U.S. Dept. of Education Issues Differentiated Monitoring and Support Letters to Florida, Idaho, Michigan, Montana, New Jersey, New York, and Texas; Letters Address States' Noncompliance with IDEA

United States Department of Education (USDOE) Office of Special Education Programs (OSEP) issued differentiated monitoring support (DMS) reports and/or letters for Florida, Idaho, Michigan, Montana, New Jersey, New York, and Texas, addressing findings of noncompliance with Part B and/or Part C of Individuals with Disabilities Education Act (IDEA).

OSEP monitors all IDEA Part B and C programs through its DMS system and "differentiates its approach for each state based on the state's unique strengths, progress, challenges, and needs." This cyclical monitoring process focuses on states' general supervision systems and, according to OSEP "will continue to provide support and technical assistance that is differentiated based on each state’s needs."

USDOE has a long history of posting letters and reports to its public-facing site months to years after issuing them to the state education agencies. The result is a wide range of letter and report dates. Between October 10, 2023, and January 31, 2024 (last update to DMS page), it posted letters and reports ranging from September 13, 2021, to December 20, 2023.

Idaho

September 13, 2021, USDOE OSEP issued a DMS fiscal letter, in which OSEP Acting Director David Cantrell stated the purpose of the letter is to inform Idaho Department of Health and Welfare (IDHW), of 1) OSEP’s IDEA Part C monitoring and 2) that OSEP identified one finding of noncompliance under Part C:

“OSEP finds that the State LA does not monitor early intervention service (EIS) providers used by the State to carry out Part C to identify and correct noncompliance, consistent with IDEA Section 635(a)(10) and 34 C.F.R. § 303.120(a) of the Part C regulations, related to fiscal requirements including the payor of last resort and system of payment requirements in 34 C.F.R. §§ 303.500 through 303.521.”

The following year, on November 3, 2022, OSEP's site states it issued a corrective action plan approval memo to Idaho. However, the link on OSEP’s site goes to a document related to Alaska. February 13, 2024, OSEP was contacted about the issues with its site. As of the date of publication on this article, no notice of correction has been received.

October 20, 2023, USDOE OSEP issued a DMS letter of findings regarding Part B of IDEA, after receiving an inquiry that “raised concerns” about Idaho State Department of Education’s (ISDE) “eligibility criteria for determining whether a child is eligible to receive special education and related services under” IDEA as a child with a Specific Learning Disability (SLD). OSEP’s preliminary review identified areas of concern that led OSEP to issue the following required next steps:

"The State must review and revise its definition of "school age" to ensure that children, including preschool-age children, who are also suspected of having a disability are included when determining whether a child has a SLD; and

"The State must review and revise, as appropriate, its eligibility criteria for identifying a child with an SLD under the IDEA. If the State determines that its eligibility criteria are consistent with the IDEA requirements described in this letter, the State must provide an explanation to OSEP of how the criteria detailed in its Special Education Manual are implemented in a manner consistent with IDEA’s procedures for identifying children with SLD. Specifically, the State must demonstrate that its criteria are consistent with 34 C.F.R. § 300.309 and do not impermissibly narrow IDEA’s eligibility criteria for SLD; and

"If the State determines that its eligibility criteria are inconsistent with the IDEA requirements described in this letter, the State must revise its policies and procedures for determining that a child is eligible to be identified as having an SLD and submit the revised policies and procedures to OSEP; and

"If the State revises its policies and procedures for determining that a child is eligible to be identified as having an SLD, the State must provide a copy of a notification issued to all public agencies, LEAs, parent advocacy groups, the State advisory panel, and other interested parties advising them of the State’s revised eligibility criteria; and

"The State must provide a written description of how it will ensure that its revised policies and procedures are being implemented in a manner consistent with IDEA, including the provision of training, technical assistance, and monitoring of its LEAs."

Texas

May 2, 2023, USDOE OSEP issued a DMS close-out letter to Texas Health and Human Services Commission (THHSC). OSEP Director Valerie Williams states the letter is a follow up to OSEP’s October 5, 2020 DMS report, which identified findings of noncompliance regarding Part C of IDEA. In addition, she stated OSEP determined Texas took the “necessary steps to address and resolve the findings of noncompliance and the required corrective actions outlined in the OSEP’s 2020 monitoring report.”

