Special Education

Overview of the Annual Performance Report Development:

See Overview of the Development of the Annual Performance Report (APR) in the Introduction section, page 1.

Monitoring Priority: FAPE in the LRE

Indicator 15:  General supervision system (including monitoring, complaints, hearings, etc.) identifies and corrects noncompliance as soon as possible but in no case later than one year from identification.
(20 U.S.C. 1416 (a)(3)(B))

Measurement:

Percent of noncompliance corrected within one year of identification:

  1. # of findings of noncompliance.
  2. # of corrections completed as soon as possible but in no case later than one year from identification.

Percent = [(b) divided by (a)] times 100.

For any noncompliance not corrected within one year of identification, describe what actions, including technical assistance and/or enforcement that the State has taken.

Data Source:

New York State (NYS) uses data taken from the State's general supervision system (including monitoring, State complaints, hearings, etc.).

Federal Fiscal Year (FFY) Measurable and Rigorous Target
FFY 2012
100 percent of noncompliance issues identified through the State’s general supervision system (including monitoring, complaints, hearings, etc.) will be corrected within one year from identification.

Actual Target Data for FFY 2012:

90.8 percent of noncompliance issues identified between July 1, 2011 and June 30, 2012 through the State's general supervision system (including monitoring, State complaints, hearings, etc.) were corrected within one year of identification.

Table:  Indicator B15 Worksheet

Indicator/ Indicator Clusters General Supervision System Components # of LEAs Issued Findings in FFY 2011 (7/1/11 to 6/30/12) (a) # of Findings of noncompliance identified in FFY 2011 (7/1/11 to 6/30/12) (b) # of Findings of noncompliance from (a) for which correction was verified no later than one year from identification
1. Percent of youth with IEPs graduating from high school with a regular diploma.
2. Percent of youth with IEPs dropping out of high school.

14. Percent of youth who had IEPs, are no longer in secondary school and who have been competitively employed, enrolled in some type of post-secondary school, or both, within one year of leaving high school.
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 0 0 0
Dispute Resolution: Complaints, Hearings 0 0 0

3. Participation and performance of children with disabilities on statewide assessments.


7. Percent of preschool children with IEPs who demonstrated improved outcomes.

Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 2 2 1
Dispute Resolution: Complaints, Hearings 0 0 0
4A.1 Percent of districts identified as having a significant discrepancy in the rates of suspensions and expulsions of children with disabilities for greater than 10 days in a school year.
4B.  Percent of districts identified by the State as having a significant discrepancy in the rates of suspensions and expulsions of greater than 10 days in a school year of children with disabilities by race and ethnicity.
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 14 124 92
Dispute Resolution: Complaints, Hearings 0 0 0
5.Percent of children with IEPs aged 6 through 21 - educational placements.

6.Percent of preschool children aged 3 through 5 – early childhood placement.
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 54 127 121
Dispute Resolution: Complaints, Hearings 62 111 106
8.   Percent of parents with a child receiving special education services who report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 6 7 7
Dispute Resolution: Complaints, Hearings 18 23 23
9.2 Percent of districts with disproportionate representation of racial and ethnic groups in special education that is the result of inappropriate identification.

10. Percent of districts with disproportionate representation of racial and ethnic groups in specific disability categories that is the result of inappropriate identification.
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 11 53 53
Dispute Resolution: Complaints, Hearings 0 0 0
11. Percent of children who were evaluated within 60 days of receiving parental consent for initial evaluation or, if the State establishes a timeframe within which the evaluation must be conducted, within that timeframe. Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 68 106 102
Dispute Resolution: Complaints, Hearings 0 0 0
12. Percent of children referred by Part C prior to age 3, who are found eligible for Part B, and who have an IEP developed and implemented  by their third birthdays. Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 11 11 9
Dispute Resolution: Complaints, Hearings 0 0 0
13. Percent of youth aged 16 and above with IEP that includes appropriate measurable post-secondary goals that are annually updated and based upon an age-appropriate transition assessment, transition services, including courses of study, that will reasonably enable the student to meet those post-secondary goals, and annual IEP goals related to the student’s transition service needs. Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 53 97 94
Dispute Resolution: Complaints, Hearings 0 0 0
Other areas of noncompliance:
Behavior Intervention Plans
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 54 180 149
Dispute Resolution: Complaints, Hearings 14 28 28
Other areas of noncompliance:
Committee on Preschool Special Education (CPSE)/Committee on Special Education (CSE) Membership
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 2 4 4
Dispute Resolution: Complaints, Hearings 9 11 11
Other areas of noncompliance:
Discipline
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 28 105 86
Dispute Resolution: Complaints, Hearings 6 6 5
Other areas of noncompliance:
Educational Facilities
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 6 9 8
Dispute Resolution: Complaints, Hearings 0 0 0
Other areas of noncompliance:
IEP Development/Implementation
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 29 65 64
Dispute Resolution: Complaints, Hearings 35 56 52
Other areas of noncompliance:
Personnel Qualifications
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 2 2 2
Dispute Resolution: Complaints, Hearings 2 2 2
Other areas of noncompliance:
Unique Situations
Monitoring Activities:  Self-Assessment/ Local APR, Data Review, Desk Audit, On-Site Visits, or Other 42 56 53
Dispute Resolution: Complaints, Hearings 29 42 42
Sum of the numbers down Column a and Column b 1227
1114
Percent of noncompliance corrected within one year of identification = (column (b) sum divided by column (a) sum) times 100.
(b) / (a) X 100 = 90.79054

