[Federal Register: February 23, 2000 (Volume 65, Number 36)]
[Notices]
[Page 9089-9176]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe00-103]
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Part IV
Department of Education
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Office of Special Education and Rehabilitative Services; Assistance to
States for the Education of Individuals With Disabilities; Notice
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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 December 10, 1999,
the Secretary entered into a Compliance Agreement with the Virgin
Islands Department of Education (VIDE) 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: Maral Taylor, U.S. Department of
Education, Office of Special Education Programs, Mary E. Switzer
Building, 400 Maryland Avenue SW, Washington DC, 20202. Telephone:
(202) 205-9181. Individuals who use a telecommunications device for the
deaf (TDD) may call the TDD number at (202) 205-5388.
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 VIDE to address their compliance with the
requirements of Part B of the Individuals with Disabilities Education
Act (IDEA).
I. Introduction
The United States Department of Education (the Department) has
determined, pursuant to 20 U.S.C. 1234c, that the Virgin Islands
Department of Education (VIDE) has failed to comply substantially with
the requirements of Part B of the Individuals with Disabilities
Education Act (Part B), 20 U.S.C. 1401, 1411-1419.\1\
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\1\ Under the Department of Education Organization Act (DEOA),
Congress transfers administration of Part B from the Commissioner of
Education to the Secretary of Education 20 U.S.C. 3441(a)(1) and
(a)(2)(H). Section 20, of the DEOA, 20 U.S.C. 3417, in turn
delegates responsibility for Part B to the Assistant Secretary for
Special Education and Rehabilitative Services. The Office of Special
Education Programs (OSEP), which is part of Office of Special
Education and Rehabilitative Services, in the office within the
Department is primarily responsible for administering Part B 20
U.S.C. 1402(a).
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On June 29, 1998, the Department issued a final monitoring report
that documented serious problems with respect to the VIDE's compliance
with Part B on the provision of a free appropriate public education in
the least restrictive environment to children with disabilities in the
Virgin Islands. As a result of these findings, the Department declared
VIDE a ``high risk'' grantee and imposed special conditions on its
fiscal year 1998 grant award.\2\ The Department found that VIDE:
continues not to ensure provision of a free appropriate public
education in the least restrictive environment to students with
disabilities. Specifically, VIDE has exhibited a continued failure
(1) to provide needed related services as set forth on
individualized education programs (IEPs); (2) to ensure personnel in
needed service areas; (3) to provide triennial evaluations in a
timely manner; and (4) to ensure due process protections. August 28,
1998 Letter from Judith Heumann, Assistant Secretary for Special
Education and Rehabilitative Services, to Liston Davis, Commission
of Education, VIDE (August 28, 1998 Letter).
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\2\ The Department's authority to declare a grantee ``high
risk'' and impose special conditions is set out at 34 80.12.
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The special conditions required VIDE to provide the Department,
among other things, with monthly reports on the Virgin Islands' efforts
to come into compliance with Part B. Those reports did not demonstrate
significant progress by VIDE in meeting the requirements of Part B. As
a consequence, the Department concluded, pursuant to 20 U.S.C. 1234c,
that VIDE is not complying with Part B. On April 8, 1999, the
Department proposed to VIDE a voluntary Compliance Agreement as a means
of ensuring a continued flow of Part B funds to the Virgin Islands
while a structured plan to come into full compliance with that statute
is implemented.
April 8, 1999 letter from Thomas Hehir, then Director of the Office
of Special Education Programs, to Ruby Simmonds, D.A., then Acting
Commissioner of Education, Virgin Islands Department of Education
(April 8, 1999 Letter).
The purpose of a Compliance Agreement is to bring a ``recipient
into full compliance with the applicable requirements of law as soon as
feasible.'' 20 U.S.C. 1234f(a). In accordance with the requirements of
20 U.S.C. 1234f(b), public hearings were conducted by Department
officials in the Virgin Islands at St. Thomas, on May 18, 1999, and St.
