How the Department Made Determinations under Section 616(d) of the Individuals with Disabilities Education Act in 2009: Part B
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In making our determination for each State under section 616(d) of the Individuals with Disabilities Education Act (IDEA), we considered the State’s FFY 2007 Annual Performance Report (APR)/State Performance Plan (SPP) submission, information from monitoring visits, including verification reviews, and other public information, such as the State’s performance under any existing special conditions on its FFY 2008 grant or a compliance agreement, longstanding unresolved audit findings, and other State compliance data under the IDEA.
FFY 2007 APR/SPP Submissions
In reviewing the States’ FFY 2007 APR/SPP submissions, we considered both the submission of valid and reliable data and the level of compliance or correction.
With respect to data, for Indicators 1 through 19, we examined whether the State provided valid and reliable FFY 2007 data (e.g., the State provided all the required data, the data were for the correct year and were consistent with the required measurement and/or the approved SPP, and the State did not indicate that its data were not valid and reliable). For the results indicators (Indicators 1, 2, 3, 4A, 5, 7, 8, 14, 18 and 19), if the State did not provide valid and reliable data, we considered whether the State provided a plan to collect the missing or deficient data for reporting in next year’s APR/SPP submission. For Indicators 9, 10, 11, 12, 13, 15, 16, and 17, we also examined whether the State provided any FFY 2007 data, even if the data were not valid and reliable.
With respect to compliance, we examined Indicators 9, 10, 11, 12, 13, 15, 16, 17, and 20. With respect to these indicators, we looked for evidence that the State demonstrated substantial compliance either through reporting a very high level of compliance (generally 95% or better) or full correction of its FFY 2006 findings of noncompliance for Indicators 9, 10, 11, 12, and 13. If the State did not demonstrate either a very high level of compliance or full correction, we examined whether it nonetheless had maintained current levels, or made progress in ensuring compliance over its performance for that indicator as reported in its FFY 2006 SPP/APR submission. We considered “progress” to include reporting higher compliance numbers or reporting more accurate and complete compliance data compared to the data provided in the prior year’s submission. Indicator 15 evaluates “timely” correction, so for this indicator we specifically examined whether the correction was timely. For the other compliance indicators, we considered both whether the State timely corrected its FFY 2006 findings of noncompliance and whether the State subsequently corrected findings of noncompliance. We did not consider Indicators 16 and 17 if the State reported less than 100% compliance, but fewer than 10 complaints or 10 fully adjudicated hearings, in recognition of the inequities in basing decisions on small numbers.
Generally, and absent any other issues (see below), we considered a State to “meet requirements” if it provided valid and reliable FFY 2007 data consistent with, or substantially the same as, the measurement for each indicator and/or the approved SPP, and demonstrated substantial compliance for Indicators 9, 10, 11, 12, 13, 15, 16, 17, and 20. We determined that a State demonstrated substantial compliance if it provided data showing a very high level of compliance (generally 95% or better) or that it had fully corrected previously identified noncompliance. (Beginning with the Department’s determinations in 2010, we will require States to demonstrate correction of previously identified noncompliance consistent with OSEP’s Memorandum, 09-02, dated October 17, 2008, and will not consider a State to be in substantial compliance based on correction if its reported FFY 2007 data are low (generally 75% or lower).) If a State did not meet these standards for only one indicator, we considered the State to “meet requirements” if the compliance level for this indicator was high (generally 90% or better) or, for a data issue for a results indicator, if the State provided a plan to collect the data for next year. In no case, however, did we place a State in “meets requirements” if it failed to provide valid and reliable FFY 2007 data for compliance Indicators 9, 10, 11, 12, 13, 15, 16 or 17. We also considered whether the State, when it reported under Indicator 4A: (1) made clear that, if it identified any districts as having significant discrepancies in the discipline of children with disabilities, it reviewed and, if appropriate revised (or required the LEA to revise) its policies, procedures and practices related to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards, as required by 34 CFR §300.170(b); and (2) if the State identified any noncompliance in policies, procedures or practices in these areas as a result of this review, corrected the noncompliance.
Generally, and absent any other issues (see below), we considered a State to be “in need of intervention” if it demonstrated very low performance for Indicators 9, 10, 11, 12, 13, 15, 16 or 17 (generally 50% or below, or in the case of Indicators 9 and 10, 50% or above, and such performance did not represent progress (as defined above) over the prior year’s compliance data), and did not demonstrate full correction of its FFY 2006 findings of noncompliance. We also identified a State “in need of intervention” if it did not provide any FFY 2007 data on Indicators 9, 10, 11, 12, 13, 15, 16 or 17 or if the data for these indicators were not valid and reliable (as defined above). We also identified a State “in need of intervention” if it did not provide valid and reliable FFY 2007 data on one of the results indicators and did not provide a plan to collect and report that data.
We would identify a State as “in need of substantial intervention” if its substantial failure to comply significantly affected the core requirements of the program, such as the delivery of services to children with disabilities or the State’s exercise of general supervision, or if the State informed the Department that it was unwilling to comply with an IDEA requirement. In making this determination, we would consider the impact of any longstanding unresolved issues on the State’s current implementation of the program. We would also consider identifying a State “in need of substantial intervention” for failing to submit its APR/SPP.
We determined that States that did not “meet requirements” and were not “in need of intervention” or “in need of substantial intervention” were “in need of assistance,” absent any other issues (see below).
Monitoring Data and Other Public Information
We also considered other public information available to the Department, including information from OSEP monitoring activities, performance under pre-existing special conditions, and longstanding audit findings. We did not consider a State to “meet requirements” if the State had unresolved special conditions that were imposed as a result of the State being designated as a “high risk” grantee, outstanding OSEP monitoring findings, including verification visit findings, or longstanding audit issues or a compliance agreement. We considered the length of time the problem had existed, the magnitude of the problem, and the State’s response to the problem, including progress the State had made to correct the problem, in determining whether the State should be identified as “in need of assistance,” “in need of intervention,” or “in need of substantial intervention.” Finally, for States with a current Compliance Agreement covering the requirements of one or more indicators, we did not consider the State to be “in need of intervention” based on those same indicators if the Compliance Agreement provided for the State to demonstrate compliance beyond the reporting period.