Describe the process for selecting LEAs for monitoring:

NYS has general supervisory responsibility for 698 public school districts, including the Big 5 School Districts of New York City (NYC), Yonkers, Syracuse, Buffalo and Rochester; 37 Boards of Cooperative Educational Services (BOCES); 539 approved private day and residential programs (preschool and school age); 10 Special Act school districts; 11 State-supported schools; numerous other State agency-operated education programs, two State-operated schools and 184 Charter Schools.  The State’s system identifies noncompliance through data collection, State complaints, self-review monitoring processes, on-site reviews and impartial hearings.

For compliance relating to Indicators 11 (timely evaluations), 12 (Early Intervention to preschool special education) and 13 (transition services), the State monitors a representative sample of one-sixth of the school districts and NYC annually. 

In addition, districts are selected for targeted monitoring to review their policies, procedures and practices relating to:

  • development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards whenever a school district's data show significant discrepancies in their rates of long-term suspension of students with disabilities and/or when their data shows a significant discrepancy by race/ethnicity in high suspension rates;
  • individual evaluations and eligibility determinations by the CSE whenever a school district's data show significant disproportionality by race/ethnicity in the identification of students with disabilities;
  • individual evaluations of students with disabilities and CSE recommendations whenever a school district's data show significant discrepancies and/or disproportionality by race/ethnicity in the identification of students with disabilities in specific disability categories (Emotional Disturbance, Learning Disability, Intellectual Disabilities, Other Health Impairment, Speech or Language Impairment and Autism); and
  • CSE evaluations, IEP development and placement recommendations whenever the district's data show significant discrepancies and/or disproportionality by race/ethnicity in the placement of students with disabilities.

School districts that have unresolved noncompliance beyond 12 months for Indicators 4, 9, 10, 11, 12 and 13 plus school districts that have been identified for multiple years because of disproportionate data are also selected for additional monitoring reviews.

Districts are also selected for monitoring reviews and/or technical assistance in consideration of the State’s Individuals with Disabilities Education Act (IDEA) Annual Determination process, which identifies school districts that need assistance, intervention or substantial intervention.  Focused review protocols include reviews relating to Evaluation/Reevaluation, Special Education Program and Services Focused Review, Annual Review Process, Behavioral Interventions and Secondary Transition.  Selection of the monitoring protocol is based on data, nature of technical assistance calls, concerns raised by parents and input from the District Superintendent from the BOCES and the State’s technical assistance providers. 

Education programs of BOCES, approved preschool programs, approved private schools, Special Act School Districts, State-supported schools and State-operated schools are selected for monitoring on a rotating schedule, but also in consideration of compliance concerns.  Facilities operated by the NYS Office of Children and Family Services (OCFS) are monitored every four years as required by statute.

Selected school-age approved private residential schools and Special Act school districts received focused monitoring reviews in the areas of behavioral interventions, use of time out rooms, emergency interventions and, as appropriate, procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

In 2013-14, the State initiated a reapproval review process of approved preschool providers.  Each year 50, or approximately 10 percent of all preschool providers, will be reviewed.

Discussion of Improvement Activities Completed and Explanation of Progress or Slippage that occurred for FFY 2011:

Explanation of Progress or Slippage

The State did not meet its target of 100 percent.  In FFY 2011, the State reported that 93.5 percent of noncompliance issues identified through the State's general supervision system (including monitoring, State complaints, hearings, etc.) were corrected within one year of identification.  The FFY 2012 data show a 90.5 percent correction rate. 

NYS requests consideration by Office of Special Education Programs (OSEP) of the effect of Hurricane Sandy on results for this indicator.  In the fall of 2012, Hurricane Sandy caused extensive devastation of property and infrastructure damage to many communities in NYS, particularly in the Long Island, Lower Hudson and NYC regions of the State.  Many schools were temporarily closed, many students were temporarily displaced from their residences from one school district to another school district and many families became temporarily homeless.  In NYC alone, 57 schools received extensive damage and some remained close for an extensive period.  As a result, many school districts were not able to focus attention on correction of compliance issues.

