“OSEP staff noted a discrepancy between the high levels of compliance reported by the State in its SPP/APR and actual implementation.
~ United States Department of Education’s Office of Special Education Programs
United States Department of Education (USDOE) Office of Special Education Programs (OSEP) has found the state of Montana in noncompliance with Individuals with Disabilities Education Act (IDEA).
January 24, 2023, OSEP issued a differentiated monitoring support (DMS) report for Montana after conducting phone interviews with representatives from the Montana Department of Public Health and Human Services (MT DPHHS), Early Childhood and Family Support Division (ECFSD); an on-site monitoring of Montana Milestones Program, the State’s early intervention (EI) program; monitoring of other State personnel responsible for implementing the State’s general supervision, data, fiscal, and local systems; and after obtaining solicited feedback from a range of stakeholders and local early intervention
service (EIS) providers.
In addition to including findings of noncompliance, the report includes required actions and timelines by which those actions must occur.
Montana DMS Report
OSEP found the following:
- 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).
- 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.
- 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.
- 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 200.3.2 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.
- 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.
- The State does not maintain a list of trained mediators as required under 34 C.F.R. § 303.431(a)(2).
- The State does not ensure hearing officers possess knowledge of IDEA Part C consistent with 34 C.F.R. § 303.435(a).
Corrective Action Plans and Implementation Guidelines
Montana has 90 days from the date of the report (January 24, 2023) to submit the following to OSEP:
- For State complaints:
a. Revised procedural safeguards documents to ensure compliance with Part C requirements
regarding complaints, under 34 C.F.R. §303.434(a);
b. A copy of the memo sent to all EIS providers explaining the revised complaint procedures; and
c. A training schedule for its EIS providers on implementing the revised Montana Milestones
complaint procedures.- For Qualified Mediators:
a. Policies and procedures that detail the State’s training activities and assurance that their
mediators are knowledgeable on the Part C IDEA regulations relating to the provision of EI
services.
b. A list of individuals who are qualified mediators in the State and available on a random,
rotational, or other impartial basis.- For Hearing Officers:
a. Policies and procedures that demonstrate that the State trains its hearing officers on IDEA Part C
requirements and the EI services available to infants and toddlers with disabilities and their
families.
b. Policies and procedures that demonstrate that the State ensures its hearing officers listen to the
presentation of relevant viewpoints about the due process complaint, will examine all
information relevant to the issues, will seek to reach a timely resolution of due process
complaints and provide a record of the proceedings, including a written decision to the LA and
parties involved in the due process hearing.
For more specifics about the report and deadline, you can access the full document here: DMS Montana.
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.
Additional reading:
U.S. Dept. of Ed. Finds Arkansas and Michigan in Noncompliance with IDEA
U.S. Dept. of Education Finds Virginia at Fault for Continued Noncompliance
Virginia Department of Education Allows Noncompliance to Continue
Texas and Virginia: Too Big to Fail
Virginia’s Noncompliance Continues; U.S. Dept. of Education States More Concerns Exist
Fairfax County Public Schools Failed to Comply with Federal Regulations; Continued to Deny IEEs
Independent Educational Evaluation: VDOE Rules FCPS in Noncompliance; Follows OSEP Monitoring Report
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