FOCUS ON MONITORING

Maureen O'Connell
1006 Elm Street
Austin, Tx 78703
(512) 322-0408
moconnell@sdlcenter.org

I.        Introduction

        Under the Individuals with Disabilities Education Act (IDEA), state education agencies (SEAs) bear the ultimate responsibility for ensuring the provision of a free appropriate public education (FAPE) to all children and youth with disabilities. 20 U.S.C. §1412(a)(11)(A). SEAs are required to engage in several administrative activities to fulfill this fundamental responsibility. One of the most significant involves compliance monitoring of local education agencies (LEAs). See, 34 C.F.R. §§ 300.125(b)(3); 300.128(b)(2); 300.556; and 300.600.

        In many states, the long-standing history of noncompliance with the requirements of IDEA by LEAs is due primarily to the SEA's failure to develop and implement an effective special education monitoring system - one that both identifies and corrects deficiencies in the LEA's policies and practices. Although the SEA essentially must serve as the "state police" charged with enforcing compliance with the legal requirements of IDEA, this enforcement responsibility is not warmly embraced by SEAs. The reason is simple – SEAs are comprised of educators who are inadequately trained and naturally resistant to "policing" compliance with IDEA. Moreover, the political reality of "local control" in education today further heightens this resistance.

        These circumstances produce an obvious result. SEA enforcement activities are rare. Findings of noncompliance are invariably converted into training agendas that produce little change. The dearth of enforcement activities seriously undermines the credibility of the SEA as an agent of change. These issues must be addressed if students with disabilities are to realize the promise of IDEA.

II.        The Legal Obligation of SEAs to Develop and Implement Effective Monitoring Systems

A. SEA's General Supervisory Responsibilities Under IDEA

        IDEA provides that each "State Education Agency is responsible for ensuring that (i) the requirements of this [Act] are met…" 20 U.S.C.§1412(a)(11) (A).

        See also, 34 C.F.R. §300.600. According to the Fourth Circuit Court of Appeals, "ultimately, it is the SEA's responsibility to ensure that each child within its jurisdiction is provided a free appropriate public education. Therefore it seems clear that an SEA may be held responsible if it fails to comply with its duty to assure that IDEA's substantive requirements are implemented." Gadsby by Gadsby v Grasmick, 109 F.3d 940, 952 (4^th Cir.1997).

        This legislative history has led numerous courts to conclude that an SEA bears the legal responsibility for failure to ensure compliance with the mandates of IDEA. See, John T. v. Iowa Department of Education, 258 F. 3d 860, 864 (8^th Cir. 2001); St. Tammany School Board v. State of Louisiana, 142 F. 3d 776, 784 (5^th Cir. 1998); Gadsby by Gadsby v. Grasmick, 709 F. 3d at 952. See also, Kruelle v. New Castle County School District, 642 F. 2d 687, 696-697 (3^rd Cir. 1981).

        As one district court stated in denying an SEA's motion to dismiss "it seems clear that a [SEA] may be held responsible if it fails to comply with its duty to assure that IDEA's substantive requirements are implemented." Lapp v. Board of Education of Anne Arundel County, 28 IDELR 1, 3 (D, Md. 1997).

        In addition, IDEA regulations specifically require SEAs to monitor:

1. LEA child find practices to ensure that all children with disabilities are identified, located and evaluated. 34 C.F.R. §300.125(b)(3)(i)(ii).

2. IEPs and IFSPs to ensure that these plans are developed, reviewed and revised for each child with a disability in conformance with IDEA's requirements. 34 C.F.R. § 300.128(b)(2).

3. LEA placement practices to ensure that these practices comply with the LRE requirements of IDEA. Where there is evidence that an LEA engages in placement practices that are inconsistent with the Act, the SEA is required to review the LEA's justification for its actions and assist in planning and implementing any necessary corrective actions. 34 C.F.R. § 300.566.

4. LEA policies and practices for ensuring that children with disabilities placed in private schools/facilities by an LEA are provided FAPE. 34 C.F.R. § 300.402.