Croix, on May 19, 1999. Witnesses representing VIDE, affected students
and parents, and other concerned organizations testified at this
hearing on the question of whether the Department should grant VIDE's
request to enter into a Compliance Agreement. The Department has
reviewed this testimony, the Compliance Agreement VIDE has signed, and
other relevant materials.\3\ On the basis of this evidence, the
Department concludes, and issues written findings as required by 20
U.S.C. 1234f(b)(2), that VIDE has met its burden of establishing the
following: (1) That compliance by VIDE with Part B is not feasible
until a future date, and (2) that VIDE will be able to carry out the
terms and conditions of the Compliance Agreement it has agreed to sign
and come into full compliance with Part B within three years of the
date of this decision. During the effective period of the Compliance
Agreement, three years from the date of this decision, VIDE 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 VIDE 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 action authorized under the law, including the
withholding of Part B funds from VIDE or referral to the Department of
Justice. At the end of the effective period of the Compliance
Agreement, VIDE must be in full compliance with Part B in order to
[[Page 9091]]
maintain its eligibility to receive funds under that program. 20 U.S.C.
1234c.
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\3\ A copy of the Compliance Agreement, which was prepared by
VIDE in conjunction with representatives of the Department, is
appended to this decision as Appendix A.
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II. Relevant Statutory and Regulatory Provisions
A. Part B of the Individuals With Disabilities Education Act
Part B, formerly Part B of the Education of the Handicapped Act,
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).\4\ Part B provides Federal financial assistance
to those State educational agencies (SEAs) that have in effect a policy
to ensure that ``(a) free appropriate public education (FADE) is
available to all children with disabilities residing in the State
between the ages of three and twenty-one * * *'' 20 U.S.C.
1412(a)(1).\5\ FAPE is defined as special education and related
services that:
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\4\ Congress first addressed the problem of educating
individuals with disabilities in 1966 when it amended the Elementary
and Secondary Education Act of 1965 for the purpose of ``assisting
the States in the initiation, expansion, and improvement of programs
and projects for the education of handicapped children.'' Pub. L.
89-750, section 161, 80 Stat. 1204. The program was repealed in 1970
by the Education of the Handicapped Act, Pub. L. 91-230, 84 Stat.
175, Part B of which established a grant program similar in purpose
to that of the repealed legislation. Spurred by two district court
decisions holding that children with disabilities should be given
access to a public education, Mills v. District of Columbia Board of
Education, 348 F. Supp. 866 (D.D.C. 1972), and Pennsylvania Ass'n
for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp.
1257 (E.D. Pa. 1971), in 1974 Congress greatly increased Federal
funding for education of individuals with disabilities and for the
first time required recipient States to adopt a ``goal of providing
full educational opportunities to all handicapped children.'' Pub.
L. 93-380, 88 Stat. 579, 583. This statute was recognized as an
interim measure only, giving Congress an ``additional year in which
to study what if any additional Federal assistance (was) required to
enable the States to meet the needs of handicapped children.'' H.R.
Rep. No. 94-332, at 4. The study led to the enactment of Part B.
Part B was recently amended by the Individuals with Disabilities
Education Act Amendments of 1997, Pub. L. 105-17.
\5\ Part B defines ``child with disabilities'' 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. 1401(3)(A). For a child
aged 3 through 9, the term ``child with disabilities * * * may, at
the discretion of the State and the local educational agency,
include a child experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic instruments and
procedures, in one or more of the following areas: Physical
development, cognitive development, communication development,
social or emotional development or adaptive development; and who, by
reason thereof, needs special education and related services.'' 20
U.S.C. 1401(3)(B).
(a) Are provided at public expense, under public supervision and
direction, and without charge;
(b) Meet the standards of the SEA, including the requirements of
this part;
(c) Include preschool, elementary school, or secondary school
education in the State; and
(d) Are provided in conformity with an individualized education
program (IEP) that meets the requirements of Secs. 300.340-300.350.
34 CFR 300.13.
In order to ensure that FAPE is provided, a State must ensure that
the Part B requirements regarding evaluation, reevaluation, related
services, timeliness and implementation of due process decisions, child
find, and the least restrictive environment are met. Part B requires
VIDE to ensure that:
All children with disabilities residing in the State (or
territory), 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, located, and evaluated * * *
20 U.S.C. 1412(a)(3)(A). Moreover, a child with a disability cannot
receive an initial special education placement until an initial
evaluation has been performed in accordance with section 614(a)(1) (B)
and (C) of Part B. 20 U.S.C. 1414(a)(1)(A).\6\ All children with
disabilities must be placed in the least restrictive environment
appropriate to their individual needs. 20 U.S.C. 1412(a)(5)(A) and 34
CFR Secs. 300.500-300.556. After initial evaluation and placement,
children with disabilities must be reevaluated at least every three
years. 20 U.S.C. 1414(a)(2).