Improvement Activities Completed in 2012-13

  • IDEA discretionary funds were used to provide funds to approved private schools and Special Act school districts to provide tuition for coursework and test preparation support to uncertified teachers seeking teacher certification.
  • The State used IDEA discretionary funds to support intensive teacher institutes and to fund personnel preparation projects to address personnel shortages in bilingual areas (such as special education teachers, psychologists and speech and language therapists.)
  • The State continues to implement Court Order Settlement Agreements (DD, Ray M., Jose P.) for the timely evaluation and placement of preschool children.
  • The State accessed and used federal technical assistance to further inform its activities to improve identification and correction of noncompliance as follows:
    • Office of Special Education managers and staff routinely participated in meetings, teleconferences and Community of Practice (CoP) webinars related to all aspects of the various indicators in an effort to ensure consistency, accuracy and reliability of the data being collected, analyzed and reported.
    • Staff attended the 2013 OSEP Leadership Conference.
    • Regular participation in the Northeast Regional Resource Center (NERCC) Legal and Regulatory Workgroup’s twice yearly forums assisted our State teams’ legal counsel, special education policy and other key staff to remain current in legal and policy developments, systems operations issues, and evaluation of short-term and long-term impact of implementation of the IDEA.
    • Staff participated in NERCC State to Local monitoring workgroups.
  • See individual Indicator sections (4, 9, 10, 11, 12 and 13) for information on activities completed to address resolution of issues of noncompliance.
  • The monitoring staff sent out reminder notices 30 days before a corrective action due date and followed up with telephone calls in order to facilitate the correction in a timely manner. 
  • Monitoring staff initiated 19 Behavioral Management and Support Focused Reviews to determine if approved private residential schools and Special Act school districts serving students with disabilities appropriately address student behaviors and support the continued implementation of quality behavioral management practices.
  • In 2012-13, monitoring staff initiated 49 preschool reapproval reviews and three compliance reviews to determine if NYS’ approved preschool providers are in compliance with federal and State laws and regulations regarding the provision of special education programs and services for preschool students with disabilities.  The efficiency of each provider’s service delivery model was also assessed during the re-approval reviews.  Special Education Quality Assurance (SEQA) staff met regularly with preschool providers to address questions regarding special education requirements, program efficiencies, and outstanding program needs in various regions of the State. 
  • The NYC Regional Office (NYCRO) monitoring staff met NYC Department of Education cluster and network personnel on a monthly basis to provide technical assistance in the areas of timely provision of special education programs and services, requirements for providing IEPs to teachers and service providers, transition plans, IEP development, positive behavioral interventions and supports, and the timely evaluation of preschool and school-age students.

Timely Correction of FFY 2011 Findings of Noncompliance (corrected within one year from identification of the noncompliance):

  1. Number of findings of noncompliance the State identified in FFY 2011 (the period from July 1, 2011 through June 30, 2012)  (Sum of Column a on the Indicator B15 Worksheet)
1227
  1. Number of findings the State verified as timely corrected (corrected within one year from the date of notification to the LEA of the finding)  (Sum of Column b on the Indicator B15 Worksheet)
1114
  1. Number of findings not verified as corrected within one year [(1) minus (2)]
113

FFY 2011 Findings of Noncompliance Not Timely Corrected (corrected more than one year from identification of the noncompliance and/or Not Corrected):

  1. Number of FFY 2011findings not timely corrected (same as the number from (3) above)
113
  1. Number of FFY 2011 findings the State has verified as corrected beyond the one-year timeline (“subsequent correction”)
63
  1. Number of FFY 2011 findings not yet verified as corrected [(4) minus (5)]
50

Verification of Correction for findings of noncompliance identified in FFY 2011 (either timely or subsequent):

For all FFY 2011 noncompliance verified as corrected, NYS verified that each local educational agency (LEA) with noncompliance: (1) was correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2011 (including any revisions to general supervision procedures, technical assistance provided and/or any enforcement actions that were taken):

The State verified the correction of 1,177 out of 1,227 findings of noncompliance, timely or subsequent.

For noncompliance cited in monitoring, State complaints and hearing decisions:

The State verified correction of noncompliance for the individual student through such means as a review of written reports, revised notices to parents, revised IEPs, observation in classrooms, etc.  Compliance assurance plans (CAP) identify the specific documentation required for submission to the State to verify the correction of noncompliance.  In addition, as applicable to the specific finding, the State reviewed subsequent data from other student records, conducted observations in other classrooms, etc., to ensure that the issue had been corrected for all students (i.e., subsequent data show 100 percent compliance with specific regulatory requirements).  The size of the subsequent verification sample varied based on such factors as the specific compliance issue, size of the district, and initial extent of the findings of noncompliance.

Also see specific processes for verification of correction reported under Indicators 4, 9, 10, 11, 12 and 13.  These processes are described below:

Issues relating to suspension and review of policies, practices and procedures relating to development and implementation of IEPs, the uses of positive behavioral interventions and supports and procedural safeguards for students with disabilities subject to discipline (Indicator 4):

The State verified correction of noncompliance for Indicator 4 as follows:

  • For noncompliance identified based on self-reviews, the State required the district to submit an assurance from the School Superintendent that each instance of noncompliance was corrected, that the information reported is accurate, and the district will maintain documentation subject to review by the State Education Department (SED).
  • When data identifies a district below target levels for consecutive years, the State’s monitoring staff conducted a review of the district’s policies, procedures and practices through on-site monitoring.

For noncompliance identified based on on-site monitoring, the State’s monitoring staff reviewed revised policies and a sample of student records to verify that the district is correctly implementing the specific regulatory requirements and that individual instances of noncompliance had been corrected.

Issues relating to disproportionality by race/ethnicity (Indicators 4B, 9 and 10):

For correction of noncompliance identified through self-review monitoring reports, the State required that the school district submit its report of correction of each issue of noncompliance with an assurance by the School Superintendent of its accuracy and that each instance, in addition to any systemic issues, has been corrected.  For issues of disproportionality by race/ethnicity, the State required the district to publicly report on revisions to its policies, procedures and practices.