        Finally, the comment section to 34 C.F.R. § 300.600 governing the SEA's general supervisory responsibilities notes that a strong SEA monitoring system is necessary to ensure the effective implementation of IDEA and is critical to improving education results for children with disabilities. Moreover, when SEA monitoring practices are lax, noncompliant practices emerge within LEAs and performance indicators for children with disabilities decline. Comments accompanying 34 CFR § 300.600, Fed. Register, Vol. 64, No. 48, March 12, 1999 Pg. 12644-12645.

B. SEA Responsibility Under the General Education Provisions Act

        In addition to the oversight responsibilities described in IDEA, the SEA is also subject to the requirements of the General Education Provisions Act (GEPA). 20 U.S.C. §1221, et seq. Specifically, this law requires recipients of federal education funds to adopt and use proper methods of administration, including:

• monitoring of agencies, institutions, and organizations responsible for carrying out each program, and the enforcement of any obligations imposed on those agencies, institutions, and organizations under law;
  
• providing technical assistance, where necessary, to such agencies, institutions, and organizations;
  
• encouraging the adoption of promising or innovative educational techniques by such agencies, institutions, and organizations;
  
• disseminating information on program requirements and successful practices; and
  
• the correction of deficiencies through monitoring or evaluation.
  
• 20 U.S.C. §1232d(b)(3).

C.  SEA Responsibility Under State Law

        A final source of the SEA's obligation to effectively monitor LEA compliance with special education requirements may be found in state law. Some state statutes and regulations describe monitoring procedures in detail while others may only generally refer to the SEA obligation to monitor for special education compliance. It is important to understand what is required by state law when trying to assess whether the SEA is truly meeting its obligation to ensure FAPE to students with disabilities throughout the state.

III.       Challenging the SEA's Failure to Correct Noncompliance with IDEA

        As stated above, pervasive LEA noncompliance with IDEA is often linked to the inadequacy of a state's special education monitoring process. In many instances, ineffective monitoring practices result from the SEA's failure to acknowledge the scope of its obligation to ensure FAPE to students with disabilities throughout the state. Such an attempt to minimize the role of the SEA in ensuring FAPE to students with disabilities was illustrated in Cordero by Bates v. Penn. Dept. Of Educ., 795 F. Supp. 1352, 1361 (M.D. Pa. 1992). In Cordero, the SEA characterized its duties "as providing funds, promulgating regulations and reviewing individual complaints." Fortunately, the court disagreed:

As defined by the IDEA, the state's role amounts to more than creating and publishing some procedures and then waiting for the phone to ring. The IDEA imposes on the state an overarching responsibility to ensure that the rights created by the statute are protected, regardless of the actions of the school districts.

        The following case summaries illustrate various litigation approaches taken on behalf of students with disabilities to ensure that the SEA does more than "wait for the phone to ring."

Corey H. v. Illinois State Board of Education, 995 F. Supp. 900 (N.D. Ill. 1998)

Plaintiffs challenged the failure of the City of Chicago Board of Education and the Illinois State Board of Education to ensure that students with disabilities were educated in the least restrictive environment (LRE). Following extensive settlement negotiations, the parties selected a panel of experts to "conduct an inquiry" into the issues raised by Plaintiffs. The parties agreed that the findings of the panel of experts would not be binding.

The expert panel ultimately concluded that the City of Chicago had violated the LRE requirements of IDEA because placement of students with disabilities was based on the category or severity of disability in most instances. The panel also found that the school district and the SEA failed to effectively monitor for compliance with the LRE requirement.

The parties again entered into settlement negotiations and Plaintiffs and the City of Chicago reached an agreement. The SEA, however, refused to settle, and the case proceeded to trial against this sole defendant. Following the trial, the court found that the SEA failed to meet its obligations as an SEA due to its inability to effectively monitor the school district for compliance with IDEA. Characterizing the SEA's case at trial as an attempt to "deny the undeniable and defend the undefendable," the court rejected the claim that the SEA has only a limited responsibility to provide "oversight and general supervision."