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\6\ Part B does not set forth a specific standard for conducting
initial evaluations within a reasonable period of time, the
determination or such standard is reserved to individual States,
Commonwealths, and territories, and each of these entities must
ensure that each educational program for their children with
disabilities meets the education standards of the State,
commonwealth, or territory. VIDE commits itself in the Compliance
Agreement to providing a child with an initial evaluation and a
determination of eligibility for special education and related
services within 45 school days of referral. See Appendix A,
Compliance Goal Statement 1.1a (Expected Outcomes).
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
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disabling conditions in children.
20 U.S.C. 1401(22). The IEP for each child with a disability must
specify the related services that are to be provided. 34 CFR
300.347(a)(3).
VIDE must also ensure that its due process system, which is a
critical component of IDEA designed to protect the rights of children
and their parents, meets the requirements of Part B. Because VIDE has a
single tier due process system, a final decision must be issued no
later than 45 days after receipt of a request for a due process
hearing. 34 CFR 300.511.
Finally, VIDE is responsible for ensuring that the requirements of
Part B are carried out by exercising general supervisory authority over
the provision of special education and related services in the Virgin
Islands. The Part B regulations specifically provide that:
(a) The SEA is responsible for ensuring--
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities
administered within the State, including each program administered
by any other State or local agency--
(i) Is under the general supervision of the persons responsible
for educational programs for children with disabilities in the SEA;
and
(ii) Meets the education standards of the SEA (including the
requirements of this part).
34 CFR 300.600. This requirement must be read in conjunction with
VIDE's responsibility under the General Education Provisions Act
(GEPA), at 20 U.S.C. 1232d(b)(3), to adopt and use proper methods of
administering the Part B program, including, among other requirements:
(1) Monitoring of agencies, institutions, and organizations responsible
for carrying out Part B; (2) the enforcement of the obligations imposed
on those agencies, institutions, and organizations under Part B; (3)
providing technical assistance, where necessary, to such agencies,
institutions, and organizations; and (4) the correction of deficiencies
in program operations that are identified through monitoring or
evaluation.
B. Department's Authority To Enter Into a Compliance Agreement
Part B authorizes the Department, if a State fails to comply
substantially with the requirements of that statute, either to withhold
funds from that State or
[[Page 9092]]
refer the matter to the Department of Justice. 20 U.S.C. 1416(a). GEPA
provides the Department with additional options for dealing with a
grant recipient that it concludes is ``failing to comply substantially
with any requirements of law applicable to such funds.'' 20 U.S.C.
1234c. These remedies include issuing a cease and desist order. 20
U.S.C. 1234c. As an alternative to withholding funds issuing a cease
and desist order, or referral to the Department of Justice, 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. 1234f. In this instance, the Department has decided to
address VIDE's failure to comply substantially with the requirements of
Part B through a Compliance Agreement.
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.'' 20 U.S.C. 1234f(a). Before entering into a Compliance
Agreement, 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. 1234f(b)(1). If, on the
basis of all the evidence available to it, the Secretary determines
that compliance is genuinely not feasible until a future date 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. 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 under
20 U.S.C. 1234f(b)(2), by which time the recipient must be in full
compliance with all program requirements. In addition, the Compliance
Agreement must contain the terms and conditions with which the
recipient must comply during the period that the Agreement is in
effect. 20 U.S.C. 1234f(c). 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 action
authorized by law, including withholding of funds, issuing of a cease
and desist order, or referring the matter to the Department of Justice.
