[Federal Register: August 3, 1998 (Volume 63, Number 148)]
[Notices]
[Page 41369-41382]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au98-134]
[[Page 41369]]
_______________________________________________________________________
Part IV
Department of Education
_______________________________________________________________________
Office of Special Education and Rehabilitative Services; Assistance to
States for the Education of Individuals With Disabilities; Notice
[[Page 41370]]
DEPARTMENT OF EDUCATION
Office of Special Education and Rehabilitative Services;
Assistance to States for the Education of Individuals With Disabilities
AGENCY: Department of Education.
ACTION: Notice of written findings and decision and compliance
agreement.
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SUMMARY: Section 457 of the General Education Provisions Act (GEPA), 20
U.S.C. 1234f, authorizes the Secretary to enter into Compliance
Agreements with recipients that are failing to comply substantially
with Federal program requirements. In order to enter into a Compliance
Agreement, the Secretary must determine, in Written Findings and
Decision, that the recipient cannot comply, until a future date, with
the applicable program requirements, and that a Compliance Agreement is
a viable means of bringing about such compliance. On March 10, 1998,
the Secretary entered into a Compliance Agreement with the District of
Columbia Public Schools (DCPS) and issued Written Findings and Decision
on that matter. Under section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2),
the Written Findings and Decision and Compliance Agreement are to be
published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Dr. Gregory R. Corr, U.S. Department
of Education, Office of Special Education Programs, Mary E. Switzer
Building, 600 Independence Avenue S.W., Washington D.C., 20202-2722.
Telephone: (202) 205-9027. Individuals who use a telecommunications
device for the deaf (TDD) may call the TDD number at (202)260-5137.
Individual with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: Section 454 of GEPA, 20 U.S.C. 1234c, sets
out the remedies available to the Department when it determines that a
recipient ``is failing to comply substantially with any requirement of
law applicable'' to the Federal program funds administered by this
agency. Specifically, the Department is authorized to:
(1) Withhold funds,
(2) Obtain compliance through a cease and desist order,
(3) Enter into a compliance agreement with the recipient, or,
(4) Take any other action authorized by law, 20 U.S.C. 1234c(a)(1)-
(4).
The Department's Office of Special Education Programs (OSEP) has
been working with DCPS over a number of years to address its serious
and on-going failure to comply with the requirements of Part B of the
Individuals with Disabilities Education Act (IDEA). On February 4 and
5, 1997, OSEP--as part of its regular monitoring program--conducted
public meetings at which parents, advocates, representatives of
professional groups, and concerned members of the community provided
testimony indicating that DCPS had failed to meet many of the
requirements of Part B. The testimony indicated that several of the
violations that had been identified in prior OSEP monitoring reports
had not been corrected. On February 10, 1997, OSEP met with General
Julius W. Becton, Jr., superintendent and chief executive officer for
DCPS, and members of his staff to discuss OSEP's serious concerns with
ongoing compliance issues in DCPS' special education programs. General
Becton and his staff acknowledged that the District's special education
programs did not comply with the requirements of Part B and informed
OSEP that DCPS was developing a strategic plan to address these
violations.
In a March 27, 1997 letter, General Becton informed OSEP that he
believed that developing a compliance agreement would be an appropriate
course of action which would be in the best interests of the children
of the District of Columbia. The purpose of a Compliance Agreement ``is
to bring the recipient into full compliance with the applicable
requirements of law as soon as feasible and not to excuse or remedy
past violations of such requirements.'' 20 U.S.C. 1234f(a). In order to
enter into a Compliance Agreement with a recipient, the Secretary must
determine that compliance until a future date is not genuinely feasible
and that a Compliance Agreement is a viable means for bringing about
such compliance.
On March 10, 1998, the Secretary issued Written Findings and
Decision which held that compliance by DCPS with the Part B
requirements to ensure that a free appropriate public education is made
available to all eligible children and youth with disabilities was
genuinely not feasible until a future date because of the ``magnitude
of the problem'' and the ``complex and long-term causes'' underlying
that problem, including an inadequate management system for its special
education program. The Secretary also determined that the Compliance
Agreement represents a viable means of bringing about compliance
because of the steps DCPS has already taken to address its
noncompliance, its commitment of resources and the plans it has
developed for further action. Moreover, the Agreement sets out a very
specific schedule that DCPS must meet in coming into compliance with
the Part B requirements. This schedule, coupled with specific data
collection and reporting requirements, will allow the Department to
monitor closely DCPS' progress in meeting the terms of the Compliance
Agreement. The Secretary signed the Compliance Agreement on March 10,
1998. The superintendent and chief executive officer for DCPS, General
Julius W. Becton, Jr. signed the Agreement on March 16, 1998.
As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2),
the full text of the Secretary's Written Findings and Decision in the
Matter of the Request of the District of Columbia Public Schools to
Enter into a Compliance Agreement and the binding provisions of the
Compliance Agreement are set forth in this publication. The Action Plan
items mentioned in the introduction are not included in this Notice
because they were included in the Compliance Agreement for
informational purposes only, to demonstrate DCPS' commitment to coming
into full compliance with IDEA, and are not binding on DCPS. OSEP will
make copies of the Action Plan available to the public upon request.
Electronic Access to This Document
Anyone may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office at (202) 512-1530 or, toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins, and Press Releases.
[[Page 41371]]
Notes: The official version of a document is the document
published in the Federal Register.
(Authority: 20 U.S.C. 1234c and 1234f and 20 U.S.C. 1401, 1411-
1420.)
Dated: July 28, 1998.
Richard W. Riley,
Secretary of Education.
Text of the Secretary's Written Findings and Decision
I. Introduction
The United States Department of Education (the Department) has
determined, pursuant to 20 U.S.C. Secs. 1234c and 1234f, that the
District of Columbia Public Schools (DCPS) failed to comply
substantially with the requirements of Part B of the Individuals with
Disabilities Education Act (Part B), 20 U.S.C. Secs. 1401, 1411-1419,
and that it is not feasible for DCPS to achieve full compliance
immediately. The Department's Office of Special Education Programs
(OSEP) has been working with DCPS over a number of years to address its
serious and on-going failure to comply with the requirements of Part B.
On February 4 and 5, 1997, OSEP--as part of its regular monitoring
program--conducted public meetings at which parents, advocates,
representatives of professional groups, and concerned members of the
community provided testimony indicating that DCPS had failed to meet
many of the requirements of Part B. The testimony indicated that
several of the violations that had been identified in prior OSEP
monitoring reports had not been corrected. On February 10, 1997, OSEP
met with General Julius W. Becton, Jr., superintendent and chief
executive officer for DCPS, and members of his staff to discuss OSEP's
serious concerns with ongoing compliance issues in DCPS' special
education programs. General Becton and his staff acknowledged that the
District's special education programs did not comply with the
requirements of Part B and informed OSEP that DCPS was developing a
strategic plan to address these violations. In a March 27, 1997 letter,
General Becton informed OSEP that he believed that developing a
compliance agreement pursuant to 20 U.S.C. 1234f would be an
appropriate course of action which would be in the best interests of
the children of the District of Columbia.
The purpose of a Compliance Agreement is to bring a ``recipient
into full compliance with the applicable requirements of law as soon as
feasible and not to excuse or remedy past violations of such
requirements.'' 20 U.S.C. 1234f(a). In accordance with the requirements
of 20 U.S.C. 1234f(b)(1), a public hearing was conducted in the
District of Columbia by Department officials on June 18, 1997, at the
Logan Administration Building. Witnesses representing DCPS, affected
students and parents, and other concerned organizations testified at
this hearing on the question of whether the Department should grant
DCPS's request to enter into a Compliance Agreement. The Department has
reviewed this testimony, the proposed Compliance Agreement, and other
relevant materials.\1\ On the basis of this evidence, the Department
concludes, and hereby issues written findings in accordance with 20
U.S.C. Sec. 1234f(b)(2), that DCPS has met its burden of establishing
that:
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\1\ A copy of the Compliance Agreement, which was prepared by
DCPS in conjunction with representatives of this Department, is
appended to this decision as Attachment A.
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(1) DCPS compliance with the Part B requirements to ensure that a
free appropriate public education is made available to all eligible
children and youth with disabilities in the District of Columbia is not
feasible until a future date; and
(2) DCPS will be able to carry out the terms and conditions of the
Compliance Agreement and come into full compliance with the Part B
requirements within three years of the date of this decision.
