United States Department of Education (USDOE) Office of Special Education Programs (OSEP) has found the states of Arkansas and Michigan in noncompliance with Individuals with Disabilities Education Act (IDEA).
January 12, 2023, OSEP issued differentiated monitoring support (DMS) reports for both states. In addition to including findings of noncompliance, the reports include required actions and timelines by which those actions must occur.
Arkansas DMS Report
In the case of Arkansas, OSEP found the following:
- 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.
- 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.
- 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.
- The State’s written procedures for filing a due process complaint are inconsistent with the requirements of 34 C.F.R. § 303.441(b).
Michigan DMS Report
In the case of Michigan, OSEP found the following:
- 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 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 payor of last resort (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.
Corrective Action Plans and Implementation Guidelines
Both states have 90 days from the date of the reports (both dated January 12, 2023) to submit corrective action plans (CAP). As soon as possible, but no later than one year from the date of the reports, both must submit evidence of implementation.
Be Wary of Timelines
Unfortunately, guidance and timelines set by OSEP haven’t proven to be enough for compliance to occur. If you explore the DMS page on USDOE’s site, you’ll find letters OSEP issued to other states, after the states failed implementation guidelines and timelines.
In the case of Texas, the letters continued for three years, at which point OSEP pulled funding to the state.
In the case of Virginia, OSEP issued subsequent letters, but for an unknown reason didn’t post the letters to its site (some have been obtained via FOIA requests). Virginia is heading into the three-year anniversary of its 2020 DMS report being issued. Given agencies like USDOE have a history of going back and forth with state and local education agencies before releasing findings to the public, and given Virginia’s timeline is tracking the Texas timeline, it is conceivable that Virginia will face pulled funding if its noncompliance continues. Hopefully, Arkansas and Michigan won’t follow in its footsteps.