough to monitor implementation and identify non-compliance outside of the annual determination process.
Use dispute resolution system data
Data from due process complaints and hearing decisions can help a State identify patterns of noncompliance within local education agencies or across the state education system. When such a pattern is identified, States must both ensure the independent complaints and decisions are effectively implemented, and investigate whether systemic noncompliance is occurring. Monitoring like this can also help States determine when additional guidance, training, or technical assistance is necessary locally and throughout the state.
Watch for disproportionate representation
States should use data to monitor for significant disproportionality or significant disparities, for example, geographic, socio-economic, and racial disparities in the groups or communities of children referred for evaluation or services. Each state must determine their definition of “significant disproportionality.” When data shows such disparities, States should consider whether targeted monitoring is appropriate to ensure appropriate IDEA implementation. Significant disproportionality does not necessarily mean failure to comply with IDEA, but can indicate either over or under identification of certain groups and requires the state to review and potentially revise any polices, procedures, or practices that the State determines contributes to the disproportionality.
There are additional federal reporting requirements related to significant discrepancies in the rate of suspensions and expulsions for children with an IEP compared to children without disabilities and disproportionate representation of racial and ethnic groups in special education.
What is the public’s role in the State’s supervision system?
States must inform stakeholders, including parents of children with disabilities, about its system and monitoring activities, but, more importantly, the OSEP recommends that States involve those stakeholders in implementation of IDEA. States must report annually to the federal government on their engagement efforts.
Identifying and Correcting Noncompliance
Areas of concern
A credible allegation regarding an IDEA policy, procedure, practice, or other requirement that raises one or more potential implementation or compliance issues is considered an area of concern. State supervision systems must be reasonably designed to consider and address areas of concern in a timely manner.
Due Diligence
When a State is an aware of an area of concern, they must conduct due diligence and reach a conclusion within a reasonable amount of time. Due diligence can include a number of investigative activities.
Findings and notification
If a State determines that there is noncompliance, it must issue a timely, written notification to the relevant local provider or program, generally within three months. States cannot establish a threshold of less than 100 percent compliance when determining compliance. This means, for example, that a State must make a finding if it determines a local education program is only 95 percent compliant with an element of IDEA. States must issue findings even when the area of concern is identified by a program or agency’s self-assessment or self-review reflecting noncompliance.
Corrections
To show that noncompliance has been corrected, States must verify both that the program or agency is correctly implementing the specific regulatory requirement by reviewing updated data and information AND has corrected each individual case of child-specific noncompliance. Corrections must be made as soon as possible but no later than one year after the State’s written notification of noncompliance.
When the state can verify that the program or agency has corrected these before they issue a finding, then instead of a finding, the state can consider this a “pre-finding correction.” However, these should not be used to provide an indiscriminate amount of time to correct issues before a finding is issued. Further, states are not required to use this flexibility.
Longstanding noncompliance
If a program does not correct an identified noncompliance in a timely manner, States need to identify the root cause and consider additional corrective actions. States can issue new findings of noncompliance if not corrected, though they are not required to, but they cannot close the original unresolved finding. Because longstanding noncompliance can impact a programs ability to provide a FAPE, states should consider whether programs should be awarded additional grants, subgrants, or contracts under IDEA going forward.
Performance Plans, Annual Determinations, and Reporting
States must develop a State Performance Plan (SPP) and Annual Performance Report (APR) that that includes results indicators and a description of its supervision system sufficiently detailed to inform the public. The SPP/APR must also report on noncompliance findings and corrections. This report must, at minimum, be posted on the state’s website and distributed to the media and through public agencies.
States must also report on the performance of each local education agency as: meets requirements, needs assistance, needs intervention, or needs substantial intervention. These performance reports must consider the local program’s performance on compliance indicators, up-to-date data, and compliance issues. Further, State’s should consider stakeholder input from parents and children with disabilities. However, States are not required to make annual performance determinations for individual local education agencies available to the public, but they are encouraged to do so to promote accountability and transparency.
Enforcement: Determinations and Other Methods
States may take enforcement actions that it deems necessary when a local education agency is not meeting requirements, whether as part of annual determination or unrelated to the annual determination process.
However, States must take certain actions when a local education agency’s annual determination indicates they need assistance for two consecutive years, need intervention for three or more consecutive years, or at any time the State determines they need substantial intervention.
Needs Assistance for Two Consecutive Years
States must either: (1) require the program to get Technical Assistance (TA) or identify the program as a “high-risk grantee” and impose Specific Conditions on their grant awards. States may do both. Depending on which performance indicators are not being met, States may be required to prohibit the program from reducing its maintenance of effort funding.
Needs Intervention for Three or More Consecutive Years
States can take any actions under “Needs Assistance” and must additionally: (1) require the program to prepare a corrective action or improvement plan, (2) withhold, in whole or part, further payments under some parts of IDEA, or (3) both.
Needs Substantial Intervention
Any time a State determines a program “needs substantial intervention” the State must withhold further payments under IDEA, in whole or part, after reasonable notice and opportunity for hearing.