During the effective period of the Compliance Agreement, which ends
three years from the date of this decision, DCPS will be eligible to
receive Part B funds as long as it complies with all the terms and
conditions of the Agreement. Any failure by DCPS to meet these
conditions will authorize the Department to consider the Compliance
Agreement no longer in effect. Under such circumstances, the Department
may take any enforcement action authorized by 20 U.S.C. Sec. 1234c. At
the end of the effective period of the Compliance Agreement, DCPS must
be in full compliance with Part B in order to maintain its eligibility
to receive funds under that program. 20 U.S.C. Sec. 1234c.
II. Relevant Statutory and Regulatory Provisions
A. Part B of the Individuals With Disabilities Education Act
Part B was passed in response to Congress' finding that a majority
of children with disabilities in the United States ``were either
totally excluded from schools or [were] sitting idly in regular
classrooms awaiting the time when they were old enough to drop out.''
H. Rep. No. 332, 94th Cong., 1st Sess. 2 (1975), quoted in Board of
Education v. Rowley, 458 U.S. 176, 181 (1982).2 Part B
provides Federal financial assistance to those State educational
agencies (SEAs) that demonstrate that they meet certain eligibility
requirements, including having in effect a policy to ensure that ``a
free appropriate public education [FAPE] is available to all children
with disabilities residing in the State between the ages of three and
twenty-one * * *'' 20 U.S.C. Sec. 1412(a)(1).3 FAPE is
defined as special education and related services that:
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\2\ Part B was recently amended by the Individuals with
Disabilities Education Act Amendments of 1997. (IDEA-97) This
decision and the attached agreement include citations to the current
statute as amended and the regulations currently in effect. On
October 22, 1997, the Department published proposed regulations to
implement IDEA-97. When these regulations are published in final,
the agreement will be amended to reflect any necessary changes to
the regulatory citations.
\3\ Part B defines ``child with a disability'' to mean a child
``with mental retardation, hearing impairments (including deafness),
speech or language impairments, visual impairments (including
blindness), serious emotional disturbance (hereinafter referred to
as `emotional disturbance'), orthopedic impairments, autism,
traumatic brain injury, other health impairments, or specific
learning disabilities and who, by reason thereof, needs special
education and related services.'' 20 U.S.C. Sec. 1401(3)(A). Under
sections 301(a)(1) and (a)(2)(H) of the Department of Education
Organization Act (DEOA), 20 U.S.C. Sec. 3441(a)(1) and (a)(2)(H),
Congress transferred the administration of Part B from the
Commissioner of Education to the Secretary of Education. Section
2078 of the DEOA, 20 U.S.C. Sec. 3417, in turn delegates
responsibility for Part B to the Assistant Secretary for Special
Education and Rehabilitative Services.
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(a) Have been provided at public expense, under public supervision
and direction, and without charge,
(b) Meet the standards of the State educational agency,
(c) Include an appropriate preschool, elementary, or secondary
school education in the State involved, and
(d) Are provided in conformity with the individualized education
program [IEP] required under section 614(d). [20 U.S.C. Sec. 1401(8)]
A State also must ensure that the Part B requirements regarding
evaluations, reevaluations, timeliness and implementation of due
process hearing decisions, child find, and the provision of an
education in the least restrictive environment are met. Part B requires
DCPS to ensure that:
sall children with disabilities residing in the [District of
Columbia] * * * including children with disabilities attending
private schools, regardless of the severity of their disabilities,
and who are in need of special education and related services are
identified,
[[Page 41372]]
located, and evaluated * * * [20 U.S.C. Sec. 1412(a)(3)(A)]
Moreover, a child with a disability cannot receive an initial special
education placement until an evaluation has been performed in
accordance with sections 614(a)(1), (b) and (c) of Part B.4
All children with disabilities must be placed in the least restrictive
environment appropriate to their individual needs, as required by
section 612(a)(5)(A) of Part B and 34 CFR Secs. 300.550-300.556. After
initial evaluation and placement, children with disabilities must be
reevaluated at least every three years in accordance with sections
614(a)(2), (b) and (c) of Part B.
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\4\ The current standard for conducting initial evaluations
within a reasonable period of time in DCPS was established by the
Federal district court's decree in Mills v. Board of Education of
the District of Columbia, 348 F. Supp. 866, 878-79 (D.DC 1972),
which requires that a student who has been referred for a special
education evaluation must be evaluated and placed within 50 days of
referral. Under Part B at 20 U.S.C. Sec. 1412(a)(11), States are
required to ensure compliance with State standards for the
implementation of programs for children with disabilities.
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As noted above, the provision of FAPE includes special education
and related services. ``Related services'' is defined to mean:
transportation and such developmental, corrective, and other
supportive services (including speech-language pathology and
audiology services, psychological services, physical and
occupational therapy, recreation, including therapeutic recreation,
social work services, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services,
except that such medical services shall be for diagnostic and
evaluation purposes only) as may be required to assist a child with
a disability to benefit from special education, and includes the
early identification and assessment of disabling conditions in
children. [20 U.S.C. Sec. 1401(22)]
The IEP for each child with a disability must specify the related
services which are to be provided. 34 CFR Sec. 300.346(a)(3). In order
to meet its obligation to make FAPE available, DCPS must be able to
identify, locate, and evaluate all children with disabilities who are
in need of special education and related services, provide timely
initial evaluations and reevaluations, place students in the least
restrictive environment appropriate to their individual needs and
provide the related services specified in each student's IEP.
DCPS must also ensure that its due process system, which is a
critical component of Part B designed to protect the rights of children
and their parents, meets the requirements of Part B. A final decision
must be issued no later than 45 days after receipt of a request for a
due process hearing as required by 34 CFR Sec. 300.512. Independent
hearing officer determinations must be implemented within the time
frame prescribed by the hearing determination as required by sections
615 (f) and (i) of Part B.
B. The General Education Provisions Act
The General Education Provisions Act (GEPA) provides the Department
with a number of options when it determines a recipient of Department
funds is ``failing to comply substantially with any requirements of law
applicable to such funds.'' 20 U.S.C. Sec. 1234c. In such cases, the
Department is authorized to:
(1) Withhold further payments under that program from the
recipient,
(2) Issue a complaint to compel compliance through a cease and
desist order,
(3) Enter into a compliance agreement with the recipient to bring
it into compliance; and
(4) Take any other action authorized by law. 20 U.S.C. Sec. 1234c.
In addition, under section 616(a) of Part B, if a State fails to
comply substantially with IDEA, the Department is authorized to
withhold, in whole or in part, any further payments to the State under
Part B or to refer the matter for appropriate enforcement action, which
may include referral to the Department of Justice.
Under section 457 of GEPA, the Department may enter into a
Compliance Agreement with a recipient that is failing to comply
substantially with specific program requirements. 20 U.S.C. Sec. 1234f.
The purpose of a Compliance Agreement is ``to bring the recipient into
full compliance with the applicable requirements of the law as soon as
feasible and not to excuse or remedy past violations of such
requirements.'' Before entering into a Compliance Agreement with a
recipient, the Department must hold a hearing at which the recipient,
affected students and parents or their representatives, and other
interested parties are invited to participate. In that hearing, the
recipient has the burden of persuading the Department that full
compliance with the applicable requirements of law is not feasible
until a future date and that a Compliance Agreement is a viable means
for bringing about such compliance. 20 U.S.C. Sec. 1234f(b)(1). If, on
the basis of all the available evidence, the Secretary determines that
compliance until a future date is genuinely not feasible and that a
Compliance Agreement is a viable means for bringing about such
compliance, he is to make written findings to that effect and publish
those findings, together with the substance of any Compliance
Agreement, in the Federal Register. 20 U.S.C. Sec. 1234f(b)(2).
A Compliance Agreement must set forth an expiration date, not later
than 3 years from the date of the Secretary's written findings, by
which time the recipient must be in full compliance with all program
requirements. 20 U.S.C. Sec. 1234f(c)(1). In addition, the Compliance
Agreement must contain the terms and conditions with which the
recipient must comply during the period that Agreement is in effect. 20
U.S.C. Sec. 1234f(c)(2). If the recipient fails to comply with any of
the terms and conditions of the Compliance Agreement, the Department
may consider the Agreement no longer in effect and may take any of the
compliance actions described previously. 20 U.S.C. Sec. 1234f(d).