When data identifies a district below target levels for consecutive years, monitoring staff either go into districts to verify data, both for individuals and systems, or initiate a full review.  In the State’s process to verify the correction of noncompliance identified through on-site monitoring, the State reviewed, as appropriate, all or a sample of student records to ensure that the district is correctly implementing the specific regulatory requirements and that individual instances of noncompliance have been corrected. 

For issues relating to timely evaluations (Indicator 11):

The State required school districts with less than a 100 percent compliance rate for this indicator to submit a statement of assurance from the School Superintendent of correction of the identified noncompliance.  Prior to the school district’s submission that it had corrected the noncompliance, it was required to conduct a review to ensure that each identified student, whose initial evaluation was not completed in compliance with State timelines, and for whom data was not already available in the Student Information Repository System (SIRS), had since had his or her initial evaluation completed.  This information was to be documented on a form provided by the State and maintained by the district, subject to review by the State.  The district was also required to monitor and document over a three-month period that all students (or a representative sample for the Big Four districts) had their individual evaluations completed within the required time period.  These results were also required to be documented on a form provided by the State.  NYC’s annual submission of data for this indicator has been used to verify that all children are receiving their individual evaluations within the required timelines.

Based on a regional sampling methodology, selected school districts that have submitted a statement of assurance of corrected noncompliance were selected for verification reviews on the accuracy of their reports.  If it was identified that the school district continued to have areas of noncompliance, a CAP was issued by the State to address any instances of individual noncompliance, as well as to resolve any underlying systemic reason(s) for the noncompliance.

For noncompliance with the requirement that special education services be provided to preschool children with disabilities by their 3rd birthdays in compliance with State law (Indicator 12):

The State required school districts with less than a 100 percent compliance rate to submit a statement of assurance of correction of the identified noncompliance.  The School Superintendent was required to submit an assurance that the information reported to the State is accurate.  Prior to the school district’s submission that it has corrected the noncompliance, it is required to conduct a review to document, on a form provided by the State, that each identified student who did not receive his or her preschool special education services by his or her 3rd birthday or within the timeline required by State regulations and for whom data was not already available in SIRS, has since had his or her IEP developed and implemented or, if not, there is a reason that is in compliance with State requirements.

Based on a regional sampling methodology, the State selected school districts that had submitted a statement of assurance of corrected noncompliance for an on-site review to verify the accuracy of the report.  If it was identified that the school district continued to have areas of noncompliance, SED issued and closely monitored a CAP to address any instances of individual noncompliance as well as to resolve any underlying systemic reason(s) for the noncompliance. 

For issues related to transition planning (Indicator 13):

To verify correction of noncompliance, the State required the school district to document on a State-developed Individual Student Record Review Form that, for each student whose IEP did not include appropriate transition goals and services and for whom the district continues to have CSE responsibility, the CSE has met to develop a new IEP that is in compliance with the transition requirements.  In addition, the school district must have addressed the reasons why the students did not receive appropriate IEPs in order to ensure that other students will have appropriate transition planning in their IEPs.  Upon completion of the individual IEP reviews and a determination that the district has resolved the reason(s) for the noncompliance, the School Superintendent was required to provide a written assurance verifying accuracy of the district’s report to the State.  All reports to the State were subject to verification.

The State verified correction of noncompliance by reviewing individual student records, including records of individual students whose IEPs were identified as noncompliant.  The State also verifies the correction of noncompliance for NYC by requiring annual monitoring for compliance with this indicator.

Actions Taken if Noncompliance Not Corrected:

There were a total of 52 findings identified in 2011 that were not timely or subsequently corrected.  These findings persist in just six schools/districts, four of which are located in regions impacted by Hurricane Sandy.  As stated above, NYS requests consideration of the effects of Hurricane Sandy on schools’/districts’ ability to prove and the State’s ability to verify correction of findings of noncompliance in the 2012-13 school year.

Following is a description, by school/district identified by letters A-F below, of the nature of the noncompliance finding(s), why the noncompliance has persisted, steps the State has taken to ensure such correction and any new or different actions the State will take to enforce such correction of the 52 instances of noncompliance found in six public school districts and two approved private schools.

School/District A:

Nature of the noncompliance:  Transition plans developed by the CSE of the approved private school were not in accordance with regulatory requirements; not all teachers were appropriately certified for their teaching assignments.

Why the noncompliance has persisted: This approved private school has two findings of continuing noncompliance.  Upon review, the State found that the CSE was not knowledgeable about the regulatory requirements relating to transition plans and planning.  For certification issues, the State found that the teachers were pursuing certification but the length of time necessary for teachers to complete their courses of study to become certified contributed to the persistence of the noncompliance.

Actions taken: The State issued three updates to the school’s corrective action plan and conducted two on-site monitoring visits; provided ongoing technical assistance via telephone communication; is monitoring the school’s transition plans to determine if improvements have been made since the school hired a consultant to provide ongoing professional development related to regulatory transition plans and transition planning activities; and is also monitoring the school’s recruitment efforts to obtain appropriately certified staff. 