The court next rejected the SEA's claim that its monitoring system could not be found to violate IDEA because the statute fails to provide any guidance as to how to monitor for compliance with LRE and its current monitoring system was adequate under the law. In determining the adequacy of the SEA's monitoring system, the court specifically noted that "one must look to the results of the ISBE's monitoring efforts to determine whether the ISBE is in compliance with the IDEA." The expert panel testified that the results of this monitoring system, as evidenced by the data from the City of Chicago school district, belied the SEA's claim of having an adequate monitoring system. While acknowledging that the monitoring system appeared adequate on paper, the experts testified that the historical noncompliance by the school district and the SEA's failure to require that the district correct this noncompliance, illustrated the ineffectiveness of the SEA's monitoring efforts.

Finally, the court rejected the "leave it to OSEP" defense, which was offered by the SEA in an effort to persuade the court that the issue of the adequacy of its monitoring practices was best left to federal agency oversight.

Emma C. v. Eastin, et al., U.S. District Court, N.D. Ca., No. C96-4179

On November 18, 1996, eight students with disabilities filed this class action lawsuit alleging that the Ravenswood City School District and the California Department of Education (CDE) failed to, inter alia, adequately identify, assess, educate, and place students with disabilities as required by IDEA. Nearly three years later, the parties entered into a consent decree, which addressed both the responsibility of the local school district to implement the Ravenswood Corrective Action Plan (RCAP), as designed by two independent consultants, and the role of the CDE to effectively monitor the district's compliance with IDEA. (The consent decree does not contain detailed provisions regarding CDE's special education monitoring system as the agency implemented a new monitoring system while the case was pending.)

On October 4, 2001, the court issued an contempt order against Ravenswood City School District, extensively detailing its noncompliance with the RCAP and finding it to be "a district massively out of compliance with special education requirements . . ." By this point, Plaintiffs and the CDE were both requesting that the Court temporarily transfer the authority of the Ravenswood Board of Trustees and the Superintendent to the State Superintendent of Public Instruction. Following the school district's request for one more opportunity to implement the RCAP, the court agreed to postpone placing the district in receivership for several months while the school district received additional assistance from outside consultants.

Angel G. v. TEA, U.S. District Court, W.D.TX, No. A-99-CA-035-SC.

In January 1994, Plaintiffs filed this lawsuit against the Texas Education Agency (TEA) on behalf of all students with disabilities residing in residential care facilities (RCFs). Plaintiffs alleged that TEA failed to meet its responsibilities as the SEA, including its child find obligation, the interagency agreement requirement, and the duty to develop and implement an effective monitoring system. In 1996, the parties settled the first two claims and agreed to have an independent consultant review TEA's revised special education monitoring system. One year later, the independent consultant issued his report, characterizing TEA's monitoring system as fundamentally flawed. Unable to reach an agreement about the necessary features of an effective monitoring system, the case went to trial in July 2000 on the question of the adequacy and effectiveness of TEA's monitoring system in identifying and correcting noncompliance with IDEA for students residing in RCFs. Plaintiffs experts offered extensive evidence of the inadequacy of TEA's current monitoring system and suggested an alternative model of focused monitoring as a more effective way of addressing systemic noncompliance in a state with more than 1100 school districts. As of this date, no decision has been issued in this case.

IV.           Evaluating SEA Special Education Monitoring Practices

        Prior to conducting your own evaluation of the SEA's special education monitoring system, you may want to review prior OSEP monitoring reports for your state to determine if the SEA has been cited for its monitoring practices. If so, be sure to obtain the corrective action plans submitted by the SEA in response to these citations and ascertain whether OSEP has approved any corrective action plans submitted by the SEA.

