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

Notifying the Public of Enforcement Actions (Sec. 300.606)

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

Comment: One commenter requested that the Department require SEAs to report to the public any enforcement actions taken against their LEAs pursuant to Sec. 300.604 because doing so would be consistent with publication of enforcement actions against the State by the Secretary of Education.

Discussion: Neither the Act nor these regulations require SEAs to publicly report on enforcement actions taken against LEAs in the State. The decision to report to the public on enforcement actions imposed on an LEA is best left to each State to decide because individual LEA circumstances vary across each State and no one set of requirements is appropriate in every situation. For example, publicly reporting enforcement actions taken against an LEA with limited numbers of children with disabilities would not be appropriate if that public reporting would in any way reveal personally identifiable information of children with disabilities in that LEA. However, in the interest of transparency and public accountability, the Department encourages States, where appropriate, to report to the public on any enforcement actions taken against LEAs under Sec. 300.604.

Changes: None.

Comment: One commenter stated that increasing public accountability is important and requested that the regulations require States and districts to publicly post and make available to the public the Department's SPP/APR determination letters as well as Federal-or State- required corrective actions and enforcement actions.

Discussion: We encourage States to post all information, including corrective actions and enforcement actions related to their SPP/APR, on their Web sites. However, regulating on this issue, as the commenter requested, is not necessary because this information is posted on the Department's Web site when the Department responds to States' SPP/APR submission. These response letters are typically issued in June of each year following the States' submission of their SPP/APR and posted on the Department's Web site at: http://www.ed.gov/fund/data/report/idea/ partbspap/index.html.

Changes: None.

Comment: One commenter requested that the phrase ``proposing to take'' in proposed Sec. 300.606 be clarified or eliminated. The commenter recommended using the language from page 27694 of the NPRM stating that a State must provide public notice when the Secretary ``takes'' an enforcement action as a result of annual determinations under Sec. 300.604.

Discussion: The language in Sec. 300.606 is accurate and we decline to make the requested change for the following reasons. Section 300.606 implements section 616(e)(7) of the Act, and requires a State that has received notice, under section 616(d)(2) of the Act, of a pending enforcement action against the State under section 616(e) of the Act to provide public notice of the pendency of that action. Pursuant to section 616(d)(2)(B) of the Act, a State that has been determined to ``need intervention'' for three consecutive years or ``need substantial intervention'' in implementing the requirements of Part B of the Act, faces enforcement actions and is entitled to reasonable notice and an opportunity for a hearing on such a determination. If a State requests a hearing on a determination, the Department's final determination would not be made until after that hearing. In this situation, the enforcement action also would depend on the outcome of the hearing and final determination. Therefore, in a case such as this, the public must be notified that the Secretary is proposing to take, but has not yet taken, an enforcement action pursuant to Sec. 300.604.

Changes: None.

Comment: One commenter stated that the changes in proposed Sec. 300.606 are unnecessary because current Sec. 300.606 already requires the public to be notified of an action ``taken pursuant to Sec. 300.604.'' The commenter stated that specifying in these regulations that ``public notice'' consists of posting information on a Web site and distributing information to the media and public agencies is unnecessary to ensure compliance with IDEA.

Discussion: We disagree with the commenter. We have received numerous inquiries regarding current Sec. 300.606 and whether this provision requires public notification of each determination of ``needs assistance'', ``needs intervention'' and ``needs substantial intervention'' or whether it merely requires States to notify the public of enforcement actions taken by the Secretary. We intend for Sec. 300.606, as proposed in the NPRM, to clarify the public reporting requirements by indicating that a State must provide public notice of any enforcement action taken by the Secretary pursuant to Sec. 300.604 by posting the notice on the SEA's Web site and distributing the notice to the media and through public agencies. This clarification is further designed to minimize a State's reporting burden while providing the public with appropriate notice of the actions taken by the Secretary as a result of the determinations required by section 616(d) of the Act and Sec. 300.603. For these reasons, we decline to make any regulatory changes based on this comment.

Changes: None.