20 U.S.C. 1234f(d).
III. Analysis
A. Overview of Issues To Be Resolved in Determining Whether a
Compliance Agreement is Appropriate
The Department, in deciding whether it is appropriate to enter a
Compliance Agreement with VIDE, must first determine whether compliance
by VIDE with Part B, including the requirements concerning evaluations,
reevaluations, provision of special education and related services,
timeliness of due process decisions, and general supervision is not
feasible until a future date. 20 U.S.C. 1234f(b). If immediate
compliance with these requirements is possible, then VIDE's continued
receipt of Part B funds must be based on its coming into full
compliance now, rather than its attaining compliance under the terms of
an Agreement that can last up to three years. The second issue that
must be resolved is whether VIDE will be able, within a period of up to
three years, to come into compliance with Part B. Moreover, not only
must VIDE 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 VIDE would not be appropriate under 20
U.S.C. 1234f.
B. The Noncompliance of VIDE With the Part B Requirements Identified in
the Compliance Agreement Cannot Be Corrected Immediately
VIDE's failure to comply with the requirements of Part B is long-
standing, caused by a number of complex facts, and, as a result, cannot
be corrected immediately. The witnesses who testified at the public
hearings and the Department's experience in monitoring VIDE's special
education program during the past decade provide compelling support for
this conclusion.
Amelia Headley Lamont, counsel for the plaintiffs in Jones v. the
Government of the Virgin Islands, Civil Action No. 1984-47 (D.V.I.)--a
class action lawsuit brought on behalf of the parents of children with
disabilities--stated that:
The first complaint (filed in the class action lawsuit)* * *
dealt with four specific issues* * * (1) a denial of transportation
services; (2) denial of related services; (3) denial of
administrative due process; and (4) denial of an appropriate
educational placement. All of these issues that gave rise to the
filing of this action back in 1984 (are still at issue)* * *today.
U.S. Department of Education Compliance Agreement hearing, May 19,
1999, St. Croix, Virgin Islands (May 19, 1999 hearing).
Eleanor Hirsch, Assistant Director of the Virgin Islands University
Affiliate Program, provided a litany of frustrations and barriers that
parents of children with disabilities in the Virgin Islands have
experienced. Ms. Hirsch noted:
a fifteen-year class action suit for lack of related services; lack
of qualified teachers and other professionals, shortage of assistive
technology devices; lack of inclusion with the supports and services
necessary for success; no real line of authority for compliance
within individual schools, unmet timelines for evaluation and
assessment, IEP process, and placement; creation and implementation
of individual transition plans; lack of due process; lack of
Advisory Panels; and inaccessibility of buildings and programs. Id.
Information gathered by the Department confirms the views of these
witnesses that VIDE are not in substantial compliance with Part B. In
issuing its 1998 Part B monitoring report on VIDE, the Department noted
a lack of progress in implementing a corrective action plan to deal
with problems--identified in a 1993 monitoring report--concerning the
provision of related services, personnel in needed service areas, and
timely triennial evaluations. June 29, 1998 Letter from Thomas Hehir,
then Director of OSEP to Liston Davis then Commissioner of Education,
VIDE. That 1998 monitoring report also delineates specific Part B
requirements that VIDE is failing to meet.
According to that report, VIDE is not providing required related
services to 207 of the 1771 students with disabilities it is
responsible for serving. Enclosure B to OSEP's 1998 Monitoring Report
on the Virgin Islands. Because of transportation problems, students
with disabilities in the Virgin Islands frequently are not in school
for six hours, a full school day as defined by VIDE's established
standards. According to the report:
a building administrator stated that every day, students from five
to eight classes in the school come to school from 30 to 40 minutes
late; when buses break down (which frequently occurs) the children
do not come to school at all. Id.
OSEP was informed by a teacher at this same school: that the
students in her class lose up to 45 minutes each day, at least four
days per week due to problems with transportation. Id.
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Consequently, VIDE is not, as required, by 34 CFR 300.13, ensuring
that students with disabilities receive a free appropriate public
education that meets the standards of the SEA. OSEP's monitors also
found that VIDE is not ensuring, as required by 34 CFR 300.550(b)(2),
that students with disabilities are educated in the regular educational
environment unless the nature or severity of their disability justifies
a more restrictive environment. Id.
