U.S. Department of Education Releases 2023 Determination Letters; Virginia Failed to Meet Requirements, While States Like Alabama Climbed Out of Years of "Needs Assistance"

June 26, 2023, U.S. Department of Education (USDOE) released its annual determination letters. While a few states improved their performance, others continued to fail.

In 2023, 23 states or entities received the determination of "meets requirements" under IDEA Part B, as compared to 22 in 2022; six states received the determination of "needs assistance (one year)" in 2023, compared to 3 in 2022; 29 received the determination of "needs assistance (two or more consecutive years)" in 2023, compared to 35 in 2022; and two states received the determination of "needs intervention" in 2023, compared to zero in 2022.

For IDEA Part B, the number meeting requirements went up by one; the number needing assistance (one year) went up by three; the number needing assistance (two or more consecutive years) went down by seven; and the number needing intervention went up by two. End of day, only 23 out of 60 states and entities met requirements.

What are Determination Letters?

USDOE's annual determination letters are based on each state's and "entity's" State Performance Plan and Annual Performance Report (SPP/APR), which evaluate "efforts to implement the requirements and purposes of the IDEA and describes how the state will improve its implementation." The annual APR is the vehicle in which the states and territories report on their performance under their SPP. Determination letters are issued in response, noting whether or not IDEA requirements were met.

The following are the four determination categories:

• Meets the requirements and purposes of IDEA;

• Needs assistance in implementing the requirements of IDEA;

• Needs intervention in implementing the requirements of IDEA; or

• Needs substantial intervention in implementing the requirements of IDEA.

For its 2021 and 2022 determination, USDOE did not issue "needs intervention" determinations because "SPP/APR data collections for FFY 2019 and FFY 2020 were impacted by COVID-19." According to USDOE's explanation in its 2022 determination letter to Bureau of Indian Education (BIE):

A State’s or Entity’s 2022 RDA Determination is Needs Assistance if the RDA Percentage is at least 60% but less than 80%. A State’s or Entity’s determination would also be Needs Assistance if its RDA Determination percentage is 80% or above but the Department has imposed Specific Conditions on the State’s or Entity’s last three IDEA Part B grant awards (for FFYs 2019, 2020, and 2021), and those Specific Conditions are in effect at the time of the 2022 determination.

IDEA Part B Determination Letters

Georgia, Maine, New Hampshire, Oklahoma, Oregon, and Virginia, dropped from "Meets Requirements" to "Needs Assistance (one year)".

Tennessee and Utah dropped from "Needs Assistance (one year)" to "Needs Assistance (two or more consecutive years), joining Alaska, American Samoa, Arizona, California, Colorado, Commonwealth of Northern Mariana Islands, Delaware, District of Columbia, Guam, Hawaii, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, Puerto Rico, Republic of Palau, South Carolina, Texas, Vermont, Virgin Islands, and West Virginia, whose determination didn't change in 2023.

Bureau of Indian Education and Federated States of Micronesia dropped from "Needs Assistance (two or more consecutive years)" in 2022 to "Needs Intervention."

Alabama, Arkansas, Idaho, Ohio, Rhode Island, and Washington are the only states to improve, earning the "Meets Requirements" determination in 2023, joining Connecticut, Florida, Illinois, Indiana, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, Pennsylvania Republic of Marshall Islands, South Dakota, Wisconsin, and Wyoming, whose determination didn't change in 2023.

What Happens if Requirements are Not Met?

According to USDOE:

IDEA identifies technical assistance or enforcement actions that the Department must take under specific circumstances for States that are not determined to “meet requirements.” If a State “needs assistance” for two or more consecutive years, the Department must take one or more enforcement actions, including, among others, requiring the State to access technical assistance, designating the State as a high-risk grantee, or directing the use of State set-aside funds to the area(s) where the State needs assistance. If a State “needs intervention” for three or more consecutive years, the Department must take one or more enforcement actions, including among others, requiring a corrective action plan or compliance agreement, or withholding further payments to the State. Any time a State “needs substantial intervention” the Department must take immediate enforcement action, such as withholding funds or referring the matter to the Department’s inspector general or to the Department of Justice.

What are Specific Conditions?

In the 2022 BIE letter referenced previously, OSEP Director Valerie Williams noted that BIE's Part B grant had been under "specific conditions" from 2017 to 2021, which required BIE to submit a corrective action plan (CAP) and quarterly progress reports that address the following:

(1) adopt final policies and procedures related to implementation of IDEA Part B consistent with IDEA Sections 611(h)(2)(A) and 612(a) and 34 C.F.R. § 300.708(a);

(2) ensure timely correction of findings of noncompliance identified in monitoring reports;

(3) issue annual determinations on the performance of all BIE-funded schools, consistent with IDEA Sections 611(h)(2)(A) and 616(a) and (e) and 34 C.F.R. §§ 300.600(a)(2), 300.708(d), and 300.716;

(4) demonstrate that the BIE has revised and implemented its dispute resolution procedures and practices to be consistent with IDEA Section 615(f)(1)(B) and (k)(3) and 34 C.F.R. §§ 300.510(a), (b), and (c), 300.515(a), 300.532(a) and (c)(2), and 300.716;

(5) update and implement the corrective action plan that addresses the actions the BIE will take to address the noncompliance with secondary transition requirements in IDEA Section 614(d)(1)(A)(i)(VIII) and 34 C.F.R. §§ 300.320(b) and 300.321(b) and improve the accuracy of the secondary transition data; and

(6) ensure that all students with disabilities enrolled in San Felipe Pueblo Elementary School and other BIE-funded schools received related services in accordance with their individualized education programs (IEPs) and any compensatory services determined necessary by the IEP Teams, as required by IDEA Section 612(a)(1) and 34 C.F.R. §§ 300.320 and 300.323(c)(2), and that all initial evaluations are conducted within 60 days of receiving parental consent for the evaluation in accordance with 34 C.F.R. § 300.301(c)(1).

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Although the 2023 determinations posted to U.S. Department of Educaiton's site this morning, the letters issued are not yet public. According to USDOE's site, OSEP will publicly release APR documents on its site in August 2023.