III. Analysis
A. Overview of Issues To Be Resolved in Determining Whether a
Compliance Agreement Is Appropriate
In deciding whether a Compliance Agreement between the Department
and DCPS is appropriate, the Department must first determine whether
compliance by DCPS with the Part B requirements concerning evaluations,
reevaluations, related services, timeliness and implementation of due
process decisions, child find and least restrictive environment is not
feasible until a future date. 20 U.S.C. Sec. 1234f(b). The second issue
that must be resolved is whether DCPS will be able, within a period of
up to three years, to come into compliance with the Part B
requirements. Moreover, not only must DCPS come into full compliance by
the end of the effective period of the Compliance Agreement, it must
also make steady and measurable progress toward that objective while
the compliance agreement is in effect. If such an outcome is not
possible, then a Compliance Agreement between the Department and DCPS
would not be appropriate.
B. DCPS Has Failed To Comply Substantially With Part B
OSEP has been working with DCPS over a number of years to address
its serious and on-going failure to comply with the requirements of
Part B. In a monitoring report issued on February 8, 1994, OSEP found
that in several areas DCPS was not meeting its responsibility to ensure
that its educational programs for children with disabilities were being
[[Page 41373]]
administered in a manner consistent with the requirements of Part B and
its implementing regulations. OSEP found, among other things, that DCPS
did not provide the related services specified on a student's IEP,
place students in the least restrictive environment, conduct an
evaluation every three years or issue due process decisions within the
required 45 day timeline.
From March 1 through 6, 1995, OSEP conducted a follow-up review to
determine the extent to which DCPS was making progress towards
implementing selected corrective actions specified in the 1994
monitoring report. In a June 12, 1995 monitoring report, OSEP
determined that significant problems remained with regard to least
restrictive environment requirements and the provision of related
services. OSEP also determined that DCPS continued to have significant
problems with ensuring that students with disabilities are evaluated
every three years. In response to this report, DCPS submitted a
corrective action plan to ensure that these violations would be
corrected.
On February 4 and 5, 1997, in preparation for a monitoring visit
scheduled for the spring of 1997, OSEP conducted public meetings at
which parents, advocates, and representatives of professional groups
provided testimony indicating that DCPS has failed to meet many of the
requirements of Part B. Many people testified that DCPS was continuing
to have compliance problems in the same areas that had been identified
in the February 8, 1994 and June 12, 1995 monitoring reports. On
February 10, 1997, OSEP met with General Becton and members of his
staff to discuss OSEP's serious concerns with DCPS' ongoing
noncompliance with IDEA. There was substantial agreement between DCPS
and OSEP regarding DCPS' current noncompliance with Part B and the need
to develop a comprehensive corrective action plan. The Department
agreed to consider the possibility of entering into a compliance
agreement. In a March 27, 1997 letter, General Becton informed OSEP
that he believed that developing a compliance agreement would be an
appropriate course of action which is in the best interest of the
children of the District of Columbia.
C. The Noncompliance of DCPS With the Part B Requirements Identified in
the Compliance Agreement Cannot Be Corrected Immediately.
On June 18, 1997, pursuant to 20 U.S.C. 1234f(b)(1), the Department
conducted a public hearing to determine whether a compliance agreement
with DCPS is appropriate to address system-wide problems in the
provision of special education for students with disabilities residing
in the District of Columbia. As at the February hearings, parents,
advocates, service providers, and other interested parties testified
that DCPS was continuing to have compliance problems in the same areas
that had been identified in previous reports. Many commenters supported
the Department entering into a compliance agreement with DCPS but urged
the Department to make the agreement as specific as possible.
On January 26, 1998, DCPS reported that on January 5, 1998, 2,331
students who had been referred for a special education evaluation
awaited completion of an initial assessment and placement for longer
than 50 days. As of January 5, 1998, of the 655 hearing requests that
had been received, a final decision had not been issued within 45 days
of the request in 482 cases as required by 34 CFR Sec. 300.512. As of
January 5, 1998, 332 final decisions had not been fully implemented
within the time frame prescribed by the hearing determination. These
numbers are evidence of the magnitude of the problems faced by DCPS.
Through the monitoring process and the public hearing, the
Department has learned that DCPS's difficulties in complying with the
requirements of Part B are the outgrowth of a number of complex and
long-term causes including an inadequate management system for its
special education program. At the public hearing, DCPS itself
identified inadequate management and several other reasons why
compliance cannot be achieved until a future date. These reasons
include poor information management systems, lack of staff training,
inappropriate staff allocation and lack of appropriate programs.
All parties who testified at the public hearing, including DCPS,
agreed that DCPS must implement an effective system of managing its
special education program. The sheer magnitude of the problem faced by
DCPS leads the Department to conclude that DCPS will not be able to
come into compliance with the Part B requirements until a future date.
This conclusion is consistent with the testimony of all of the
witnesses at the public hearing.
D. DCPS Can Meet the Terms and Conditions of a Compliance Agreement and
Come Into Full Compliance With the Requirements of Part B Within Three
Years
The Chief Executive Officer, General Julius W. Becton, Jr., pledged
to rebuild the special education division of DCPS. Already, specific
steps have been taken, or are in the process of being planned, to
realize this goal. DCPS has developed a strategic plan designed to
reorganize its special education division and address the Part B
requirements for which DCPS is currently not in compliance. DCPS has
budgeted a total increase in resources dedicated to special education
of $20 million for the 1998-99 school year.
DCPS's special education division is currently undergoing a
reorganization and is planning to hire a team of three specialists to
coordinate special education. In the fall of 1997, DCPS completed new
position descriptions with performance expectations and standards for
all staff designed to improve accountability and assure quality. In
addition, DCPS has reallocated its staff to ensure more effective use
of its current personnel. A Child Find Liaison has been assigned and a
child find hotline has been established.
DCPS issued a request for proposals (RFP) in June 1997 for special
education assessment services. DCPS is in the process of recruiting
additional related service providers. DCPS has allocated additional
resources to ensure that due process hearings can be conducted within
the 45 day timeline. DCPS is planning to hire five additional
administrative law judges to conduct due process hearings and four
additional lawyers to represent DCPS at hearings. A mediation process
to meet the requirement of section 615(e) of Part B is being developed.
DCPS is conducting additional staff development training so that
they can serve students more inclusively at local schools. DCPS has
expanded its early childhood program to serve an additional 40
preschool children and under the terms of the agreement must continue
to expand its preschool programs. New programs have been developed for
high school age students with learning disabilities and elementary
school aged students who have emotional disturbance and DCPS' strategic
plan includes continuing to build up its program capabilities. The
steps DCPS has already taken, its commitment of resources, and the
plans it has developed for further action, demonstrate that DCPS has
the capacity to meet the terms and conditions of the Compliance
Agreement.
Finally, the Compliance Agreement sets out a very specific
schedule, that DCPS must meet during the next three years, for
attaining compliance with the many requirements of Part B. Therefore,
DCPS is committed not only to being in
[[Page 41374]]
full compliance with Part B within three years, but to meeting a
stringent, but reasonable, schedule for reducing the number of children
with disabilities in the District who have not received the
evaluations, reevaluations, and related services to which they are
entitled and for reducing the number of hearing decisions that have not
been issued within the 45 day timeline and the number of decisions that
have not been implemented. The Compliance Agreement also sets out data
collection and reporting procedures that DCPS must follow. These
provisions will allow the Department to ascertain promptly whether or
not DCPS is meeting each of its commitments under the Compliance
Agreement. The Compliance Agreement, because of the obligations it
imposes on DCPS, will provide the Department with the information and
authority it needs to protect the Part B rights of the District of
Columbia's children.
The task of ensuring that all children with disabilities receive
the rights and protections to which they are entitled under IDEA is
difficult given the long-standing problems in DCPS' special education
program. However, the Department has determined that with the
commitment of the new leadership to meet the terms and conditions of
this agreement, the process of improving special education services for
all students with disabilities residing in the District of Columbia can
begin immediately. For these reasons, the Department concludes that
DCPS can meet all the terms and conditions of the Compliance Agreement
and come into full compliance with Part B within three years.