School/District B:

Nature of the noncompliance:  Placement decisions for students including placing students in the least restrictive environment.

Why the noncompliance has persisted:  This district has one finding of continuing noncompliance.  The noncompliance has persisted because the district has resisted changing its practice of placing specific groups of students in approved private schools when lesser restrictive placements were available, even after enforcement actions have been imposed.  During follow-up reviews, the State found reoccurring noncompliance related to LRE placement decisions by the district. The district initiated a lawsuit regarding the State’s findings.  In January 2014, the State prevailed in the State Supreme Court. 

Actions taken: The district was required to meet with State education officials, publicize the State’s review findings, submit paper applications with all required documentation to request reimbursement for placements at three approved private schools, and reconvene additional CSE meetings.  The State has not approved State aid reimbursement in cases where the State found the district did not comply with LRE requirements for individual students.  In 2013, the State identified the district as needing intervention.  The findings of a recent review by the State are being analyzed to determine if the district has remaining noncompliance.  If noncompliance is present, the State may require the district to comply with additional enforcement actions during the 2013-14 school year.

School/District C:

Nature of the noncompliance: Suspension of students with disabilities

Why the noncompliance has persisted:  This district has two findings of continuing noncompliance.  Reasons for persistence of noncompliance include lack of resources, administrative issues and a dysfunctional governance structure.

Actions taken: The district was identified as needing intervention.  In April 2013, the Commissioner initiated a special investigation of the district to determine the reasons the district has not been able to resolve the noncompliance.  The final report has not yet been issued.  The State continued to request and review documents, perform site visits and provide technical assistance in an effort to help the district resolve its issues of noncompliance.  The district was required to redirect a portion of its 2012-13 IDEA funds to hire a special education consultant to assist the district in developing an action plan to revise its policies, practices and procedures.  The State is also conducting a review of the district’s IDEA grant expenditures.  New enforcement actions will be determined based on the final report of the special investigation.

School/District D: 

Nature of the noncompliance:  Inappropriate policies, procedures and practices relating to the suspension of students with disabilities.

Why the noncompliance has persisted:  The district has 29 findings of noncompliance.  The district was found to have a less than adequate system for data collection and system for tracking of suspensions of students, insufficient oversight and accountability of suspension procedures, as well as insufficient guidance provided to schools regarding the implementation of suspensions.  The noncompliance has persisted, in part, due to the size of the district and the challenge of district administration to ensure all of its schools are using appropriate practices consistent with district guidance.  The district’s failure to correct these issues, in part, also stemmed from redirection of administrative and staff attention to issues resulting from Hurricane Sandy and a bus strike that impacted student school attendance for a protracted period of time.

Actions taken:  In 2012-13, the State identified the district as needing intervention, in part because of continuing noncompliance.  An updated corrective action plan was issued and monthly meetings were held with district administrators and staff to discuss proactive strategies that could effectively reduce the number of suspensions.  The State’s Technical Assistance Center on Disproportionality provided professional development on root cause analysis, understanding data, and the provision of culturally responsive education to several schools within the district.  The State has been actively engaged with the district on the implementation of an improvement plan that addresses behavior.  The plan involves issuing clear policy on behavioral supports and interventions, including when to consider implementing a functional behavioral assessment (FBA) and a behavioral intervention plan (BIP); using data to identify schools in need of professional development and support; identifying school staff who will be responsible for monitoring the work related to behavior supports and interventions; establishing behavior support teams within targeted schools; providing professional development and coaching within targeted schools to improve practices related to FBAs and BIPs; and conducting regularly scheduled reviews of IEPs, FBAs, and BIPs.

School/District E:

Nature of noncompliance:  Eleven (11) findings of noncompliance related to disproportionality based on inappropriate policies, procedures and practices related to the suspension of students with disabilities. 

Why the noncompliance has persisted: The district lacks sufficient policies, practices and procedures regarding the discipline and suspension of students with disabilities. Additional reasons for persistence of noncompliance include lack of resources and a lack of efficient communication between top level district administration and school building leadership.  In addition, the district is lacking consistent and systemic positive behavioral supports.  Student engagement in the classroom is an area of concern as not all teachers are effectively supported and trained in explicit instruction.

Actions taken: The State identified the district as needing assistance, in part as a result of continuing noncompliance.  The district was required to obtain technical assistance and implement a corrective action plan.  The State is monitoring the implementation of the plan and improvement activities to address the instructional and behavioral supports provided to students with disabilities. 

School/District F:

Nature of noncompliance:  Seven findings of noncompliance related to disproportionality by race/ethnicity in suspensions of students with disabilities due to inappropriate policies, procedures and practices. 

Why the noncompliance has persisted:  The district has not engaged in improvement activities as identified by the State’s Technical Assistance Center on Disproportionality.  This district is located in the region of the State impacted by the effects of Hurricane Sandy in 2012, which may have resulted in a redirection of the district’s attention to other matters. 

Actions taken:  The State identified the district as needing assistance, in part as a result of continuing noncompliance.  The State conducted a comprehensive review of the district’s practices and provided technical assistance during that time.  A corrective action plan was issued and systemic changes in practice were required to address the noncompliance.  The State is monitoring the district’s implementation of the corrective action plan. 

