The Department of Education’s Office of Special Education Programs (OSEP) recently announced updated guidance documents to enhance the protections for children with disabilities under the Individuals with Disabilities Education Act (IDEA).
Under IDEA Part B, children with disabilities (aged 3-21) are required to receive a “free appropriate public education” or FAPE. IDEA Part C requires States to make “early intervention services” (EIS) available to families of infants and toddlers who have a disability. States are also responsible for implementing a “general supervision system” that include a State’s local educational agencies (LEA) and early intervention services (EIS). By issuing this guidance, the OSEP intends to provide clarity on what qualifies as “general supervision responsibilities” and expand the State’s responsibilities when identifying and remedying noncompliance.
What is “general supervision”?
In order to receive IDEA funds, the State agency must have a general supervision system. Such a system includes consistent monitoring to “improve the educational results and functional outcomes” for children with disabilities and that LEA and EIS programs meet IDEA requirements. According to OSEP, a “reasonably designed” general supervision system includes “eight integrated components”:
- Integrated monitoring services
- Data on processes and results
- The SPP/APR (State Performance Plans / Annual Performance Report)
- Fiscal Management
- Effective Dispute Resolution
- Targeted TA and professional development
- Policies, procedures, and practices resulting in effective implementation; and
- Improvement, correction, incentives, and sanctions.
What is considered adequate supervision?
OSEP clarifies that a State “must not ignore credible allegations about potential noncompliance.” Additionally, the guidance states that the State should monitor all LEA/EIS programs at least once within the six-year cycle of the State Performance Plan / State’s Annual Performance Report.
Addressing and Correcting Noncompliance
When is there an “area of concern” regarding noncompliance?
OSEP states that potential non-compliance begins with identifying an “area of concern.” An “area of concern” is defined as a “credible allegation regarding IDEA policy, procedure, practice, or other requirement that raises one or more potential implementation or compliance issues, if confirmed true.” The guidance specifies that allegations (which include information and awareness of an area of concern) can come from a variety of sources to be considered credible.
What must a State do when made aware of an “area of concern”?
If a State is made aware of an area of concern, the State must “conduct its due diligence in a timely manner to address the area of concern and reach a conclusion in a reasonable amount of time.” OSEP reminds States, however, that they are required to have policies and systems in place designed to address and correct potential noncompliance in a timely manner.
What are the requirements for a “finding of noncompliance”?
According to OSEP, a finding or identification of noncompliance means that a determination has been made by the State that an LEA or EIS “program, policy, procedure, or practice, including those that are child specific, is inconsistent with an applicable IDEA requirement.” If such a finding is made, the State must inform LEA or EIS in writing within three months of the finding.
What is required to correct noncompliance?
To properly demonstrate that any noncompliance has been corrected, the State must verify that the LEA or EIS program/provider:
- Is correctly implementing the specific regulatory requirements (100% compliance with IDEA) based on a review of updated data and information
- If applicable, it has corrected each individual case of child-specific noncompliance unless the child is no longer in the jurisdiction of the LEA or EIS program and no outstanding corrective action exists.
Notably, OSEP also says the State must also “maintain documentation and evidence” demonstrating that the LEA or EIS programs/providers have corrected each individual case of previously noncompliant files, records, files, and “whatever data source was used to identify the original noncompliance.”
For more information on OSEP’s press release and guidance documents, visit this link.