IV. Conclusion
For the foregoing reasons, the Department finds the following: (1)
That full compliance by DCPS with the requirements of Part B is not
feasible until a future date, and (2) that DCPS can meet the terms and
conditions of the attached Compliance Agreement and come into full
compliance with the requirements of Part B within three years of the
date of this decision. Therefore, the Department determines that it is
appropriate for this agency to enter into a Compliance Agreement with
DCPS. Under the terms of 20 U.S.C. Sec. 1234f, that Compliance
Agreement becomes effective on the date of this decision.
Dated: March 10, 1998.
Richard W. Riley,
Secretary of Education.
Text of the Binding Provisions of the Compliance Agreement--
Compliance Agreement Under Part B of the Individuals With
Disabilities Education Act Between the United States Department of
Education and the District of Columbia Public Schools
Introduction
The Office of Special Education Programs of the United States
Department of Education (OSEP) conducted public hearings during the
week of February 3, 1997 regarding the District of Columbia Public
Schools (DCPS') implementation of Part B of the Individuals with
Disabilities Education Act (Part B of IDEA).1 Those
hearings, and input from representatives of DCPS, lead OSEP to raise
the possibility of the development of a compliance agreement to bring
DCPS into full compliance with applicable portions of the law as soon
as feasible. In a letter dated March 27, 1997, General Julius Becton,
Jr., DCPS' Chief Executive Officer, confirmed DCPS' interest in
developing a compliance agreement, believing that the execution of such
an agreement would be in the best interests of the children of the
District of Columbia.
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\1\ This agreement references the regulations in effect on the
date that this agreement took effect. On October 22, 1997, the
Department published proposed regulations to implement the
Individuals with Disabilities Education Act Amendments of 1997. When
these regulations are published in final, the agreement will be
amended to reflect any necessary changes to the regulatory
citations. These amendments will not, however, alter the effective
period of this agreement.
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Pursuant to this Compliance Agreement under 20 U.S.C. Sec. 1234f,
DCPS must be in full compliance with the requirements of Part B no
later than three years from the date of the Department's written
findings, a copy of which is attached to, and incorporated by reference
into, this Agreement. Specifically, DCPS must ensure and document that
no later than three years after the effective date of this Agreement,
the following compliance goals are achieved:
1. An initial evaluation that meets the requirements of sections
614(a)(1), (b), and (c) of Part B of IDEA is completed for all children
with disabilities, and an appropriate placement is made within the
maximum number of days established by DCPS' policy, and a reevaluation
that meets the requirements of sections 614(a)(2), (b), and (c) of Part
B of IDEA, is completed for all children with disabilities no later
than 36 months after the date on which the most recent previous
evaluation or reevaluation was completed;
2. All children with disabilities receive the related services
specified in their individualized education program as required by
section 602(8) of Part B of IDEA and 34 CFR Sec. 300.350;
3. A final decision is issued not later than 45 calendar days after
the receipt of a request for a due process hearing as required by 34
CFR 300.512, except in cases where the requester voluntarily withdraws
the request (e.g., in favor of mediation, because the issues motivating
the request were addressed, and/or a settlement has been reached);
4. Independent hearing officer determinations are implemented
within the time-frame prescribed by the hearing determination as
required by sections 615(f) and (i) of Part B of IDEA;
5. A Child-Find system is established which identifies and locates
all children with disabilities, including those transitioning from Part
H programs, who are in need of special education and related services
as required by section 612(a)(3) of Part B of IDEA;
6. All children with disabilities are placed in the least
restrictive environment appropriate to their individual needs, as
required by section 612(a)(5)(A) of Part B of IDEA and 34 CFR 300.550-
300.556;
7. State complaint procedures which meet the requirements of 34 CFR
300.660-300.662 are implemented;
8. Beginning no later than age 16, and at a younger age, if
determined appropriate, a statement of needed transition services is
included in each student's individualized education plan (IEP) as
required by 34 CFR 300.346(b) and if a purpose of the IEP meeting is
consideration of transition services, that all required participants
have been invited and participate as required by 34 CFR 300.344(c) and
that a notice containing all required content is issued as required by
34 CFR 300.345(b)(2);
9. A State Advisory Panel is established which meets the
requirements of section 612(a)(21) of Part B of IDEA;
[[Page 41375]]
10. Procedures that meet the requirements of section 615(b)(2) of
Part B of IDEA are implemented to protect the rights of the child
whenever the parents of the child are not known, the agency cannot,
after reasonable efforts, locate the parents, or the child is a ward of
the State; and
11. Sufficient numbers of personnel are available to meet the needs
of students with disabilities who are limited English proficient.
During the period that this Compliance Agreement is in effect, DCPS
is eligible to receive Part B funds if it complies with the terms and
conditions of this Agreement, including the provisions of Part B of
IDEA, as amended by the IDEA Amendments of 1997 (IDEA-97) and other
applicable Federal statutory and regulatory requirements.
Specifically, the Compliance Agreement sets forth commitments and
timetables for DCPS to meet in coming into compliance with its Part B
obligations. In addition, DCPS is required to submit documentation
concerning its compliance with these goals and timetables. Any failure
by DCPS to comply with the goals, timetables, documentation, or other
provisions of the Compliance Agreement, including the reporting
requirements, will authorize the Department to consider the agreement
no longer in effect. Under such circumstances, the Department may take
any action authorized by 20 U.S.C. Sec. 1234c, including the
withholding of Part B funds from DCPS. This Agreement will take effect
on the day the Department issues its written findings of fact, pursuant
to the requirements of 20 U.S.C. Sec. 1234f, and will expire three
years from that date.
The following pages of this compliance agreement address topic
areas of DCPS' non-compliance, and include goals, verifiable outcomes,
schedules for levels of compliance over the three year agreement, and
DCPS' ``Action Plan'' for achieving compliance. Since several of the
compliance goal areas are inter-related, some ``Action Plan'' items are
duplicated between topic areas. Please note that ``Action Plan'' items
for each goal are provided by DCPS for informational purposes only, to
demonstrate DCPS' commitment to coming into full compliance with IDEA.
DCPS and the Department agree that ``Action Plan'' items (activities,
time line/status, responsibility, milestone/verification, and special
resources) shall not be construed to bind DCPS legally or otherwise.
DCPS, however, is bound to comply with all other aspects of this
Agreement.
Topic 1.0: Initial Evaluations and Re-evaluations
Current Status: DCPS' current policy, as set forth in the Mill's
decree, is that a student who has been referred for a special education
evaluation must be evaluated and placed within 50 days of the referral.
On January 5, 1998, 2,331 students who had been referred for a special
education evaluation awaited completion of an initial assessment and
placement for longer than 50 days. Additionally, on March 31, 1998,
2,529 (data received March 31, 1998) students with disabilities will
not have been re-evaluated for more than 36 months following their
initial or most recent previous re-evaluation. Goals are:
Goal 1.0
(a) To ensure that an initial evaluation that meets the
requirements of sections 614(a)(1), (b) and (c) of Part B of IDEA is
completed for all children with disabilities and an appropriate
placement is made within 50 days after the child is referred
2; and,
---------------------------------------------------------------------------
\2\ DCPS and the Department agree that if the time line for
initial evaluation and placement is modified by the Court, the
Compliance Agreement will be amended to incorporate the revised time
line.
---------------------------------------------------------------------------
(b) To ensure that a re-evaluation that meets the requirements of
sections 614(a)(2), (b) and (c) of Part B of IDEA is completed for all
children with disabilities no later than 36 months after the date on
which the most recent previous evaluation or re-evaluation was
completed.
DCPS will gather baseline data regarding the number of students
(yy) for the re-evaluation goal, and provide that data to the
Department by March 31, 1998 (data received March 31, 1998 and included
in Table B, below).
Overall Measurable Outcomes and Verification for Goal 1.0 (a): Initial
Evaluations
(a) Every week, DCPS will prepare an internal report which includes
the name of each child referred for initial evaluation, and the number
of calendar days since the referral, the status of that referral
(complete or incomplete), and the component assessments remaining if
the evaluation is incomplete and/or placement has not been made.
(b) DCPS shall make these internal reports available to OSEP if
requested by that office.
(c) On a periodic basis, beginning with the period ending June 30,
1998, DCPS will submit to the Department--at the times and in the
manner specified in Table A--a summary of the internal reports for the
relevant reporting period. The summary will include:
* The number of children referred for initial evaluation, as
of the start of the reporting period, whose initial evaluation and
placement have not been completed within the required time period;
* The number of children referred for initial evaluations
during the reporting period;
* The number of children for whom an initial evaluation and
placement was completed during the reporting period;
* The number of referred children who did not receive an
initial evaluation and placement within the required time period at the
conclusion of the reporting period.