The validity of this finding--and the substantial nature of VIDE's
noncompliance--is confirmed by data provided by VIDE to the Department
which indicates that, in December 1998, there were no students with
disabilities in the Virgin Islands being served solely in the regular
education setting. Finally, the 1998 report finds that VIDE is not, as
required by Part B, including a statement of needed transition services
for students with disabilities that have reached the age of sixteen.
(Where appropriate, this statement is also required to be a part of the
IEPs for younger students). Id.
After the monitoring report was issued, VIDE informed the
Department that the IEP's of 246 students, who are covered by this
requirement, did not contain a statement of transition services.
Overall, OSEP has found that VIDE is not in substantial compliance with
Part B and that this is a long-standing problem.
VIDE acknowledges that it is not complying with Part B. During the
public hearings, VIDE pointed out that 196 children in the Virgin
Islands have not been provided with timely initial evaluations and that
697--out of a total population of students with disabilities being
serviced by VIDE of 1771--have not received timely reevaluations.
VIDE's Position Statement for the Compliance Agreement Public Hearing.
In addition, VIDE conceded in the hearings that it does not have a due
process hearing officer and that, as a consequence, could not resolve
the 23 due process complaints that were pending as of March 1999. May
19, 1999 Public Hearing. Finally, VIDE admitted, during the public
hearings, that it does not have the policies and procedures needed to
carry out its general supervision responsibilities. VIDE's Position
Statement for the Compliance Agreement Public Hearings. The one effort
VIDE made to monitor its special education program failed to identify
and require correction of many important violations of Part B. May 14,
1999 VIDE Office of Special Education Program, Monitoring Report. Given
the substantial noncompliance with Part B identified by OSEP through
its monitoring, and VIDE's own acknowledgement of these problems, we
conclude that VIDE has failed to meet its obligation, under 34 CFR
300.600, to ensure that the requirements of Part B are being met in the
Virgin Islands.
There are a number of complex causes for VIDE's long-term failure
to comply with Part B. One of the barriers to immediate compliance is a
financial crisis that the Virgin Islands is currently facing. VIDE's
Commissioner of Education, Ruby Simmonds, explained that these
financial problems make it difficult for VIDE to obtain access to funds
to pay for the equipment, services, and personnel needed to meet Part
B. May 19, 1999 Public Hearing. The validity of this concern is
confirmed by a Department of Interior audit report that concluded that
certain agencies of the Virgin Islands have systemic financial
management weaknesses. These financial weaknesses include violating the
Cash Management Improvement Act by drawing down Federal funds and not
promptly spending those funds and making improper interfund transfers
between various Federal accounts. Audit Report of the U.S. Department
of Interior, Office of Inspector General, No. 98-I-670 (September
1998). These actions affected funds of the VIDE and have led this
Department to declare VIDE a ``high risk'' grantee for fiscal
management reasons.\7\
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\7\ This designation of VIDE as a ``high risk'' grantee because
of the fiscal management weaknesses identified by the Department of
Interior audit report is distinct from the Departments designation
of VIDE as a ``high risk'' grantee in August 1998 because of that
agency's problems with meeting Part B. See pages 1-2 of this
memorandum, August 28, 1998, supra.
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Another barrier which affects the ability of VIDE to comply with
Part B is a lack of qualified related service personnel. VIDE Position
Statement for Part B Compliance Agreement Public Hearings. Even if
access to funds were not an issue, VIDE could not, acting on its own,
rapidly resolve this personnel shortage. First, VIDE's collective
bargaining agreement with its employee unions provides that related
services providers, such as speech/language therapists, occupational
therapists and physical therapists, have to be paid on the teacher's
salary scale. That salary scale, however, is not adequate to attract
qualified related services personnel. The result is that VIDE has found
that it is ``next to impossible'' to hire new staff. Department of
Education 1998 Part B Monitoring Resort on VIDE, Attachment B at 6. In
addition, efforts to contract for the services of related services
providers--as an alternative to hiring them as employees--have been
challenged by VIDE's employee unions. May 19, 1999 Pubic Hearing.
Finally, even when a qualified person who is willing to work for VIDE
is found, a time consuming and cumbersome hiring process that is not
under the control of VIDE must be completed before this person can
start working. Id.