        To further assess the effectiveness of a state's special education monitoring system, it is important to understand each step of the monitoring process. Much of this information is available through public records requests and other inquiries directed to the SEA. You may want to consider requesting the following information:

(1) Special education monitoring manuals describing the state's monitoring policies, practices, compliance standards, forms, and district reports;

(2) Amount of Part B funds retained by the SEA to conduct compliance monitoring;

(3) Identity of all state special education monitors, job descriptions, and qualifications;

(4) Monitoring schedules for the past several years to determine how often LEAs are monitored in the state;

(5) Methodology used to select school districts for monitoring including cyclical selection, data review, or application of risk factors;

(6) Description of the various types of monitoring activities undertaken by the SEA, including desk audits, self-assessments, on-site visits; validation visits, and follow-up activities;

(7) Description of all preliminary activities prior to monitoring, including interviews with district personnel, data analysis, and review of complaints and due process requests within the district,

(8) Description of the procedures used to determine compliance, including staff interviews, parent meetings and surveys, interviews with students and parents, student observations, records reviews, policy reviews, and case studies;

(9) Description of the SEA's sampling methodology and the criteria used to select students for observation and interviews, student records, or case studies;

(10) Legal standards applied during compliance review;

(11) Method by which noncompliance with established legal standards is cited;

(12) Final compliance reports provided to school districts;

(13) Type of corrective actions required of noncompliant school districts by the SEA;

(14) Range of sanctions available to SEA when school districts fail to correct identified noncompliance;

(15) Time frames for correction of identified noncompliance and imposition of sanctions.

V.          Focused Monitoring - An Answer to Ineffective Monitoring Systems

        Although there is no one "perfect" monitoring system that will work for each state in every area of compliance, there is a more effective and efficient way for SEAs to meet their enforcement obligations. Effective compliance monitoring must engender real change and progress. Limited SEA resources must be allocated to activities which will produce change and progress. LEA compliance with IDEA and the concomitant development of quality educational programs for students with disabilities must be the expectation for SEA monitoring activities.

        An effective monitoring system must garner compliance over time. Programs for students with disabilities and outcomes associated with these programs should reflect improvement as compliance is secured, i.e. fewer students should be dropping out of school, more students should be graduating, and more students should be competitively employed. These represent measurable expectations and outcomes for all students. SEA monitoring activities should produce measurable gains in these areas for students with disabilities.

A.   Many Current Monitoring Systems Fail to Focus Attention on the Most Significant Areas of Noncompliance.

        The foundation of an effective monitoring system is information/data. A monitoring system must generate information/data that can be used in two ways:

1. to determine an LEA's provision of FAPE to students with disabilities, and
2. to support enforcement activities directed towards attaining compliance.

        Since the enactment of IDEA in 1975, SEAs have almost uniformly used a cyclical monitoring system that treats all LEAs the same. This type of monitoring system does not differentiate between LEAs with varying, much less markedly different rates for child find, LRE, transition, dropout, graduation rates, etc. Every LEA is monitored in the same manner and on the same rotating schedule. LEA information/data rarely impacts the fixed nature of the cyclical monitoring visit. This "big visit" typically occurs once every five to seven years and involves a superficial examination of all IDEA requirements. Once complete, LEAs know that the SEA will not be back for five to seven years and will not use or track their district data to determine if any identified deficiencies have been corrected.

        SEA reliance on an infrequent, cyclical monitoring visit system has created the untenable condition in which the same deficiencies are interminably identified and yet languish uncorrected for years or decades. The necessarily superficial nature of the system defeats systemic, in-depth reviews of compliance issues present in LEA information/data, and diffuses SEA resources to monitoring activities that are minimally effective.

B.    Focused Monitoring - A Model For Change

        In July 1997, Dr. David Rostetter, President, Education Policy Solutions, Ltd.; Dr. W. Alan Coulter, University Affiliated Program, Louisiana State University; Dr. Brian McNulty, then Assistant Superintendent, Colorado Department of Education; Dr. William Sharpton, Professor of Special Education, University of New Orleans; and Mark Mlawer, Independent Education Consultant, met in Chicago to develop a "focused monitoring system" model.⁴

        The founders of the "focused monitoring system" movement began with the premise that "effective SEA monitoring requires the use of valuable LEA information/data to prioritize efforts in order to ensure maximum outcomes with limited resources. Human and financial resources should be allocated where they are most needed and likely to make a difference."