(d) Table A sets out, on a periodic basis, DCPS' commitment for
incremental reduction to zero of the number of children waiting for
initial evaluations and placements for longer than 50 days after
referral. For children referred prior to January 5, 1998, this number
will be reduced to zero by March 31, 1999. For children referred on or
after January 5, 1998, this number will be reduced to zero by March 31,
2000. DCPS is obligated not only to meeting these final commitments to
reduce the number of children awaiting timely initial evaluations and
placements to zero, but also to meeting all of the periodic commitments
for reducing that number set out in Table A.
(e) DCPS shall provide OSEP, by April 30, 1998, its policies and
procedures for ensuring that evaluations and reevaluations are
conducted in conformity with the evaluation procedures required in
section 614(b) and (c) of Part B of IDEA.
[[Page 41376]]
Table A.--DCPS Periodic Reports to the Department: Required Levels and Timelines for Achieving and Documenting
Progress Toward Full Compliance (Initial Evaluations and Placements)
----------------------------------------------------------------------------------------------------------------
Number of children awaiting completion of initial evaluation and placements for more than 50 days
-----------------------------------------------------------------------------------------------------------------
Referrals Date report
Date of reporting period prior to 1/5/ Referrals 1/5/98 and after submitted to
98 department
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98.............. 1,748 85% of referrals.................................. 7/15/98
7/1 to 9/30/98.............. 932 75% of referrals.................................. 10/15/98
10/1 to 12/31/98............ 233 60% of referrals.................................. 1/15/98
1/1 to 3/31/99.............. 0 45% of referrals.................................. 4/15/99
4/1 to 6/30/99.............. 0 30% of referrals.................................. 7/15/99
7/1 to 9/30/99.............. 0 15% of referrals.................................. 10/15/99
10/1 to 12/31/99............ 0 5% of referrals................................... 1/15/00
1/1 to 3/31/00.............. 0 0................................................. 4/15/00
4/1 to 6/30/00.............. 0 0................................................. 7/15/00
7/1 to 9/30/00.............. 0 0................................................. 10/15/00
10/1 to 12/31/00............ 0 0................................................. 1/15/01
1/1 to 3/31/01.............. 0 0................................................. 4/15/01
----------------------------------------------------------------------------------------------------------------
Overall Measurable Outcomes and Verification for Goal 1.0 (b)
Reevaluations
(a) Within the first week of each month, DCPS will prepare an
internal report of the name of each child for whom an initial
evaluation, or the most recent re-evaluation, was completed. Children
for whom the initial evaluation or re-evaluation was completed more
than 36 months prior will be highlighted in the report.
(b) Appended to the above report, DCPS will note which children
from the previous month's report have been re-evaluated during that
month, as well as those cases which are still pending.
(c) DCPS shall make these internal reports available to OSEP if
requested by that office.
(d) Within fifteen (15) calendar days following the end of each
reporting period commencing with the reporting period ending June 30,
1998, DCPS will submit to the Department a summary of the monthly
reports for the period, including:
* The number of children who have not received re-
evaluations within 36 months at the start of the reporting period;
* The number of children who, during the reporting period,
have been identified as not receiving re-evaluations within 36 months;
* The number of students for whom a re-evaluation was
completed during the reporting period;
* The number of students whose re-evaluation is still
pending for more than 36 months at the end of the reporting period.
(e) Table B sets out, on a periodic basis, DCPS'' commitment for
incremental reduction to zero of the number of children who have not
received timely re-evaluations. For children whose re-evaluations was
due on or before January 5, 1998, this number will be reduced to zero
by March 31, 1999. For children whose re-evaluations will be due after
January 5, 1998, this number will be reduced to zero by March 31, 2000.
DCPS is obligated not only to meeting these final commitments to reduce
the number of children awaiting timely re-evaluations to zero, but also
to meeting all of the periodic commitments for reducing that number set
out in Table B.
Table B.--DCPS Periodic Reports to the Department: Required Levels and Timelines for Achieving and Documenting
Progress Toward Full Compliance (Re-Evaluations)
----------------------------------------------------------------------------------------------------------------
Students awaiting re-evaluation more than 36 months after initial evaluation or last re-evaluation
-----------------------------------------------------------------------------------------------------------------
Date report
Date of reporting period Re-evaluation due 1/5/98 or Re-evaluation due after 1/5/ submitted to
before 98 department
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98...................... 1,897 (data rec'd 3/31/98).. 85% of Re-Evaluations due... 7/15/98
7/1 to 9/30/98...................... 1,012 (data rec'd 3/31/98).. 75% of Re-Evaluations due... 10/15/98
10/1 to 12/31/98.................... 253 (data rec'd 3/31/98).... 60% of Re-Evaluations due... 1/15/99
1/1 to 3/31/99...................... 0........................... 45% of Re-Evaluations due... 4/15/99
4/1 to 6/30/99...................... 0........................... 30% of Re-Evaluations due... 7/15/99
7/1 to 9/30/99...................... 0........................... 15% of Re-Evaluations due... 10/15/99
10/1 to 12/31/99.................... 0........................... 5% of Re-Evaluations due.... 1/15/00
1/1 to 3/31/00...................... 0........................... 0........................... 4/15/00
4/1 to 6/30/00...................... 0........................... 0........................... 7/15/00
7/1 to 9/30/00...................... 0........................... 0........................... 10/15/00
10/1 to 12/31/00.................... 0........................... 0........................... 1/15/01
1/1 to 3/31/01...................... 0........................... 0........................... 4/15/01
----------------------------------------------------------------------------------------------------------------
Topic 2.0: Related Services
Current Status: As of January 5, 1998, DCPS has not provided
related service in accordance with students' IEP to 1,055 (data
received March 31,1998) students.
DCPS currently lacks a special education student information
system, and consequently can not provide adequate baseline data
regarding the total number of students (zz) who do not receive all of
the related services called for within their IEPs. DCPS will capture
[[Page 41377]]
this baseline data, and provide it to the Department of Education no
later than March 31, 1998, using the following methods.
* DCPS' related service (``Intervention'') staff members
will, with assistance from school principals, identify the list of all
students entitled to receive a related service, and record all of those
students' names in a format which the Special Education Division
provides (the format is included as Attachment P to this Compliance
Agreement).
* Twice each month, intervention staff will record, on the
provided format, the names of those students to whom they have provided
service/therapy, the names of students who missed service/therapy due
to absences, and the names of students (if any) who could not be
scheduled to receive related service/therapy due to inadequate
schedule/time.
* Each related service (``Intervention'') staff member will
total the number of such students who do not receive service/therapy
due to inadequate schedule/time, and report the result to their Special
Education Division supervisor. Each supervisor will summarize the
reports for all intervention staff, and the Deputy Director for Service
Delivery will summarize the data for DCPS as a whole.
* When a new student is placed in a school's special
education program, that student shall be added to the list of students
entitled to receive related services at that school, consistent with
the services called for in the student's IEP. Similarly, when a student
transfers, graduates or withdraws, the student's name shall be deleted
from the list. Such additions and deletions shall be summarized in each
report by each Intervention staff member.
The number of students who could not be scheduled to receive
related service/therapy due to inadequate related service provider
schedule/time shall be reported initially to the Department of
Education, and shall form the source of data from which will be used
for the reports described below. An initial report of all students who
are not receiving all related services specified within their IEPs will
be made prior to March 31, 1998, and those students will make up the
initial count of students shown as ``zz'' in Table C below.
Goal 2.0
To ensure that all children with disabilities receive the related
services specified in their individual education program as required by
section 602(8) of Part B of IDEA and 34 CFR 300.350.
Overall Measurable Outcomes and Verification for Goal 2.0 (Related
Services)
(a) Within the first week of each month, DCPS will prepare an
internal report for each type of related service with the following
content:
i. Children, by name, whose IEPs call for a related service, but
who are not yet assigned to the schedule of a specific DCPS provider of
that service (a child whose IEP calls for two different related
services, but who is not receiving either service, will appear
separately on the reports for each of those related services). These
children will be listed in order of the date on which their original or
updated IEP calling for the service was signed.
ii. Children, by name, who, for whatever reason, have been removed
from the schedule of a DCPS related service provider (for example,
because of the resignation of the service provider, or because of the
transfer of the student away from the school where that provider works,
etc.), and who have not immediately been reassigned to the schedule of
another service provider.
iii. Children, by name, who within the previous month have been
assigned to the schedule of a specific DCPS service provider (and who
consequently have been removed from the above listing of unassigned
children).
iv. DCPS related service providers who are scheduled to serve
children for fewer hours per week than is provided for by DCPS policy
for that service, and who consequently may be available to serve
additional children.