Removing all these barriers to obtaining needed personnel will
require a long-term and systematic effort on VIDE's part that will
involve working with its employee union and other agencies of the
Virgin Islands to change existing policies and practices so that an
effective strategy for training and recruiting qualified related
services providers can be implemented. Similar efforts will be needed
to remove barriers that prevent VIDE from obtaining, among other
things, reliable transportation for students with disabilities and
timely resolution of due process hearings.
The evidence gathered by the Department at the public hearings and
through its monitoring of VIDE's special education program clearly
establishes an extensive failure to meet the requirements of Part B.
This failure is comprehensive, affecting, among other things, the
provision of timely evaluations and reevaluations, special education
and related services, serving students with disabilities in the least
restrictive environment, transportation of students, timely resolution
of due process, and VIDE's exercise of its responsibility to provide
general supervision of services for students with disabilities. These
problems are not isolated examples of noncompliance that can be quickly
or easily corrected, but the outgrowth of long-term and systemic
failures. As such, and as illustrated by the difficulties VIDE faces in
hiring qualified related services providers, VIDE's failure to comply
with Part B cannot be easily resolved but can only be effectively dealt
with through a comprehensive and long-term process of change. The
Department, therefore, concludes that VIDE cannot come into immediate
compliance with the requirements of Part B.
C. VIDE 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 Department has concluded that VIDE can meet the terms and
conditions of the attached Compliance Agreement and come into full
compliance with Part B within three years. New leadership at the VIDE,
which recognizes the
[[Page 9094]]
problems with the Virgin Islands' special education system, has been
working with this Department to devise and implement appropriate
remedies. This constructive and proactive approach on the part of
VIDE's leadership is a critical first step to bringing the Virgin
Islands into compliance with Part B. Moreover, the terms and conditions
of the Compliance Agreement and special conditions that the Department
will be imposing on VIDE's Part B grant award address the financial
management and other problems that have undermined the ability of the
Virgin Islands to meet its obligations under Part B.
In January 1999, Governor Charles W. Turnbull took office in the
Virgin Islands and, during the past year, has appointed new officials
to lead VIDE. VIDE's new leadership team has been willing to
acknowledge that students with disabilities in the Virgin Islands are
not being properly served and take responsibility for identifying the
causes of that problem and possible solutions. During the public
hearings, VIDE's Commissioner stated:
I'm not making excuses for us. I know that there have been
problems. I know that in some instances [VIDE] has messed up. But we
are now in the process of revisiting where we are and making an
effort to change those things. Since I've been on board, I've
appointed a new director for the Special Education Division (who)
has been reviewing the budget, the State plan and those things,
beginning to make a difference in terms of how the program is run.
Additionally our Assistant Commissioner has just come on board. She
has joined us on Thursday, Dr. Noreen Michael * * * She is going to
have oversight for special education among some other
responsibilities. And because of Dr. Michael's background in
educational psychology and other things she is going to be * * *
able to assist us pulling this Division in shape. I ask you to give
us a chance to do the work that is necessary to make Special
Education work for you and your children. May 18, 1999 Public
Hearing.
VIDE's new Commissioner and other top administrators have agreed to
take responsibility for reforming the Virgin Islands' special education
system. Because of the difficulty of this task, the dedication of
VIDE's leadership to its attainment is a critical element to successful
implementation of the Compliance Agreement.
The Department, in deciding whether VIDE can successfully implement
a Compliance Agreement, has also taken into account the level of
funding that VIDE receives under Part B. As an outlying area, VIDE
receives its Part B award from the one percent set aside for outlying
areas and freely associated States. 20 U.S.C. 1411(b). Under this
provision, VIDE's Part B grant award for fiscal year 1999 will be
$8,852,007, $4,998 per student. By contrast, the 50 States, the
District of Columbia, and Puerto Rico receive $690 per student. This
level of Federal support, even if local economic problems prevent the
Virgin Islands from increasing its expenditure of its own funds on
students with disabilities, provides VIDE with substantial financial
resources needed to carry out the Compliance Agreement.