        These experts believe that an effective monitoring system must include the following four components:

1. Information/Data Analysis and Use

        LEA information/data must be collected, analyzed and used to focus monitoring efforts, provide guidance and ensure accountability to the public. Information/data must be used to identify compliance problems, furnish consistent feedback to all LEAs on their performance, focus SEA resources toward technical assistance, training or focused monitoring activities.

2. Self Study and Validation

        Based upon the compliance issues in school district data, certain LEAs must engage in a self-study process to review compliance with IDEA's requirements and plan for program improvements.

Other LEAs must be randomly selected on an annual basis for on-site validation visits. The purpose of such visits is to ensure the accuracy of the LEA's information/data and to ensure compliance with IDEA's procedural requirements.

3. Focused Compliance Monitoring

        SEAs must have the capacity to identify significant compliance problems and investigate those problems in-depth. This component focuses on compliance problems identified from LEA information/data and from validation visits which uncover discrepancies in LEAs information/data. It does not examine "across-the-board" IDEA compliance.

4. Enforcement of Legal Obligations

        SEAs must adopt investigatory standards which support enforcement activities when necessary. LEA compliance problems can no longer go unaddressed for long periods of time due to a lack of SEA enforcement activities. Findings of noncompliance must involve measurable standards for corrective action. When LEAs fail to implement necessary corrective action, enforcement measures must be taken immediately and need to involve the imposition of graduated sanctions.

C.  The Texas Compliance Monitoring System - A Proposal for Change

        Following the 1997 meeting in Chicago, the experts met several more times to develop a model for compliance monitoring to be proposed in the Angel G. v TEA case. The following is a description of this focused monitoring system.

1. Performance Review

The cornerstone of a focused monitoring system is performance data that are routinely collected and reported by LEAs. The SEA will review and compare these data to statewide performance averages and specific performance triggers. Through this analysis, the SEA will assign one of four performance review outcomes to each LEA. The following is a description of how LEA data will be collected, reviewed and used to ensure LEA compliance with federal and state law.

Data system A Performance Profile will be developed involving data variables that are directly related to effective special education practice and results e.g.s LRE, graduation rates. Under this proposed system, the SEA must ensure that each of these data variables is reported by the LEAs. See, attached list of sample variables included in LEAs Performance Profile

Template The SEA must develop a template for analyzing special education performance data and measuring compliance.

Standards must be developed for two types of trigger values. The first trigger value is known as an "at-risk" trigger. This trigger is used to identify those LEAs that are at-risk concerning their performance level for the identified data variables. The second trigger value is the "focused monitoring" trigger and is used to identify those districts that will receive a focused monitoring visit. A third value or "benchmark" for each data variable must also be developed. The benchmark identifies a statewide performance goal for each variable which is designed to improve the performance levels associated with special education practices throughout a state. Thus, the template will include at-risk and focused monitoring trigger values for each variable, as well as benchmarks.

Initially, a statewide performance average will be calculated for each data variable. This will serve as a baseline for establishing the benchmark and trigger values for data variables. Subsequent trigger values must be developed based upon the following key principles:

(1) Trigger values should never be set below the statewide performance average of the identified data variable;

(2) Trigger values should be established at levels which encourage annual improvement;

(3) Established trigger values should not be negotiated downward simply because attaining a specified level of performance is difficult;

(4) Trigger values must be differentiated for various populations (e.g., students with emotional disturbance and high and low incidence disabilities;

(5) Trigger values must be established to clearly identify unacceptable levels of performance.

Performance Profile An LEA performance profile must be developed and distributed annually to each LEA. The performance profile allows each LEA to review its level of performance on each variable within the context of the statewide average, and the established benchmark values. Thus, each LEA can identify those variables where its performance exceeds statewide averages, as well as those variables where district performance is problematic.

The performance profile is designed to identify each LEA data variable which exceeds an "at-risk trigger" or "focused monitoring trigger" value. This information is then used by the SEA to assign the applicable performance review outcomes to each LEA.

Design of Template Triggers The Performance Profile consists of data variables related to fundamental special education practices and the educational results for students that are linked to those practices. Three cumulative figures are provided for most of the data variables. These three figures are the performance scores for: (1) students with high incidence disabilities, (2) students with emotional disturbance, and (3) students with low incidence disabilities.