The October 5, 2020, report identified that THHSC failed to:

"Provide appropriate Early Intervention (EI) services to all infants and toddlers with disabilities and their families that are eligible for those services consistent with IDEA Section 635(a)(2) and 34 C.F.R. § 303.112, including, failing to:

"Ensure its local ECI programs are appropriately maintaining records as required by IDEA Section 637(b)(4), as well as 34 C.F.R. § 303.224(b), 2 C.F.R. § 200.333, and 2 C.F.R. § 200.303, in order to provide EI services to infants and toddlers with disabilities in a timely manner;

"Ensure that it has a comprehensive child find system in place that is able to appropriately identify infants and toddlers with disabilities for IDEA Part C services under IDEA Section 635(a)(5) and 34 C.F.R. § 303.302(b)(1); and

"Ensure that IDEA Part C resources are available for all geographic areas in the State, consistent with IDEA Section 637(a)(7) and 34 C.F.R. § 303.207.

"Implement its single line of responsibility authority including general supervision and coordination of all available resources for its ECI program, consistent with IDEA Section 635(a)(10) and 34 C.F.R. § 303.120."

New Jersey

October 20, 2023, USDOE OSEP issued a DMS status letter to New Jersey Department of Education (NJDOE). OSEP director Valerie Williams states in the letter that it 1) “summarizes the current status of the findings” regarding OSEP’s May 6, 2019 monitoring letter to NJDOE and 2) serves as notice to NJDOE of OSEP’s “intention to initiate additional monitoring activities focused on both the new and continued areas of concern related to NJDOE’s dispute resolution system.”

OSEP identified four areas of noncompliance with IDEA Part B:

"Timely due process hearing decisions

"Resolution meetings

"Child status during proceedings

"Expediated due process hearings."

December 15, 2023, USDOE OSEP issued a targeted monitoring letter to NJDOE, notifying it that OSEP intended ”to conduct an onsite, targeted monitoring visit in March 2024 regarding the NJDOE’s due process complaint and hearing procedures.” OSEP Director Valerie Williams states that targeted monitoring will address the following:

"Evidence of implementation of the Memorandum of Agreement (MOA) for Professional Services between the NJDOE and the Office of Administrative Law (OAL);

"Policies and procedures, including evidence of implementation, of 34 C.F.R. § 300.515(a) which addresses timelines for due process hearings;

"Policies and procedures, including evidence of implementation, of the State’s oversight in addressing extensions under 34 C.F.R. § 300.515(c) with the OAL, and the publishing of extensions to the 45-day timeline on the State’s website as documented in the State’s procedures;

"Policies and procedures, including evidence of implementation, of the State’s data collection process to ensure that it provides accurate data on all IDEA Part B Section 618 data collection requirements related to dispute resolution, as outlined in OSEP’s data documentation requirements;

"Policies and procedures, including evidence of implementation, of 34 C.F.R. § 300.518 which addresses a child’s status during proceedings; and

"Policies and procedures, including evidence of implementation, of 34 C.F.R. § 300.532, which addresses appeals made as part of IDEA’s discipline procedures."

Florida

November 6, 2023, USDOE OSEP issued a DMS closeout letter. OSEP Director Valerie Williams states that the purpose of the letter “is to provide an update on the status of the findings and corrective actions” OSEP reported in the January 19, 2021, DMS report it sent to Florida Department of Health (FDOH).

The previous findings of noncompliance with IDEA Part C include FDOH’s failures to do the following:

"Provide all early intervention services as identified on the individualized family service plan (IFSP) of infants and toddlers with disabilities in a timely manner and ensure early intervention services are individualized to meet the needs of the child and family as determined by the IFSP team as required by IDEA Sections 635 and 636, as well as 34 C.F.R. §§ 303.12, 303.342, 303.343, and 303.344(d).

"Monitor its Local Early Steps (LES) early intervention service programs for compliance as required by IDEA Section 635(a)(10) and 34 C.F.R. § 303.120(a) for the fiscal requirements including the statewide system of payments policy and payor of last resort requirements in IDEA Section 640 and 34 C.F.R. §§ 303.510(b), 303.520, and 303.521; and

"Ensure that the State has a methodology, including policies and procedures, to track all State and local public funding sources to enable the State to ensure compliance with the IDEA Part C Maintenance of Effort (MOE) requirements in 34 C.F.R. § 303.225(b)."

Michigan

October 12, 2023, USDOE OSEP issued a DMS closeout letter to Michigan Department of Education (MDE), with a spreadsheet titled “Summary of Monitoring Priorities and Outcomes”. OSEP Director Valerie Williams said the letter served to “provide an update on the status of the findings and corrective actions identified” in OSEP’s June 26, 2020, DMS report that identified noncompliance under Part B of IDEA, and required Michigan to take steps to correct the noncompliance. According to Williams, “these findings and corrective actions were identified as result of the DMS activities conducted by OSEP during its on-site visit which occurred the week of September 16, 2019.”