As noted earlier, however, financial management weaknesses of the
Virgin Islands government have had an adverse impact on VIDE's capacity
to gain access to those Part B funds to pay for needed personnel,
equipment and services. See page 11 of this memorandum. Special
financial management conditions that the Department will impose on
VIDE's Part B grant awards, starting this fiscal year, are designed to
address this problem. These special conditions are incorporated by
reference into the Compliance Agreement. See Compliance Goal 7 of the
Compliance Agreement. Under those special conditions, VIDE will have to
establish a separate account for its Part B grant. Commingling of the
Part B funds with other State, local, or Federal funds will be
prohibited. The special Part B account will be limited to being used
for purposes allowable under that program. Finally, VIDE will have to
provide the Department with periodic reports on its expenditure of Part
B funds, including the date of the expenditure and the number of days
between drawdown of the Part B funds and their actual disbursement. All
of these special financial management conditions will help to make Part
B funds readily available to VIDE and help to remove one of the
barriers to an improved special education system for the Virgin
Islands' children with disabilities.
Finally, the Compliance Agreement itself sets out a realistic and
detailed plan--that can be effectively monitored by the Department--for
bringing VIDE into compliance with Part B. At the heart of the
Compliance Agreement are seven Compliance goal statements that address
the major areas of VIDE's noncompliance with Part B; timely evaluations
and eligibility determinations, providing FADE to students with
disabilities in the Virgin Islands, least restrictive environment,
obtaining sufficient personnel, complaint resolution, general
supervision, and fiscal accountability. Under each of these Compliance
goal statements, VIDE sets out the specific steps that it will take to
overcome the barriers that have prevented it from meeting the
particular requirement in question in the past. For example, under
Compliance goal 4, obtaining sufficient qualified personnel, VIDE sets
out 19 ``Strategies/Key activities'' that it will undertake to meet
this goal. These activities address the specific barriers noted above
to obtaining qualified personnel: the noncompetitive salary scale for
related services personnel, the slow and cumbersome hiring process, and
employee union challenges to contracting for needed personnel. In
addition, VIDE commits itself to working with universities in the
Virgin Islands and establishing a tuition assistance program in order
to increase the supply of qualified related services personnel. The
Compliance Agreement also identifies the VIDE official responsible for
carrying out each of the ``Strategies/Key Activities.'' Thus, a
specific official can be held accountable if an activity delineated in
the Compliance Agreement is not properly implemented.
In addition to specifying overall compliance goals, a plan for
meeting them, and the VIDE official responsible for implementing the
specific actions steps, the Compliance Agreement also sets out interim
goals that VIDE must meet during the next three years in attaining
compliance with Part B. See Tables A--G of the Compliance Agreement.
Therefore, VIDE is committed not only to being in full compliance with
Part B within three years, but to meeting a stringent, but reasonable,
schedule for reducing the number of students not being properly served
in the Virgin Islands. The Compliance Agreement also sets out data
collection and reporting procedures that VIDE must follow. These
provisions will allow the Department to ascertain promptly whether or
not VIDE is meeting each of its commitments under the Compliance
Agreement. The Compliance Agreement, because of the obligations it
imposes on VIDE, will provide the Department with the information and
authority it needs to protect the Part B rights of the Virgin Islands'
students.
VIDE has developed a thorough and reasonable plan for addressing
the underlying causes of its failure to comply with Part B. Moreover,
because of the level of funding it receives under Part B, and special
financial management conditions that will be imposed on its Part B
grant award, VIDE should have access to the financial resources needed
to implement that plan. For these reasons, the Department concludes
that VIDE can meet all the terms and conditions of the Compliance
Agreement and come into full
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compliance with Part B within three years.
IV. Conclusion
For the foregoing reasons, the Department finds that: (1) Full
compliance by VIDE with the requirements of Part B is not feasible
until a future date, and (2) VIDE 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 VIDE. Under
the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes
effective on the date of this decision.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet 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 (GPO), toll free, at 1-888-293-6498; or in the Washington, DC
area at (202) 512-1530.
Note: The official version of a document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html
Authority: 20 U.S.C. 1234c and 1234f and 20 U.S.C. 1401, 1411-
1420.
Dated: February 16, 2000.
Richard W. Riley,
Secretary of Education.
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APPENDIX A--COMPLIANCE AGREEMENT
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[FR Doc. 00-4085 Filed 2-22-00; 8:45 am]
BILLING CODE 4000-01-C