U.S. Department of Education Releases Update on Arkansas Monitoring: Noncompliannce Continues in 9 out of 9 Areas Identified

July 5, 2023, U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) issued a "close-out letter" to Arkansas Division of Developmental Disabilities Services (DDS), regarding OSEP's IDEA Part C Monitoring of Arkansas.

Although OSEP characterizes such letters as "close-out" letters, they are more status reports than close-out letters, since the latter infers close-out of all monitoring, rather than one of nine issues being closed out in this case, with eight of nine remaining in noncompliance.

OSEPS's January 2023 Findings:

January 12, 2023, OSEP issued a Differentiated Monitoring and Support (DMS) letter of findings and report for Arkansas. Valerie Williams, director of OSEP, identified four areas of noncompliance in her letter:

1. Monitoring and Improvement: OSEP finds that the State does not have a general supervision system that is, in its entirety, reasonably designed to identify and verify correction of noncompliance in a timely manner using its different components, as required under 34 C.F.R. §§ 303.120 and 303.700 through 303.702.

2. Data: OSEP finds that the State does not report on the identification and verified correction of noncompliance reflected in its SPP/APR data consistent with its reporting responsibilities, as required by 34 C.F.R. §§ 303.700(a)(2) and 303.702(b)(2), OSEP Memo 09-02 and the SPP/APR.

3. Fiscal Management: Single Line of Responsibility: OSEP finds that the State does not conduct fiscal monitoring as required under 34 C.F.R. § 303.120(a)(1). In addition, OSEP finds that the State has not established effective internal controls that provide reasonable assurance of compliance by its EIS providers with "Federal statutes, regulations, and the terms and conditions of their Federal award," as required under 2 C.F.R. § 200.303.

4. Dispute Resolution: The State's written procedures for filing a due process complaint are inconsistent with the requirements of 34 C.F.R. § 303.441(b).

OSEP's July 2023 Status Report

The July 5, 2023, letter notes that the "Dispute Resolution" noncompliance has been addressed and "No further action is needed". However, four of the policies and procedures previously established by OSEP (one for "Monitoring and Improvement", one for "Data", and two for "Fiscal Management") remain open.

Arkansas had 90 days from the date of the January 12, 2023, letter to take the required actions determined by OSEP. Although the state did take action, OSEP determined that the four of the five actions taken do not demonstrate compliance and/or need more clarification. "Dispute Resolution" is the outlier.

Arkansas is required to provide evidence of implementation of its revised policies and procedures as soon as possible, but no later than one year from the date of the January 12, 2023, letter.

What is Differentiated Monitoring and Support?

OSEP monitors all IDEA Part B and Part C programs, using an approach specific to each state, based on the state’s “unique strengths, progress, challenges, and needs.” IDEA Part B "includes provisions related to formula grants that assist states in providing a free appropriate public education in the least restrictive environment for children with disabilities ages three through 21" and IDEA Part C "includes provisions related to formula grants that assist states in providing early intervention services for infants and toddlers birth through age two and their families."

According to USDOE’s website OSEP’s differentiated monitoring and support (DMS) does the following:

General supervision encompasses each state’s responsibility to ensure that the state and its subgrantees and contractors meet the requirements of IDEA which includes:

• • • Improving educational results and functional outcomes for all children with disabilities, and early intervention results and functional outcomes for all infants and toddlers with disabilities; and
    • Ensuring that public agencies meet the program requirements under Parts B and C of IDEA, with a particular emphasis on those requirements that are most closely related to improving early intervention results for infants and toddlers with disabilities and educational results for children and youth with disabilities.

As outlined in the DMS Framework, OSEP will examine the state’s policies and procedures and state-level implementation of these policies and procedures regarding the following components of general supervision:

• • • Monitoring and Improvement
    • Data, including the State Performance Plan/Annual Performance Report (SPP/APR)
    • Fiscal Management
    • Dispute Resolution

In the case of a state like Texas, monitoring continued for years and the state’s continued noncompliance resulted in funds being pulled. In a state like Virginia, it has been warned about sanctions if noncompliance continues, however OSEP has yet to pull funding, even though Virginia is tracking a similar timeline to Texas.

A list of actions taken by OSEP is available via its guidance document “DMS 2.0 Framework with Evidence and Intended Outcomes“. The document has an easy-to-follow progression of actions and consequences. If the state has x, then y will occur. If y occurs, then z will occur, and so on.