(b) DCPS shall make these internal reports available to OSEP if
requested by that office.
(c) Within fifteen calendar days following the end of each
reporting period, DCPS will provide to the Department a report with the
following content:
i. The number of children who are not receiving all the related
services specified in their IEP as of the start of the reporting
period;
ii. The number of children identified during the reporting period
as not receiving all the related services specified in their IEPs;
iii. The number of children that, during the reporting period,
began receiving all the related services specified in their IEPs; and
iv. The number of children not receiving all related services
specified in their IEPs at the end of the reporting period.
(d) Table C sets out, on a periodic basis, DCPS'' commitment for
incremental reduction to zero of the number of children not receiving
all the related services specified in their IEPs. For the number of
children who were determined eligible for special education prior to
January 5, 1998, but not receiving all of the related services
specified within their IEPs, this number will be reduced to zero by
December 31, 1999. For the number of students who were determined
eligible for special education on or after January 5, 1998, but not
receiving all of the related services specified within their IEPs, this
number will be reduced to zero by March 31, 2000. DCPS is obligated not
only to meeting this final commitment to reduce the number of children
not receiving required related services to zero, but also to meeting
all of the periodic commitments for reducing the number set out in
Table C.
(e) By April 30, 1998, DCPS must establish, and submit to OSEP for
approval, a method to verify that those children who have been assigned
to the schedule of a specific DCPS service provider are in fact
receiving the required services.
Table C.--DCPS Periodic Reports to the Department Required Levels and Time Lines for Achieving and Documenting
Progress Toward Full Compliance (Related Services)
----------------------------------------------------------------------------------------------------------------
Number of children not Number of children not
receiving related services receiving related services Date report
Date of reporting period provided for in their IEP provided for in their IEP submitted to
(students eligible prior to program (students eligible department
1/5/98) on or after 1/5/98)
----------------------------------------------------------------------------------------------------------------
1/5 to 6/30/98...................... 950 (data rec'd 3/31/98).... 95% of newly eligible 7/15/98
students.
7/1 to 9/30/98...................... 791 (data rec'd 3/31/98).... 85% of newly eligible 10/15/98
students.
10/1 to 12/31/98.................... 580 (data rec'd 3/31/98).... 70% of newly eligible 1/15/99
students.
1/1 to 3/31/99...................... 369 (data rec'd 3/31/98).... 55% of newly eligible 4/15/99
students.
4/1 to 6/30/99...................... 211 (data rec'd 3/31/98).... 40% of newly eligible 7/15/99
students.
[[Page 41378]]
7/1 to 9/30/99...................... 106 (data rec'd 3/31/98).... 25% of newly eligible 10/15/99
students.
10/1 to 12/31/99.................... 0........................... 10% of newly eligible 1/15/00
students.
1/1 to 3/31/00...................... 0........................... 0........................... 4/15/00
4/1 to 6/30/00...................... 0........................... 0........................... 7/15/00
7/1 to 9/30/00...................... 0........................... 0........................... 10/15/00
10/1 to 12/31/00.................... 0........................... 0........................... 1/15/01
1/1 to 3/31/01...................... 0........................... 0........................... 4/15/01
----------------------------------------------------------------------------------------------------------------
Topic 3.0: Due Process Hearing Timeliness
Current Status: For a significant portion of due process hearing
requests received by DCPS on behalf of students with disabilities, a
final decision is not issued within 45 days after receipt of the
request. As of January 5, 1998, of the 655 hearing requests that had
been received, a final decision had not been issued within 45 days of
the request in 482 cases.
Goal 3.0
To ensure that a final decision is issued, not later than 45
calendar days after the receipt of a request for a due process hearing
as required by 34 CFR 300.512, except in cases where the requester
voluntarily withdraws the request (including, but not limited to,
instances of withdrawal in favor of mediation, because the issues
motivating the request were addressed, and/or where a settlement has
been reached) and/or where a hearing officer grants a request for an
extension by a party.
Overall Measurable Outcomes and Verifications for Goal 3.0
(a) Within the first week of each month, DCPS will prepare an
internal report with the following content:
i. Name of each child for whom a due process hearing has been
requested, and the date that the request was received in writing.
ii. Name of each child for whom a due process hearing was held and
a final decision was issued, and the date of the final decision.
iii. Name of each child for whom a request for a due process
hearing was withdrawn, the date of the withdrawal, and a brief note as
to disposition.
(b) DCPS shall make these internal reports available to OSEP if
requested by that office.
(c) Within fifteen calendar days following the end of each
reporting period, DCPS will prepare and submit a report to the
Department which includes:
i. The number of pending hearing requests, as of the start of the
reporting period, for which a final decision has not been issued within
45 days of the request;
ii. The number of pending hearing requests which, during the course
of the reporting period, are added to the list of hearing requests for
which a final decision has not been issued within 45 days of the
request;
iii. The number of final decisions issued during the reporting
period for hearing requests that have been pending for more than 45
days;
iv. The number of pending hearings requests, at the conclusion of
the reporting period, for which a final decision has not been issued
within 45 days of the request.
(d) Table D sets out, on a periodic basis, DCPS' commitment for
incremental reduction to zero of the number of due process hearing
requests which have been pending for more than 45 days, which have not
been withdrawn, and for which a final decision has not been issued.
DCPS is committed to reducing this number to zero by December 31, 1998.
DCPS is not only committed to meeting this final commitment, but also
to meeting all of the periodic commitments for reducing that number set
out in Table D.
(e) DCPS must submit to the Department, by March 31, 1998, the
mediation procedures that it has developed under Section VII.F of its
Strategic Plan to meet the requirements of section 615(e) of Part B of
IDEA.
Table D.--DCPS Periodic Reports to the Department: Required Levels and
Time Lines for Achieving and Documenting Progress Toward Full Compliance
(Due Process Hearing Timeliness)
------------------------------------------------------------------------
Number of
hearing
requests which
have been
pending for 45
days or more, Date report
Date of reporting period have not been submitted to
withdrawn, and department
for which a
final decision
has not been
issued
------------------------------------------------------------------------
1/5 to 6/30/98.......................... 361 7/15/98
7/1 to 9/30/98.......................... 217 10/15/98
10/1 to 12/31/98........................ 0 1/15/99
1/1 to 3/31/99.......................... 0 4/15/99
4/1 to 6/30/99.......................... 0 7/15/99
7/1 to 9/30/99.......................... 0 10/15/99
[[Page 41379]]
10/1 to 12/31/99........................ 0 1/15/00
1/1 to 3/31/00.......................... 0 4/15/00
4/1 to 6/30/00.......................... 0 7/15/00
7/1 to 9/30/00.......................... 0 10/15/00
10/1 to 12/31/00........................ 0 1/15/01
1/1 to 3/31/01.......................... 0 4/15/01
------------------------------------------------------------------------
Objectives for Goal 3.0: Due Process Hearing Time Line
3.1 Reduce the need for hearings by developing new programs,
improving evaluations and improving related service delivery.
3.2 Reduce demand for hearing requests by establishing a new
mediation process.
3.3 Increase accountability for hearing time lines by
computerizing records and providing ongoing information to DCPS'' Legal
and Special Education Division.
Topic 4.0: Hearing Determination Implementation
Current Status: As of January 5, 1998, 332 student hearing
determinations remained outstanding without having been fully
implemented within the time frame set out by the hearing determination.
Goal 4.0
To ensure that independent hearing officer determinations are
implemented within the time-frame prescribed by the hearing
determination, or the different time-frame agreed to in writing by the
parent or guardian and submitted to the hearing officer as required by
sections 615 (f) and (i) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 4.0
(a) Within the first week of each month, DCPS will prepare an
internal report:
i. Date each due process hearing decision was filed, and the case
number.
ii. Type of hearing (e.g., denial, appropriateness, etc.).
iii. Actions required and Time lines set out by the determination.
iv. Date each action was completed, or a notation that the action
remains incompleted. Actions which remain uncompleted beyond the date
required within the order will be highlighted within the report.
v. Date the hearing order was fully implemented (i.e., all actions
completed). Note that all hearing cases will continue to be reported
until it has been reported that the hearing order was fully
implemented.
vi. The number of cases in which a different time-frame is agreed
to in writing by the parent or guardian and submitted to the hearing
officer and DCPS'' basis for requesting a different time-frame.