Correction of Remaining FFY 2010 Findings of Noncompliance (if applicable):
  1. Number of remaining FFY 2010 findings noted in Office of Special Education Programs' (OSEP) July 2013 FFY 2011 APR response table for this indicator (2009-20).
26
  1. Number of remaining FFY 2010 findings the State has verified as corrected
13
  1. Number of remaining FFY 2010 findings the State has not verified as corrected [(1) minus (2)]
13

Verification of Correction of Remaining 2010 findings:

In 2012-13, the State verified the correction of 13 findings of noncompliance that were first identified in FFY 2010.  The State verified that the school/district: (1) was correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2010 (including any revisions to general supervision procedures, technical assistance provided and/or any enforcement actions that were taken):

In 2012-13, the State verified the correction of 13 findings of noncompliance that were first identified in FFY 2009.  The process the State used for the verification of noncompliance is the same process as identified above.  The correction of all findings over 12 months from identification was verified by monitoring staff, assuring correction of findings for individuals and systemic change. 

Actions Taken if Noncompliance Not Corrected:

The 13 findings of noncompliance that remain uncorrected were identified in two school districts and one approved out of state schools (identified below as G, H, and I).  Two of the districts with continuing noncompliance also have uncorrected FFY 2011 findings as described above.  Following is a description, by school, of the nature of the noncompliance finding(s), why the noncompliance has persisted, steps the State has taken to ensure such correction and any new or different actions the State will take to enforce such correction of the 13 instances of noncompliance found in two public school districts and one approved private school.

School/District G:

Nature of the noncompliance:  Disproportionality by race/ethnicity in the classification and placement of students with disabilities due to inappropriate policies, procedures and practices; meeting notice and timely evaluations.

Why the noncompliance has persisted:  There are six findings of continuing noncompliance by this district.  This is the same district described as district C above.  Reasons for persistence of noncompliance include lack of resources, administrative issues and a dysfunctional governance structure.

Actions taken:  The district was identified as needing intervention.  In April 2013, the Commissioner initiated a special investigation of the district to determine the reasons the district has not been able to resolve the noncompliance.  The final report has not yet been issued.  The State continued to request and review documents, perform site visits and provide technical assistance in an effort to help the district resolve its issues of noncompliance.  The district was required to redirect a portion of its 2012-13 IDEA funds to hire a special education consultant to assist the district in developing an action plan to revise its policies, practices and procedures.  The State is also conducting a review of the district’s IDEA grant expenditures.  New enforcement actions will be determined based on the final report of the special investigation.

School/District H

Nature of the noncompliance:  Placement decisions for students including placing students in the least restrictive environment.

Why the noncompliance has persisted:  This district has one finding of continuing noncompliance.  The noncompliance has persistent because the district has resisted changing its practice of placing specific groups of students in approved private schools (when lesser restrictive placements are available), even after enforcement actions have been imposed.  During follow-up reviews, the State found reoccurring noncompliance related to LRE placement decisions by the district.  The district initiated a lawsuit regarding the State’s findings.  In January 2014, the State prevailed in the State Supreme Court. 

Actions taken: The district was required to meet with State education officials, publicize the State’s review findings, submit paper applications with all required documentation to request reimbursement for placements at three approved private schools, and reconvene additional CSE meetings.  The State has not approved State aid reimbursement in cases where the State found the district did not comply with LRE requirements for individual students.  In 2013, the State identified the district as needing intervention.  The findings of a recent review by the State are being analyzed to determine if the district has remaining noncompliance.  If noncompliance is present, the State may require the district to comply with additional enforcement actions during the 2013-14 school year.

School/district I:

Nature of the noncompliance:  Six findings of noncompliance relating to the use of behavioral interventions and provision of instruction during periods of suspension.

Why the noncompliance has persisted:  Although the school resolved its student-specific noncompliance that was identified in the complaint, ongoing systemic issues related to policies, practices and procedures have been identified. 

Actions taken:  The State sent correspondence to the school, conducted site visits, had onsite meetings with school administration and requested additional information to ensure that corrective actions were being implemented.  Revisions to practices are currently under review to verify correction of noncompliance for all students. 

Correction of Remaining FFY 2009 Findings of Noncompliance (if applicable):

  1. Number of remaining FFY 2009 findings noted in OSEP’s July 2013 FFY 2011 APR response table for this indicator  (2009-10)
27
  1. Number of remaining FFY 2009 findings the State has verified as corrected
13
  1. Number of remaining FFY 2009 findings the State has not verified as corrected [(1) minus (2)]
14

Verification of Correction of Remaining 2009 findings:

The State verified that each district: (1) was correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2009 (including any revisions to general supervision procedures, technical assistance provided and/or any enforcement actions that were taken):

In 2012-13 the State verified the correction of 13 findings of noncompliance that were first identified in FFY 2009.  The process the State used for the verification of noncompliance is the same process as identified above.  The correction of all findings over 12 months from identification was verified by monitoring staff, assuring correction of findings for individuals and systemic change. 