The previous findings of noncompliance identified MDE at fault for the following:

"MDE does not have internal controls, including comprehensive policies and procedures guiding its risk assessment and related tiered fiscal monitoring. OSEP has determined that MDE is in noncompliance with the requirements in 2 C.F.R. §§ 200.303(c) and 200.303(d).

"OSEP has concluded that, when utilized, the MDE’s PFR on-site monitoring process appears to be reasonably designed to provide fiscal oversight and ensure that IDEA subawards are used for authorized purposes, in compliance with Federal statutes, regulations, and the terms of and conditions of the subaward. However, as reported above, the MDE did not carry out the tiered monitoring activities directed by MDE’s risk assessment, in FFY 2019.

"MDE disclosed that, since initially providing those subrecipients with IDEA subgrants using the formula described in 34 C.F.R. § 300.705 for base, population, and poverty, MDE has not consistently allocated remaining funds in accordance with the requirements in 34 C.F.R. § 300.705(b)(3). OSEP has determined that MDE is in noncompliance with the requirements above and has determined that MDE is in noncompliance with the requirements in 34 C.F.R. § 300.705(b)(3).

November 21, 2023, USDOE OSEP issued a DMS status letter to MDE, with the purpose of providing "an update on the status of the findings and corrective actions" OSEP identified in its January 12, 2023, DMS report for MDE. The "Summary of Monitoring Findings and Status" chart included with the letters indicates that the majority of the findings of noncompliance remain open and in need of corrective actions.

The following are the areas of noncompliance OSEP previously identified:

"OSEP finds that MDE does not have a general supervision system that is reasonably designed to monitor the provision of IDEA Part C services as required under 34 C.F.R. §§ 303.120, 303.342(e), 303.344(d) and 303.700 through 303.702.

"OSEP finds that the State does not conduct fiscal monitoring as required under 34 C.F.R. § 303.120(a)(1) for two areas: payor of last resort (POLR) requirements in 34 C.F.R. §§ 303.500 and 303.510 and system of payment requirements in 34 C.F.R. §§ 303.520 and 303.521. In addition, OSEP finds that the State does not consistently implement its Statewide system of payment (SOP) to ensure that IDEA Part C funds are not used for services that would have been otherwise paid for from another public or private source in its local service areas as required under the POLR requirements in 34 C.F.R. § 303.510.

"OSEP finds that the State does not conduct fiscal monitoring as required under 34 C.F.R § 303.120(a)(1) for two areas: payor of last resort (POLR) requirements in 34 C.F.R. §§ 303.500 and 303.510 and system of payment requirements in 34 C.F.R. §§ 303.520 and 303.521. In addition, OSEP finds that the State does not consistently implement its Statewide system of payment (SOP) to ensure that IDEA Part C funds are not used for services that would have been otherwise paid for from another public or private source in its local service areas as required under the POLR requirements in 34 C.F.R. § 303.510.

"OSEP finds that the State does not select mediators on a random, rotational, or other impartial basis as required under 34 C.F.R § 303.431(b)(2)(ii).

"OSEP finds that the State’s mediation policies and procedures are not consistent with the requirement under 34 C.F.R § 303.431(b)(7) that discussions that occur during the mediation process must be confidential."

Montana

December 20, 2023, USDOE OSEP issued a DMS status letter to Montana Department of Public Health and Human Services. OSEP director Valerie Williams states that the purpose of the letter “is to provide an update on the status of the findings and corrective actions” OSEP reported in its January 24, 2023 DMS report.

The noncompliance OSEP previously identified includes:

"OSEP finds that DPHSS does not have a system reasonably designed to monitor its EIS providers to ensure compliance with IDEA Part C requirements, such as timely service provision to ensure there are no waitlists for services, as required under IDEA 34 C.F.R. §§ 303.120(a) and 303.700.

"OSEP finds that DPHSS does not have a system reasonably designed to collect valid and reliable data as needed to report annually to the Secretary under 34 C.F.R § 303.702(b)(2) on three of the indicators established by the Secretary for the State performance plans, as required under IDEA 34 C.F.R. §§ 303.124, 303.224, and 303.701(c).

"OSEP finds that DPHSS does not have a general supervision system reasonably designed to monitor its EIS providers to ensure fiscal compliance with IDEA Part C, as required under 34 C.F.R. §§ 303.120(a)(1) and (2) and 303.700(a) and (b). Specifically, the DPHSS monitoring system is not reasonably designed to identify and verify correction of fiscal noncompliance.