The rationale for identifying three cumulative figures is to provide safeguards in the calculations and analyses of performance data. A primary example is low incidence populations. Problematic performance data for this population can be easily masked by the performance data averages calculated for all students with disabilities. That is, some groups are likely to escape scrutiny because their numbers are too small or because large numbers of other students, particularly with high incidence disabilities, counteract their performance levels on critical data variables.

For example, consider LEA X, which serves 2,000 special education students. Although the LEA places most of the students with moderate to severe retardation, autism, and multiple disabilities (low incidence disabilities) in segregated settings, the majority of special education students with learning disabilities and physical disabilities (high incidence disabilities) are in general education or resource classroom settings. Reported only in the aggregate, placement data for students with low incidence disabilities, which exceeds the focused monitoring trigger for this critical variable, would be masked by the placement data of students with mild or high incidence disabilities.

Requiring LEAs to report all three summary data points allows an SEA to identify particular areas of noncompliance for specific populations of students. While students with emotional disturbance are typically included in the category of high incidence disabilities, the proposed compliance monitoring model specifically identifies the data for this group of students as a way to uncover areas of noncompliance that are pervasive on a national, state, and local level (e.g., suspension, expulsion).

Assignment of Performance Review Outcomes. The template, with its at-risk and focused monitoring triggers, is applied to the performance data of each LEA on an annual basis. Analysis of the data vis a vis the template results in one of four performance review outcomes for each LEA, as described below.

Continuous Improvement District.

LEAs whose data indicate satisfactory performance on all data variables included in the special education performance profile will be designated as continuous improvement districts. If an LEA in this category is not chosen randomly for a validation visit discussed below, the SEA will require no further compliance activities for that year. Each LEA in this category can use its own discretion to pursue any continuous improvement activities that will result in 100 percent compliance levels. The SEA should include these LEAs in training and technical assistance efforts for those LEAs identified for compliance activities.

Validation visit district.

The SEA will randomly select a sample of LEAs on an annual basis for on-site validation visits. The purpose of the validation visit is to ensure the accuracy of the performance profile data and to ensure compliance with all procedural requirements. A sample will be drawn from all LEAs not identified as at-risk or focused monitoring districts.

The validation visit must examine the accuracy of the LEA's performance data, as well as its compliance with all procedural requirements. The visit will include the random, stratified selection and review of student records and on-site campus observations. This visit allows an SEA to compare actual data to that previously reported by the LEA, as well as to ensure that all procedural requirements are being met.

The SEA will provide a written report of the validation visit findings, including the results of both the data verification and procedural compliance review, to the LEA. This report will describe any necessary corrections to the LEA data system and/or to the implementation of procedural requirements. Where data discrepancies change the district profile such that it reaches an at-risk or focused monitoring trigger value, the applicable performance review outcomes will be imposed upon the LEA, e.g., self-study supplement or focused monitoring visit.

At-risk district

This outcome is applied to those LEAs scoring at or above the at-risk trigger level on one or more data variables in the special education performance profile. This designation requires the LEA to conduct a self study of special education practices as a supplement to the state mandated district improvement plan. This self study supplement will be developed by a multi-constituency team designated by the superintendent of the district. At a minimum, the self study team should include: the director of special education, curriculum personnel, campus level instructional personnel, and parent representatives.

The team will review the LEA performance profile generated by the SEA to identify the at-risk areas of concern. After identifying the areas of concern (e.g., over-identification of minority students), the LEA self study team must review individual campus and LEA data to determine possible reasons for the identified problems.

Based upon its findings, the team will generate specific action steps to improve the educational results in each identified area. The self study and consequent action steps shall comprise the self-study supplement to the district improvement plan.

The SEA will review and approve the self study supplement to the district improvement plan for all at-risk districts to ensure the plans are effective in resolving the specified areas of concern and in identifying the technical support needed by the LEA to complete the activities contained within the self-study supplement. The self study supplements must also be linked to the design and implementation of the statewide Comprehensive System of Personnel Development (CSPD), the training and technical assistance required by IDEA and conducted by the SEA.

