U.S. Department of Education Finds Alaska, Arkansas, and New York in Noncompliance; Issues Differentiated Monitoring Support Findings

United States Department of Education (USDOE) Office of Special Education Programs (OSEP) issued differentiated monitoring support (DMS) reports for Alaska, Arkansas, and New York, finding all three states in noncompliance with Part B of Individuals with Disabilities Education Act (IDEA).

The DMS reports for all three states outline findings of noncompliance, as well as required corrective actions and timelines by which those corrective actions must occur.

New York DMS Report

September 21, 2023, USDOE OSEP issued a DMS report related to noncompliance under Part B of IDEA for New York.

In the case of New York, OSEP found the following:

1.1 OSEP finds that NYSED 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.

1.2 OSEP finds that NYSED 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.

2.1 OSEP finds that NYSED does not have reasonable procedures to ensure that State complaints held in abeyance pending a due process hearing decision are properly resolved. 34 C.F.R. §§ 300.151 and 300.152(c).

2.2 OSEP finds that NYSED 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).

3.1 OSEP finds that the NYSED does not ensure that public agencies issue timely due process hearing decisions as required in 34 C.F.R. § 300.515.

3.2 OSEP finds that NYSED does not provide adequate written notice to parents regarding the differences in the rights afforded to parents in 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. 34 C.F.R. § 300.504(c).

3.3 OSEP finds that NYSED 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 IDEA, as required in 34 C.F.R §§ 300.511through 300.514, 300.149, and 300.600.

Alaska DMS Report

September 25, 2023, USDOE OSEP issued a DMS report related to noncompliance under Part B of IDEA for Alaska.

In the case of Alaska, OSEP found the following regarding Part B:

1.1 OSEP finds that the State does not have a general supervision system that is reasonably designed to ensure the State’s examination of data collected through its data system to determine LEA compliance is being used for the purposes of identifying noncompliance and verifying correction. 34 C.F.R. §§ 300.600(e). The State does not issue findings of noncompliance within a reasonable period of time after the noncompliance is identified through a review of its supplemental data collection as required under 34 C.F.R. §§ 300.149 and 300.600 through 300.602.

2.1 OSEP finds that the State does not have a reasonably designed general supervision system which ensures children with disabilities participating in early intervention programs under IDEA Part C and who will participate in preschool programs under IDEA Part B experience a smooth and effective transition to those preschool programs in a manner consistent with IDEA Section 637(a)(9), as required by IDEA Sections 612(a)(9) and (11) and 616(a), and 34 C.F.R. §§ 300.124, 300.149, and 300.600 through 300.602, and 20 U.S.C. 1232d(b)(3)(A) and (E).

2.2 OSEP finds that the State does not have policies and procedures in place which ensure that all parents of potentially eligible children with disabilities receive notice of their procedural safeguards as required under 34 C.F.R. § 300.504(a)(1).

3.1 OSEP finds that the State does not have a reasonably designed system, policies and procedures, and internal controls for its subrecipient monitoring process consistent with 2 C.F.R. §§ 200.332(b), (d)-(f) and (h), 200.339, and 34 C.F.R. §§ 300.149 and 300.600.

3.2 OSEP finds that the State is unable to ensure that every subaward is clearly identified to the subrecipient and includes the required information consistent with 2 C.F.R § 200.332(a). Specifically, OSEP’s review found that DEED’s Grant Award Notice (GAN) does not include the subaward Period of Performance Start and End Date as required under 2 C.F.R. § 200.332(a)(1)(v).

4.1 OSEP finds that the State does not have a system in place to ensure that mediation agreements that result in Individualized education program (IEP) facilitation are formalized in written mediation agreements as required by 34 C.F.R. § 300.506(b)(6).

4.2 OSEP finds that the State’s model form and instructions do not meet the content requirements under 34 C.F.R. § 300.508(b) for filing a due process complaint. Specifically, the State’s model form entitled, “Notice of Request for Due Process Hearing” requires “Student Address/Phone,” and the form does not make clear that inclusion of a phone number is either optional or only required as available contact information in the case of a child or youth experiencing homelessness or a student who has reached the age of majority.

4.3 OSEP finds that the State does not have procedures to ensure that LEAs are convening a resolution meeting within 15 days of receiving notice of the parent’s due process complaint, as required under 34 C.F.R. § 300.510(a) and does not have a mechanism to track the 30-day resolution period requirements under 34 C.F.R. § 300.510(b).

4.4 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 IDEA, 34 C.F.R §§ 300.149, 300.511 through 300.514, and 300.600.

4.5 OSEP finds that the State’s policies and procedures related to State complaints do not address the award of a remedy for the denial of appropriate services, as required under 34 C.F.R. § 300.151(b).

5.1 OSEP finds the State does not have a State advisory panel (SAP) as required by IDEA Sec. 612(a)(21) and 34 C.F.R. §§ 300.167 through 300.169.

Arkansas DMS Report

Earlier this year, January 12, 2023, USDOE OSEP issued a DMS report related to noncompliance under Part C of IDEA for Arkansas.

September 28, 2023, USDOE OSEP issued another DMS report, this time related to noncompliance under Part B of IDEA for Arkansas.

OSEP found the following regarding Part B:

"The State does not have a general supervision system that is reasonably designed to identify noncompliance in a timely manner as required under 34 C.F.R. §§ 300.149 and 300.600 through 300.602. Specifically, the State was not issuing its written notifications of noncompliance (i.e., a findings) to its LEAs, generally within three months of the State’s identification of noncompliance. Further, the State may not use the “pre-finding” flexibility to allow its LEAs an indiscriminate amount of time to correct any noncompliance prior to a finding being issued. “Pre-finding correction” should generally occur within three months of the State’s monitoring."