"OSEP finds that DPHHS has failed to monitor its EIS providers for compliance as required under 34 C.F.R. § 303.120(a) for the statewide system of payments policy requirements in 34 C.F.R. §§ 303.520 and 303.521.

"OSEP finds that DPHHS does not have procedures and practices that are reasonably designed to ensure the appropriate use of IDEA Part C funds as required under 34 C.F.R. §§ 303.120(a) and 303.205, and the OMB Uniform Guidance in 2 C.F.R. Part 200.

"OSEP finds that Montana Milestones’ State complaint policies and procedures are inconsistent with 34 C.F.R. § 303.434(a). Specifically, publicly available documents indicate that families must engage in an informal process prior to filing a formal State complaint.

"OSEP finds that the State does not maintain a list of trained mediators as required under 34 C.F.R. § 303.431(a)(2).

"OSEP finds that the State does not ensure hearing officers possess knowledge of IDEA Part C consistent with 34 C.F.R. § 303.435(a)."

New York

December 21, 2023, USDOE OSEP issued a DMS status letter. OSEP Director Valerie Williams states that the purpose of the letter is “to provide an update on the status of the findings and corrective actions identified” by OSEP, which were reported in September 21, 2023, OSEP’s DMS monitoring report to New York State Education Department (NYSED). OSEP’s previous findings include:

"OSEP finds that the State does not consider the following factors: (1) performance on compliance indicators; (2) valid and reliable data; (3) correction of identified noncompliance; and (4) other data available to the State about the local educational agency’s (LEA’s) compliance with the Individuals with Disabilities Education Act (IDEA), including any relevant audit findings, when making annual determinations about the performance of its LEAs as required under 34 C.F.R. §§ 300.600(a) and 300.603(b)(1).

"OSEP finds that the State does not consider the following factors: (1) performance on compliance indicators; (2) valid and reliable data; (3) correction of identified noncompliance; and (4) other data available to the State about the LEA’s compliance with IDEA, including any relevant audit findings, when making annual determinations about the performance of its LEAs as required under 34 C.F.R. §§ 300.600(a) and 300.603(b)(1).

"OSEP finds that the State does not have a general supervision system that is reasonably designed to identify and verify correction of noncompliance in a timely manner using its different components, as required under 34 C.F.R. §§ 300.149 and 300.600 through 300.602.

"OSEP finds that the State does not have reasonable procedures in place to ensure that State complaints held in abeyance pending a due process hearing decision are properly resolved under 34 C.F.R. §§ 300.151 and 300.152(c). The practice of requiring parents to raise the unresolved issue with the State is inconsistent with the requirements in 34 C.F.R. § 300.152(c), as the State must have procedures in place to ensure that State complaints that are set aside are ultimately resolved, if the issues were not resolved in the due process hearing.

"OSEP finds that the State does not ensure that State complaints, which allege a violation that occurred not more than one year prior to the date that the complaint is received, are ultimately investigated and resolved as required under 34 C.F.R. § 300.152(c). The State’s practice of not investigating timely State complaints that have been set aside because of a pending due process hearing on the basis that the statute of limitations had expired during the pending due process hearing is inconsistent with IDEA.

"OSEP finds that the State does not ensure that public agencies issue timely due process hearing decisions as required in 34 C.F.R. § 300.515. Over 50% of the open cases against the NYCPS are beyond the 45-day or properly extended timeline for the issuance of a decision. In addition, NYCPS continues to receive over 10,000 new due process hearings each year which compounds this backlog.

"OSEP finds that the State does not ensure that public agencies issue timely due process hearing decisions as required in 34 C.F.R. § 300.515. Over 50% of the open cases against the NYCPS are beyond the 45-day or properly extended timeline for the issuance of a decision. In addition, the NYCPS continues to receive over 10,000 new due process hearings each year which compounds this backlog.

"OSEP finds that the State, as required under 34 C.F.R. § 300.504(c), does not ensure adequate written notice to parents regarding the differences in the rights for IDEA due process hearings as compared to the rights afforded to parents who elect to participate in the accelerated review process including the IDEA due process rights that parents forfeit if they participate in the accelerated review process.

"OSEP finds that the State does not have mechanisms in place to ensure due process hearing decisions are implemented within the timeframe prescribed by the hearing officer, or if there is no timeframe prescribed by the hearing officer, within a reasonable time set by the State as required under 34 C.F.R. §§ 300.511through 300.514, 300.149, and 300.600. The NYSED, as the SEA, is ultimately responsible for ensuring hearing officer decisions are implemented in a timely manner and must have a mechanism in place to track the implementation of these decisions.