Focused Monitoring District

The SEA must conduct a focused monitoring visit when a LEA's performance data exceeds the focused monitoring trigger for any critical data variable. Prior to this visit, the SEA must develop an investigation plan which is tailored to the identified areas of noncompliance. This investigation plan must:

(1) be individualized for each LEA being monitored;

(2) address all issues identified by the established "focused monitoring" trigger values;

(3) focus on measurable data which indicate compliance or noncompliance with the identified issue(s);

(4) include a review of student records and applicable policies, interviews with relevant personnel, and classroom observation;

(5) incorporate input from parents and students;

(6) include all student populations representative of the identified issue(s);

(7) collect all information needed to determine LEA compliance.

        During the focused monitoring visit, the SEA must collect information from a variety of sources, e.g., written policies, student records, teachers, administrators, support personnel, parents and students. All sources of information relevant to the targeted issue(s) of the focused monitoring should be utilized. Student records must be selected to ensure a sufficient representation of the population(s) most affected by the identified issue. For example, where placement data for students with low incidence disabilities exceeds a focused monitoring trigger value, the investigation plan must include a review of sufficient numbers of records of students with low incidence disabilities to determine the cause of noncompliance and needed corrections.

        The focused monitoring visit must result in a corrective action plan developed by the SEA and the LEA. The SEA must ensure the LEA obtains the technical assistance it needs to implement the corrective action plan. In cases where the corrective action plan is not satisfactorily implemented, the SEA shall impose a continuum of sanctions to ensure LEA compliance with all special education requirements.

2. Policy Review

        The SEA is required to ensure each LEA has policies and procedures which, if implemented as written, result in compliance with the procedural requirements of IDEA. Special education policies must be filed with the SEA. The SEA must approve or disapprove each LEA's policies. If the SEA disapproves an LEA policy, it must ensure that the LEA makes the needed revisions and resubmits the revised policy. In order to facilitate this process, the SEA should develop a set of model LEA policies and procedures which, if adopted, would comply with all federal requirements and applicable state standards. Having model policies would decrease the time spent on policy review and increase the time spent monitoring actual special education practices and student results. This process will also provide LEAs with more time to ensure approved policies are effectively implemented at the classroom level.

3. Complaint Management System

        An effective complaint management system is the third component of this integrated focused monitoring system. Complaint investigation and resolution is an essential element of this system. The complaint process provides a continuous means of addressing the denial of FAPE and other violations of federal and state special education laws. While the process of data collection and analysis will identify district and statewide problems and trends, the complaint management system must provide an effective and timely mechanism to resolve those issues of LEA noncompliance not readily captured by data analysis.

        The complaint management system must investigate any allegation that an LEA has violated state or federal special education laws. The complaint can be filed on behalf of an individual student or a group of students receiving special education services. The complaint management system must investigate and resolve complaints in a timely manner and cannot simply refer complainants to the due process or mediation systems, or simply wait for the complaint to be resolved through some other component of the monitoring system.

        When the investigation substantiates the complaint, the complaint management system must develop corrective action plans that will eliminate the areas of noncompliance and remedy the violation for the student or students. Failure of an LEA to implement a corrective action plan shall result in a focused monitoring visit in the area of noncompliance.

        Finally, the SEA must incorporate all complaints into its data system. These data can be analyzed and included in each LEA's performance profile. Information from the complaint management system must also be used when conducting a validation visit or developing an investigation plan for a focused monitoring visit. Information from the complaint management system is also an important resource for identifying personnel training needs and should be linked to the SEA's ongoing obligation to maintain a Comprehensive System of Personnel Development.

4. Ongoing Activities

Oversight and Enforcement of LEA Compliance

        Identifying areas of LEA noncompliance is only part of an effective monitoring system. To ensure that identified deficiencies are corrected, all monitoring efforts must occur within a framework of enforcement activities. The SEA has the ultimate responsibility to ensure FAPE for all students with disabilities. It will only meet this responsibility if noncompliant LEAs understand that there are real consequences for continuing noncompliance. The SEA must develop and implement a system to correct deficiencies and enforce legal obligations when it determines that an LEA has failed to meet any compliance requirements. The SEA enforcement of LEA' legal obligations is an ongoing responsibility associated with each of the three major components of the proposed compliance monitoring system: Performance Review, Policy Review, and Complaint Management System.