(b) DCPS shall make these internal reports available to OSEP if
requested by that office.
(c) Within fifteen calendar days following the end of each
reporting period, DCPS will prepare and submit a report to the
Department that includes:
i. The number of hearing officer determinations, as of the start of
the reporting period, that have not been fully implemented;
ii. The number of hearing officer determinations which, during the
course of the reporting period, are identified as not having been fully
implemented;
iii. The number of hearing officer determinations which, during the
course of the reporting period, have been fully implemented;
iv. The number of hearing officer determinations which, as of the
conclusion of the reporting period, have not been fully implemented.
(d) Table E sets out, on a periodic basis, DCPS'' commitment for
incremental reduction to zero of the number of hearing officer
determinations that have not been fully implemented consistent with the
hearing decision. DCPS is committed to reducing this number to zero by
December 31, 1998. DCPS is obligated not only to meeting this final
commitment, but also to meeting all of the periodic commitments for
reducing the numbers set out in Table E.
Table E.--DCPS Periodic Reports to the Department: Required Levels and
Time Lines for Achieving and Documenting Progress Toward Full Compliance
(Hearing Determination Implementation)
------------------------------------------------------------------------
Number of
hearing Date report
officer period
Date of reporting determinations submitted to
not fully department
implemented
------------------------------------------------------------------------
1/5 to 6/30/98.......................... 266 7/15/98
7/1 to 9/30/98.......................... 199 10/15/98
10/1 to 12/31/98........................ 0 1/15/99
1/1 to 3/31/99.......................... 0 4/15/99
4/1 to 6/30/99.......................... 0 7/15/99
[[Page 41380]]
7/1 to 9/30/99.......................... 0 10/15/99
10/1 to 12/31/99........................ 0 1/15/00
1/1 to 3/31/00.......................... 0 4/15/00
4/1 to 6/30/00.......................... 0 7/15/00
7/1 to 9/30/00.......................... 0 10/15/00
10/1 to 12/31/00........................ 0 1/15/01
1/1 to 3/31/01.......................... 0 4/15/01
------------------------------------------------------------------------
Objectives for Goal 4.0: Hearing Order Determination Implementation
4.1 Reduce the need for hearings (and thus the need for
implementing hearing determinations) by developing new programs and
initiatives and by implementing a mediation process.
4.2 Improve implementation of assessment-related hearing order
determinations (HODs) by prioritizing evaluations, reorganizing staff
and supervision, and establishing a central assessment scheduling/
tracking method.
4.3 Increase accountability for implementing order determinations
by computerizing tracking and by summarizing status in a monthly
report.
Topic 5.0: Child Find
Current Status: DCPS is not complying with its obligation to
identify and locate all children with disabilities residing in the
District of Columbia, including children with disabilities attending
private schools, regardless of severity of their disabilities, who are
in need of special education and related services.
Goal 5.0
To establish a Child-Find system which successfully identifies and
locates all children with disabilities, including those transitioning
from Part H programs, who are in need of special education and related
services as required by section 612(a)(3) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 5.0: Child Find
(a) Within fifteen calendar days following the end of each
reporting period as set out in Table A above, DCPS will provide to the
Department a report that includes:
i. A listing of the inquires received through DCPS' Child Find
hotline, and a summary of the other contacts made by Child Find staff,
including the Child Find Liaison, and the screening aides; and
ii. Data on the number of preschool students identified and served.
(b) DCPS shall submit a report to OSEP every six months, from the
effective date of this Compliance Agreement, on the activities it has
carried out during the reporting period to implement the objectives of
Goal 5.0. The report must include:
(i) For the city wide screening event, identified in section III.C
of the Strategic Plan, the number and location of screening sites, the
kinds of screening tools that were used, and the number and ages of
children screened; and
(ii) For the training provided under section VII.G of the Strategic
Plan, the dates and locations of the training sessions, the number of
participants, and curriculum for the training.
Please see Attachment Q for the District of Columbia's Policy and
Procedure for transition form Part H to Part B programs, and form for
recording child-find inquires.
Objective for Goal 5.0: Child Find
5.1 Build DCPS' network and capability for identifying children
who may need special education services by:
a. Implementing the initiatives outlined in DCPS' State Plan for
IDEA; and
b. Assigning a Child Find Liaison, Early Childhood Coordinator,
Transition Facilitator and screening aides.
5.2 Increase school staff understanding of responsibilities and
understanding of available resources for child find/outreach, screening
and assessment procedures by developing and disseminating a concise
flowchart and description.
5.3 Increase sensitivity and familiarity of instructional support
staff regarding students with disabilities and their instructional
needs through training.
5.4 Continue to expand early childhood program to serve additional
preschool children.
5.5 Increase awareness of parents of all children over the age of
2.0 years who are enrolled in DHS Early Intervention Programs about
their options and rights to receive services from DCPS under IDEA Part
B.
5.6 Develop policies and procedures to ensure a smooth transition
for those individuals participating in the early intervention program
under Part H of the IDEA who will participate in preschool programs,
including a method for ensuring that when a child turns three, an IEP
or IFSP has been developed and implemented by the child's third
birthday as required by section 612(a)(9) of Part B of IDEA.
Topic 6.0: Restrictiveness of Placements
Current Status: Currently, DCPS is not complying with its
obligation to provide children with disabilities with the least
restrictive placement appropriate to their individual needs.
Specifically, Board of Education rules have been interpreted to require
that the restrictiveness of a students' placement is determined by the
number of hours of special education services required by the student.
For example, a student who needs 32 hours of service each week is
typically served only in a separate school.
Goal 6.0
To ensure that children with disabilities are placed in the least
restrictive environment appropriate to their individual needs as
required by section 612(a)(5)(A) of Part B of IDEA and 34 CFR 300.550-
300.556 and that the restrictiveness of a student's placement (such as
a self-contained class or a separate school placement) is not
determined solely by the number of hours of service each week which is
called for in the student's individualized education program.
[[Page 41381]]
Overall Measurable Outcomes and Verification for Goal 6.0:
Restrictiveness of Placements
(a) DCPS will provide the Department with a draft copy of its
revised Board of Education Rules by no later than April 1, 1998 and its
final rule by no later than June 30, 1998.
(b) DCPS will, on October 1 of each year of this agreement,
identify for the Department schools which have been identified as
inclusion initiative schools, and those which serve as local school
``satellites'' for program and services which had previously been
offered in more restrictive, ``city-wide'' settings.
(c) DCPS will, on June 1 of each year of this agreement, provide
the Department with a list of placements that are available and that
represent each type of placement on the continuum as required by 34 CFR
300.551. DCPS must identify sufficient existing accessible locations to
provide a continuum of appropriate placements for all children with
disabilities. If DCPS is unable to identify sufficient existing
accessible locations to provide a continuum, it must develop and submit
a plan, on June 1, of each year of the agreement, to ensure accessible
locations by September 1 for each type of placement on the continuum.
(d) DCPS will submit data on the number of students in each type of
placement on the continuum on November 20, 1998, November 20, 1999, and
November 20, 2000.
(e) DCPS will submit a report to OSEP every six months, from the
effective date of this Compliance Agreement, on the activities it has
carried out during the reporting period to implement Goal 6.0.
Objectives for 6.0: Restrictiveness of Placements
6.1 Review and revise, if necessary, DCPS' continuum of services
in accordance with applicable regulations
6.2 Increase schools' abilities to serve students in less
restrictive setting by:
a. Implementing DCPS' inclusion initiative;
b. Developing and expanding ``regional schools'' abilities to serve
high school age students with learning disabilities and elementary age
students with emotional disturbance; and
c. Developing and expanding other programs to serve under-served
students.
6.3 Increase school system personnel sensitivity to children with
disabilities by providing broad training/exposure for all school system
staff.
6.4 At IEP meetings, DCPS will review the appropriateness of each
student's placement and staff will be trained on the proper methods for
determination of the least restrictive environment consistent with OSEP
memorandum 95-9.