Actions Taken if Noncompliance Not Corrected:

The 14 findings of noncompliance that remain uncorrected were identified in two school districts (identified as J and K below).  Following is a description, by district, of the nature of the noncompliance finding(s), why the noncompliance has persisted, steps the State has taken to ensure such correction and any new or different actions the State will take to enforce such correction of the 14 instances of noncompliance found in two public school districts.

School/district J:

Nature of the noncompliance: There are five findings of inappropriate procedures and practices relating to the suspension of students with disabilities.

Why the noncompliance has persisted:  Reasons for persistence of noncompliance include recent top level district administration turn over, lack of resources and a lack of efficient communication between top level district administration and school building leadership.  The district has developed an action plan with appropriate policies and procedures to correct the noncompliance.  However, the district has been ineffective in implementing the newly developed policies and procedures.

Actions taken:  This district was identified by the State as needing intervention, in part because of continuing noncompliance.  The State required the district to develop an action plan to correct overdue noncompliance.  With the State’s guidance and technical assistance, the district was able to correct the majority of its noncompliance reported in the FFY 2011 APR.  The State will issue additional enforcement actions to the district if all noncompliance is not resolved during the 2013-14 school year.

School/district K: 

Nature of the noncompliance:  Inappropriate policies and procedures relating to the provision of services to students in long term suspensions, lack of behavioral interventions for students whose behavior impedes learning, IEPs inconsistent with regulations, untimely and inappropriate evaluations. 

Why the noncompliance has persisted:  Reasons for persistence of noncompliance include lack of resources, administrative issues and a dysfunctional governance structure.

Actions taken:  The district was identified as needing intervention.  In April 2013, the Commissioner initiated a special investigation of the district to determine the reasons the district has not been able to resolve the noncompliance.  The final report has not yet been issued.  The State continued to request and review documents, perform site visits and provide technical assistance in an effort to help the district resolve its issues of noncompliance.  The district was required to redirect a portion of its 2012-13 IDEA funds to hire a special education consultant to assist the district in developing an action plan to revise its policies, practices and procedures.  The State is also conducting a review of the district’s IDEA grant expenditures.  New enforcement actions will be determined based on the final report of the special investigation.

Correction of Remaining FFY 2008 Findings of Noncompliance (if applicable):

  1. Number of remaining FFY 2008 findings noted in OSEP’s July 2013 FFY 2011 APR response table for this indicator (2008-09)
51
  1. Number of remaining FFY 2008 findings the State has verified as corrected
8
  1. Number of remaining FFY 2008 findings the State has not verified as corrected [(1) minus (2)]
43

Verification of Correction of Remaining 2008 findings:

For all FFY 2008 noncompliance verified as corrected, NYS verified that each LEA with noncompliance: (1) was correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2008 (including any revisions to general supervision procedures, technical assistance provided and/or any enforcement actions that were taken):

In 2012-13, the State verified the correction of eight findings of noncompliance that were identified in FFY 2008.  The process the State used for the verification of noncompliance is the same process as identified above.  The correction of all findings over 12 months from identification were verified individually by State personnel, assuring correction of findings for individuals and systemic change in accordance with OSEP Memorandum 09-02.

Actions Taken if Noncompliance Not Corrected:

The 43 unresolved instances of noncompliance were all found in one school district.  This district is one of the same districts with continuing noncompliance identified in FFY 2009, 2010 and 2011.  Following is a description of the nature of the noncompliance finding(s), why the noncompliance has persisted, steps the State has taken to ensure such correction and any new or different actions the State will take to enforce such correction.

School/district L:

Nature of the noncompliance: Behavioral assessments and interventions, manifestation determinations, IEP implementation, reevaluations, suspensions, placements in the least restrictive environment, continuum of services, and use of specially designed instruction.

Why the noncompliance has persisted:  Reasons for persistence of noncompliance include lack of resources, administrative issues and a dysfunctional governance structure.

Actions taken: The district was identified as needing intervention.  In April 2013, the Commissioner initiated a special investigation of the district to determine the reasons the district has not been able to resolve the noncompliance.  The final report has not yet been issued.  The State continued to request and review documents, perform site visits and provide technical assistance in an effort to help the district resolve its issues of noncompliance.  The district was required to redirect a portion of its 2012-13 IDEA funds to hire a special education consultant to assist the district in developing an action plan to revise its policies, practices and procedures.  The State is also conducting a review of the district’s IDEA grant expenditures.  New enforcement actions will be determined based on the final report of the special investigation.

Correction of Remaining FFY 2007 Findings of Noncompliance (if applicable):

  1. Number of remaining FFY 2007 findings noted in OSEP’s July 2013 FFY 2011 APR response table for this indicator 
22
  1. Number of remaining FFY 2007 findings the State has verified as corrected
0
  1. Number of remaining FFY 2007 findings the State has not verified as corrected [(1) minus (2)]
22

Verification of Correction of Remaining 2007 findings:

For all FFY 2007 noncompliance verified as corrected, NYS verified that the LEA with noncompliance: (1) was correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child was no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.

Describe the specific actions that the State took to verify the correction of findings of noncompliance identified in FFY 2007 (including any revisions to general supervision procedures, technical assistance provided and/or any enforcement actions that were taken):

The process the State used for the verification of correction of noncompliance is the same process as identified above.  The correction of all findings over 12 months from identification must be verified individually by State personnel, assuring correction of findings for individuals and systemic change in accordance with OSEP Memorandum 09-02.

