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U.S. Department of Education: Promoting Educational Excellence for all Americans

State Monitoring and Enforcement (Sec. 300.600)

(originally published on December 1, 2008 – 73 FR 73006; effective date – December 31, 2008)

Comment: None.

Discussion: In the course of our internal review of this provision, we noted that Sec. 300.600(e) implied, but did not clearly state, that the one-year timeline for correction begins with the State's identification of the noncompliance.

Changes: We have revised Sec. 300.600(e) to specify that correction of noncompliance must be completed no later than one year after the State's identification of the noncompliance.

Comment: A few commenters acknowledged that there are some areas of noncompliance that can be corrected within one year of identification; however, the commenters expressed concern that the one-year timeline is not realistic for findings of systemic noncompliance in substantive areas such as the provision of FAPE, placement in the least restrictive environment (LRE), and child find. Other commenters requested that proposed Sec. 300.600(e) be revised to reflect ``degrees'' of noncompliance. For example, one commenter suggested that some instances of noncompliance (e.g., those related to a specific child's IEP implementation) should not take one year to correct; whereas instances of noncompliance related to systemic issues may take longer than one year to correct. The commenter also questioned how proposed Sec. 300.600(e) will address situations involving longstanding noncompliance. Lastly, one commenter agreed with the intent of proposed Sec. 300.600(e) but requested that the timeline be modified to allow for exceptions, such as allowing a State to initiate appropriate action to correct noncompliance within one year of identification or as soon as possible thereafter.

Discussion: Section 300.600(e) requires that all noncompliance related to the implementation of Part B of the Act be corrected as soon as possible, and in no case later than one year after the State's identification of the noncompliance. These changes are necessary to ensure that children with disabilities are provided with the FAPE to which they are entitled so that they are able to make progress towards meeting IEP goals and statewide achievement standards.

While we agree with the commenters that some areas of noncompliance are more difficult to correct than others, we do not agree that the timeline should be extended beyond one year. Our experience has been that most States can correct noncompliance, including noncompliance that is spread broadly across a system, in less than one year from identification of the noncompliance. For example, States have required the implementation of short-term correction strategies while they are developing and implementing a plan for long-term change to ensure sustained compliance. An example of a short-term correction strategy coupled with a longer-term change might include contracting with speech therapists to provide the speech pathology services needed by current students while developing an in-district program to support speech pathology assistants to become certified speech language pathologists. Therefore, Sec. 300.600(e) provides an appropriate timeline for correcting noncompliance, including systemic and long-standing noncompliance. In cases where a State is unable to correct noncompliance within one year of identification, as provided in Sec. 300.600(e), a State may enter into a compliance agreement with the Department under section 457 of GEPA (Compliance Agreement), if the Department deems a Compliance Agreement appropriate. The purpose of a Compliance Agreement is to allow a State the time needed to correct long-standing systemic noncompliance and come into full compliance with the applicable requirements of the Federal program as soon as feasible, but not later than three years from the date of the Compliance Agreement. A Compliance Agreement allows a State to continue to receive its grant award under Part B of the Act while it works toward achieving full compliance under the terms of the agreement. Section 300.600(e), when read together with the provisions in section 457 of GEPA, adequately address the commenters' concerns.

We decline to amend the regulations to distinguish between or stratify types of noncompliance. Any noncompliance with the provisions in 34 CFR Part 300 is subject to the provisions in Sec. 300.600(e), and, therefore, must be corrected as soon as possible, and in no case later than one year from identification. However, we do agree with the commenter who suggested that some instances of noncompliance, e.g., those related to child-specific IEP timelines, may be corrected far more quickly than one year from identification. We expect that all noncompliance in those instances will be corrected as soon as possible. We recognize, though, that not all noncompliance can be corrected immediately. In our more than 30 year experience in implementing Part B of the Act, we have found that one year is a reasonable outside time limit for States for correcting noncompliance.

For reasons previously stated in this preamble and because a State must initiate appropriate corrective actions immediately upon the identification of noncompliance, we decline to amend the regulations to allow for exceptions to the timely correction timeline in Sec. 300.600(e) or to indicate that a State must only initiate appropriate action to correct noncompliance within one year or as soon as possible thereafter. The one-year timeline to correct noncompliance will ensure that most cases of noncompliance are corrected in one year or less, thereby facilitating the provision of FAPE to children with disabilities.

Changes: None.

Comment: One commenter expressed concern that proposed Sec. 300.600(e) contradicts the logic of Sec. 300.604(b)(2)(ii), which allows compliance agreements if the Secretary has reason to believe that the State cannot correct the problem within one year. Additionally, the commenter stated that proposed Sec. 300.600(e) will be problematic for data collection and analysis purposes because the strict one-year timeline may impede the SEA's ability to use the most current LEA data in determining whether or not a systemic violation has been corrected. The commenter noted that an SEA could erroneously determine, based on outdated data, that an LEA has corrected its noncompliance, allowing for the continuation of the violation and ultimately poor student outcomes.

Discussion: We do not agree that the provisions in Sec. 300.600(e) contradict the provisions in Sec. 300.604(b)(2)(ii). These two regulatory sections address two separate and distinct processes. While Sec. 300.600(e) addresses the standard for the timely correction of noncompliance, Sec. 300.604(b)(2)(ii) addresses enforcement actions available to the Secretary if the Secretary determines, for three or more consecutive years, that a State needs intervention under Sec. 300.603(b)(1)(iii) in implementing the requirements of Part B of the Act. In situations where the Secretary determines, for three or more consecutive years, that a State needs intervention in implementing the requirements of Part B of the Act, the Secretary may require a State to enter into a Compliance Agreement if the Secretary has reason to believe that the State cannot correct noncompliance that has existed for multiple years, within one year.