Topic 7.0: State Complaint Procedures
Current Status: DCPS is not implementing its written procedures for
receiving and resolving any complaint that DCPS or a public agency is
violating Part B or its regulations within 60 days.
Goal 7.0
To implement state complaint procedures for receiving and resolving
any complaint that DCPS or a public agency is violating Part B or its
regulations as required by 34 CFR 300.660-300.662.
Overall Measurable Outcomes and Verification for Goal 7.0: State
Complaint Procedures
(a) DCPS must submit verification of implementation of its state
complaint procedures by March 31, 1998.
(b) DCPS must develop a plan to ensure that all parents and other
interested individuals are informed regarding complaint management
procedures. The plan must include how frequently parents and other
individuals will be informed and the materials to be used. DCPS must
submit the material to be used to inform parents and other interested
individuals about its complaint management procedures by March 31,
1998.
(c) DCPS must submit quarterly reports to OSEP that include a copy
of its complaint log verifying that complaints are resolved within 60
days except where there has been an extension due to an exceptional
circumstance related to that complaint. For each complaint for which
DCPS has determined that an exceptional circumstance exists, DCPS must
submit to OSEP an explanation of the exceptional circumstance. Where
DCPS finds that the allegations contained in a complaint are true, and
that noncompliance with regard to an IDEA requirement exists, it must
ensure that appropriate corrective action is taken in a timely manner.
These quarterly reports are due on June 30, 1998, September 30, 1998,
December 31, 1998 and March 31, 1999.
(d) On a quarterly basis, DCPS must submit to OSEP a sample of
complaint files for review. OSEP will select the files to be reviewed
based on the log of complaints submitted above. These files must be
submitted on July 15, 1998, October 15, 1998, January 15, 1999 and
April 15, 1999. DCPS is responsible for ensuring that each file
contains a written decision to the complainant that addresses each
allegation in the complaint. DCPS must also maintain and make available
for OSEP review documentation demonstrating that required corrective
actions have been implemented in a timely manner.
Topic 8.0: Transition
Current Status: DCPS is not complying with its obligation to ensure
that no later than age 16, and at a younger age, if determined
appropriate, a statement of needed transition services is included in
each student's IEP and if the purpose of the IEP meeting is
consideration of transition services that all required participants
have been invited and participate and that a notice containing all
required content is issued.
Goal: 8.0
Beginning no later than age 16, and at a younger age, if determined
appropriate, a statement of needed transition services is included in
each student's IEP as required by 34 CFR 300.346(b) and if the purpose
of the IEP meeting is consideration of transition services, that all
required participants have been invited and participate as required by
34 CFR 300.344(c) and that a notice containing all required content is
issued as required by 34 CFR 300.345(b)(2).3
---------------------------------------------------------------------------
\3\ Implementation of the procedure to include a statement of
transition service needs beginning at age 14 is required for IEPs
beginning July 1, 1998.
---------------------------------------------------------------------------
Overall Measurable Outcomes and Verification for Goal 8.0: Transition
(a) DCPS must develop effective procedures to ensure that (1)
beginning at age 14, and younger if appropriate, a statement of
transition service needs or beginning at age 16 (or younger, if
determined appropriate by the IEP team) a statement of needed
transition services is included in each student's IEP as required by
section 614(d)(1)(A)(vii) of Part B of IDEA; (2) the student will be
invited to the IEP meeting, and if the student does not attend, the
student's preferences and interests will be considered; (3) an
individual determination will be made as to participating agency(ies)
likely to be responsible for providing or paying for transition
services and a representative of each participating agency(ies) will be
invited to the IEP meeting. If the agency representative does not
attend, other steps will be taken to ensure the participation of the
agency in the planning of any transition services; and (4) the notice
utilized by public agencies
[[Page 41382]]
to inform parents and other individuals (e.g., students and
participating agencies) contains all required content.
(b) DCPS must submit quarterly reports to OSEP describing the
progress it has made in ensuring compliance with the Part B transition
requirements. These quarterly reports must be submitted on June 30,
1998, September 30, 1998, December 31, 1998, and March 31, 1999.
(c) On a quarterly basis, DCPS must submit a sample of IEPs and
accompanying notices for students age 16 and older. OSEP will select
the IEPs to be reviewed. These IEPs must be submitted on July 15, 1998,
October 15,1998, January 15, 1999, and April 15, 1999.
Topic 9.0: State Advisory Panel
Current Status: DCPS has not established a State advisory panel
which meets the requirements of section 612(a)(21) of Part B of IDEA.
Goal 9.0
Establish a State advisory panel which meets the requirements of
section 612(a)(21) of Part B of IDEA.
Overall Measurable Outcomes and Verification for Goal 9.0: State
Advisory Panel
(a) DCPS must establish a State Advisory Panel which meets the
requirements of section 612(a)(21) of Part B of IDEA. DCPS must submit
by May 1, 1998 documentation that a properly constituted Advisory Panel
has been established and is meeting to carry out the duties described
in 612(a)(21)(D). Please see Attachment T for a description of the
membership and appointing authority for the State Advisory Panel.
Topic 10.0: Surrogate Parent Procedures
Current Status: DCPS is not implementing its procedures to protect
the rights of the child whenever the parents of the child are not
known, the agency cannot, after reasonable efforts, locate the parents,
or the child is a ward of the State.
Goal 10.0
To implement procedures that meet the requirements of section
615(b)(2) of Part B of IDEA to protect the rights of the child whenever
the parents of the child are not known, the agency cannot, after
reasonable efforts, locate the parents, or the child is a ward of the
State.
Overall Measurable Outcomes and Verification for Goal 10.0: Surrogate
Parent Procedures
(a) DCPS must implement its procedures to protect the rights of the
child whenever the parents of the child are not known, the agency
cannot, after reasonable efforts, locate the parents, or the child is a
ward of the State, including the assignment of a individual (who is not
an employee of the State education agency, or any other agency that is
involved in the education or care of the child) to act as a surrogate
for the parents. DCPS must submit verification of implementation of its
surrogate parent procedures by May 1, 1998.
DCPS has engaged a contractor to recruit, train, and support
surrogate parents. Please see Attachment U for DCPS' work plan for
recruiting and training surrogate parents. As required, DCPS will have
final procedures for assignment of surrogate parents, and will submit
verification of their implementation by May 1, 1998.
Topic 11.0: Provision of Special Education to Limited English
Proficient Students
Current Status: DCPS does not have sufficient numbers of personnel
available to meet the needs of students with disabilities who are
limited English proficient.
Goal 11.0
DCPS must ensure that sufficient numbers of personnel are available
to meet the needs of limited English proficient students.
Overall Measurable Outcomes and Verification for Goal 11.0: Provision
of Special Education to Limited English Proficient Students
(a) DCPS must ensure that sufficient numbers of personnel are
available to meet the needs of students with disabilities who are
limited English proficient (LEP). Such personnel must include special
education teachers, psychologists, related service providers, and other
staff needed to provide special education and related services and to
conduct evaluations and reevaluations for these students. By April 30,
1998, DCPS must submit a status report of its efforts to ensure
sufficient numbers of staff to meet the needs of LEP students. To the
extent that the report shows that DCPS does not have sufficient numbers
of personnel, a plan to meet this goal must accompany the report. In
the event that such a plan is necessary, the plan must be fully
implemented no later than September 30, 1998.
Other Conditions
In addition to all of the terms and conditions set forth above,
DCPS agrees that its continued eligibility to receive Part B funds is
predicated upon compliance with statutory and regulatory requirements
of that program, that have not been addressed by this Agreement,
including the IDEA Amendments of 1997. If DCPS fails to comply with any
of the terms and conditions of the Compliance Agreement, the Department
may consider the Agreement no longer in effect and may take any action
authorized by law, including the withholding of funds or the issuance
of a cease and desist order. 20 U.S.C. Sec. 1234f(d).
For the District of Columbia Public Schools:
Dated: March 16, 1998.
General Julius W. Becton, Jr.,
Chief Executive Officer.
For the United States Department of Education:
Dated: March 10, 1998.
Honorable Richard W. Riley,
Secretary of Education.
Date this Compliance Agreement becomes effective (Date of
Secretary Riley's Written Decision and Findings): March 10, 1998.
Expiration Date of this Agreement: March 10, 2001.
[FR Doc. 98-20655 Filed 7-31-98; 8:45 am]
BILLING CODE 4000-01-P