        The SEA must apply a system of sanctions whenever there has been a focused monitoring visit and an LEA fails to fully correct areas of noncompliance identified in its corrective action plan. The SEA will administer a range of sanctions in the following graduated order:

LEVEL 1 - MANDATORY FIRST LEVEL SANCTIONS FOR NON-COMPLIANT LEAs (All Apply)

1.  The SEA shall send a letter of continued noncompliance which the LEA must disseminate to families of students with disabilities served by the LEA and the LEA board of trustees. The SEA shall send a copy of this letter to members of the State Senate and House Committees on Education.

2.  The LEA Performance Report, and all subsequent SEA correspondence regarding continued LEA noncompliance, shall be made the subject of a public hearing convened by the LEA board of trustees.

3.  The LEA Performance Report and all subsequent SEA correspondence regarding continued LEA noncompliance shall be made a primary consideration in the evaluation of the LEA superintendent and, where appropriate, the evaluation of the principal(s).  

LEVEL 2 - MANDATORY SECOND LEVEL SANCTIONS IMPLEMENTED WITHIN 60 DAYS OF FIRST LEVEL SANCTIONS IF LEA CONTINUES TO BE NONCOMPLIANT. (All Apply)

1.  Accreditation of the noncompliant LEA is lowered.

2.  Certification of responsible administrative officials is suspended or terminated.

LEVEL 3 - MANDATORY SANCTIONS IMPOSED 60 DAYS AFTER LEVEL 2 SANCTIONS IF LEA REMAINS NONCOMPLIANT. THE SEA SHALL IMPOSE ONE OF THE FOLLOWING FOUR LISTED SANCTIONS

1.  Both federal and state special education funds are transferred from the noncompliant LEA to a neighboring LEA willing to oversee the provision of special education services in the noncompliant district

2.  Both federal and state special education funds are partially withheld from the noncompliant LEA; however, the LEA must continue to provide special education services to all eligible students.

3.  Both federal and state special education funds are withheld from the noncompliant LEA; however, the LEA must continue to provide special education services to all eligible students.

4.  The SEA will recover previously awarded federal and state special education funds from a non-compliant LEA.

Policy Review

        The SEA must carefully review the special education policies and procedures of each LEA to ensure each policy complies with federal and state requirements. In situations where an LEA's policy fails to comply with federal and state requirement, the SEA must require the LEA to revise these policies to be consistent with all legal requirements.

Complaint Management System

        The Complaint Management System is the monitoring component most essential to ensuring an LEA is providing FAPE to individual students. Parents of students with disabilities must be able to rely on the complaint system to enforce LEA compliance as it relates to their child. Therefore, the SEA must demand adherence to the terms of a corrective action plan generated by the complaint system as forcefully as it would for a corrective action plan that results from a focused monitoring visit.

        To do this, the SEA must conduct a focused monitoring visit to any LEA that fails to implement a corrective action plan resulting from a complaint. The monitoring visit will focus on the issue that was the subject of the complaint.

Comprehensive System of Personnel Development

        SEA performance profiles should be used to identify statewide personnel training and technical assistance needs/initiatives. The complaint management system should also be analyzed to identify training needs.

Data Design, Analysis, and Review

        The SEA must provide on-going support to the LEAs in the collection and reporting of performance data. The SEA must also develop procedures for periodically (i.e., every three years) reviewing and revising the trigger values which establish the limits of acceptable LEA performance.

        In many states, ineffective monitoring practices by SEAs have resulted in long-standing LEA noncompliance with IDEA. Protection and advocacy agencies and other disability advocates can play a critical role in challenging and reforming the ineffective monitoring practices found in these states. Special education compliance monitoring can, and must, make a difference in improving educational results for students with disabilities.