We do not agree with the commenter that a one-year timeline will in any way impede the use of data in determining the correction of systemic noncompliance or contribute to diminished student outcomes. Many States collect compliance data using a real-time database. Therefore, correction of systemic noncompliance, or the continuation of noncompliance, can be determined at any time.

Changes: None.

Comment: One commenter stated that there is no statutory authority that requires correction of noncompliance within one year after the State's identification. The commenter further noted that under Indicator 15 in the State Performance Plan (SPP), a State must report on the percentage of noncompliance corrected within one year of identification and for any noncompliance not corrected within one year, the State must describe those actions, including technical assistance and enforcement actions the State has taken. The commenter noted that proposed Sec. 300.600(e) appears to give a State two different policies to follow with respect to noncompliance.

Discussion: Section 612(a)(11) of the Act and Sec. 300.149 require States to ensure that each educational program for children with disabilities administered within the State is under the general supervision of individuals responsible for educational programs for children with disabilities in the SEA. Section 616(a)(1)(C) of the Act and section 441a(b)(3)(A) of GEPA require a State to monitor implementation of Part B of the Act in each of its LEAs. Additionally, Sec. 300.100, consistent with section 612(a) of the Act, requires that all States receiving funds under Part B of the Act provide assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets the requirements of Part B of the Act, including the monitoring and enforcement requirements in Sec. Sec. 300.600 through 300.602 and Sec. Sec. 300.606 through 300.608.

The Act is silent regarding a timeline for correction of noncompliance with the requirements of Part B of the Act. However, the Department recognizes that full, continuous compliance with Part B of the Act may not be possible. Therefore, the Department allows States, through Sec. 300.600(e), a reasonable timeframe for correcting noncompliance; that is, any noncompliance must be corrected as soon as possible and in no case later than one year from identification. It is the Department's position that specifying a one-year timeline for correcting noncompliance is necessary to ensure proper and effective implementation of the requirements of Part B of the Act.

As noted previously, section 616(a)(3) of the Act requires the Secretary to monitor the States, and the States to monitor their LEAs, using quantifiable indicators in several priority areas, including a State's exercise of its general supervisory authority. As required by the Act, the Secretary established 20 indicators to monitor these priority areas.

Indicator 15 in the SPP measures the effectiveness of a State's general supervision by determining the percentage of noncompliance that was corrected within one year of identification. It is the Department's longstanding position, as reflected in Indicator 15 of the SPP, that when a State identifies noncompliance with the requirements of Part B of the Act by its LEAs, the noncompliance must be corrected as soon as possible, and in no case later than one year after the State identifies the noncompliance. The Department has established a target of 100 percent for Indicator 15, meaning States are expected to correct 100 percent of noncompliance as soon as possible, and in no case later than one year. Further, in our experience, when a State makes a good faith effort to correct noncompliance, the needed corrective actions can be accomplished and their effectiveness verified within one year. Finally, we expect that in the limited circumstances where correction does not occur within one year of the State's identification, the State will take specific enforcement actions with the LEA that are designed to achieve compliance. Section 300.600(e) is consistent with the Department's policy and guidance concerning the State's monitoring and enforcement responsibilities under Part B of the Act and the reporting requirements for Indicator 15.

Changes: None.

Comment: One commenter requested that the regulations include a more uniform process for States to follow in making annual determinations on the performance of LEAs because current practice differs from State to State.

Discussion: It is the Department's position that States should have some discretion in making annual determinations on the performance of their LEAs and, therefore, decline to establish, in regulation, a uniform process for making annual determinations under section 616(b)(2)(C)(ii)(I) of the Act. We have advised States that, at a minimum, a State's annual determination process must include consideration of the following: an LEA's performance on all SPP compliance indicators (e.g., Indicators 9, 10, 11, 12, 13, 15, 16, 17, and 20), whether an LEA submitted valid and reliable data for each indicator, LEA-specific audit findings, and any uncorrected noncompliance from any source. Additionally, we have advised States to consider performance on results indicators, such as an LEA's graduation and dropout rates, or the participation rate of students with disabilities in State assessments.

Changes: None.

Comment: One commenter recommended requiring the participation of federally funded Parent Training and Information Centers, Community Parent Resource Centers, Protection and Advocacy Agencies, and parent and advocacy organizations and coalitions in the Federal and State monitoring processes.

Discussion: The Department encourages States to involve all stakeholders, including those noted by the commenter, in monitoring the implementation of Part B of the Act and these regulations. However, regulating, as the commenter requested, is not necessary because the commenter's concern is adequately addressed through other means. The Department engaged a number of stakeholders, including parent and advocacy organizations, in developing the Federal monitoring system, and continues to ensure that States include broad stakeholder input in the development of State targets and improvement activities. Additionally, under Sec. Sec. 300.167 through 300.169, regarding the State Advisory Panel, States must establish and maintain an advisory panel with broad membership for the purpose of providing policy guidance with respect to special education and related services for children with disabilities in the State. Section 300.169 specifies many duties of the State Advisory Panel, including advising the SEA of unmet needs in the education of children with disabilities within the State, developing corrective action plans to address findings identified in Federal monitoring reports under Part B of the Act, and developing and implementing policies relating to the coordination of services for children with disabilities. All of these activities are integral to the effective ongoing monitoring of the full implementation of Part B of the Act.

Changes: None.