Actions Taken if Noncompliance Not Corrected:

The remaining 22 findings of noncompliance were in two school districts and one approved private school.  Twenty (20) of the 22 findings of noncompliance identified in 2007 were in one school district.

Following is a description of the nature of the noncompliance finding(s), why the noncompliance has persisted, steps the State has taken to ensure such correction and any new or different actions the State will take to enforce such correction. 

School/district M:

Nature of the noncompliance: Disproportionality by race/ethnicity in the long-term suspension of students with disabilities that are the result of inappropriate policies, procedures and practices; and timely evaluations and placements of preschool students with disabilities.

Why the noncompliance has persisted: Reasons for persistence of noncompliance include lack of resources, administrative issues and a dysfunctional governance structure.

Actions taken: The district was identified by the State as a district in need of intervention.  In April 2013, the Commissioner initiated a special investigation of the district to determine the reasons the district has not been able to resolve the noncompliance.  The final report has not yet been issued.  The State continued to request and review documents, perform site visits and provide technical assistance in an effort to help the district resolve its issues of noncompliance.  The district was required to redirect a portion of its 2012-13 IDEA funds to hire a special education consultant to assist the district in developing an action plan to revise its policies, practices and procedures.  The State is also conducting a review of the district’s IDEA grant expenditures.  New enforcement actions will be determined based on the final report of the special investigation.  

School/District N:

Nature of the noncompliance:  Teacher certification

Why the noncompliance has persisted:  Difficulties in recruitment due to salary differentials with the public sector.  Teachers within the program are enrolled in programs leading to certification, which takes time.

Actions Taken:  The State met with the school to review its hiring practices and to monitor implementation of the corrective action plan of the school.  The school has made significant progress in ensuring its teachers are appropriately certified. 

School/District O:

Nature of the noncompliance:  Provision of related services

Why the noncompliance has persisted:  Personnel shortage area; contractual and union issues.  The district has made significant progress in hiring qualified personnel. 

Actions Taken:  The State conducted monthly meetings with the district to monitor implementation of the corrective action plan and the district’s progress in ensuring provision of related services and efforts to recruit qualified staff in personnel shortage areas. 

Correction of Any Remaining Findings of Noncompliance from FFY 2006 (if applicable):

NYS does not have any uncorrected noncompliance related to this indicator from FFY 2006.

Additional Information Required by the OSEP APR Response Table

Statement from the OSEP Response Table State’s Response
The State must demonstrate, in the FFY 2012 APR, that the remaining 27 findings of noncompliance identified in FFY 2009, 51 findings of noncompliance identified in FFY 2008, 22 findings of noncompliance identified in FFY 2007, that were not reported as corrected in the FFY 2011 APR, were corrected. The State has corrected:
0 of the 22 findings identified in FFY 2007;
8 of the 51 findings identified in FFY 2008;
13 of the 27 findings identified in FFY 2009;
13 of the 26 findings identified in FFY 2010; &
63 of the 115 findings identified in FFY 2011
The remaining findings of noncompliance are found in just six school districts and two approved private schools (some with uncorrected findings from multiple years).  The State described above the progressive enforcement actions it has taken with each school district with continuing noncompliance.
When reporting in the FFY 2012 APR on correction of findings of noncompliance, the State must report that it verified that each LEA with findings of noncompliance identified in FFY 2011 and FFY 2009: (1) is correctly implementing the specific regulatory requirements (i.e., achieved 100 percent compliance) based on a review of updated data such as data subsequently collected through on-site monitoring or a State data system; and (2) has corrected each individual case of noncompliance, unless the child is no longer within the jurisdiction of the LEA, consistent with OSEP Memo 09-02.  In the FFY 2012 APR, the State must describe the specific actions that were taken to verify the correction.  In addition, in reporting on Indicator 15 in the FFY 2012 APR, the State must use and submit the Indicator 15 Worksheet. The detailed steps the State has taken to verify the correction of noncompliance are identified above.
The State used the Indicator 15 worksheet to report on this Indicator.
The State’s failure to correct longstanding noncompliance raises serious questions about the effectiveness of the State’s general supervision system.  The State must take the steps necessary to ensure that it can report, in the FFY 2012 APR, that it has corrected this noncompliance. Of the total uncorrected number of findings, more than 50 percent were found in one school district. The State is taking progressive enforcement actions with each of the districts/schools as identified above. 
Further, in responding to Indicators 4A, 4B, 9, 10, 11, 12 and 13 in the FFY 2012 APR, the State must report on correction of the noncompliance described in this table under those indicators. The State also reported on the correction of the noncompliance described in this table under those indicators.

Revisions, with Justification, to Proposed Targets / Improvement Activities / Timelines / Resources for FFY 2013 [If applicable]

None


1 When the same compliance issue is identified for a school district both for Indicator 4 and 4B, it is reported only once in Indicator 15.

2 When the same compliance issue is identified for a school district both for Indicators 9 and 10, both compliance issues are reported, but the district is reported only once in Indicator 15.

Last Updated: July 10, 2014