Balance Sheet

The Free Dictionary defines “chronicle” as “An extended account in prose or verse of historical events, sometimes including legendary material, presented in chronological order and without authorial interpretation or comment.”

So, we decided to call this blog “The FOIA Chronicle” because it is both “extended” and “chronological” not to mention “legendary” in its portrayal of how not to handle a request for information made under a federal statute. And, we wouldn’t think of adding “interpretation or comment” because it’s just great all by itself!

As we reported in an earlier blog, “Show Us the Waivers,” this event started when we learned that some states had filed a request with the U.S. Department of Education (USED) for an OK to reduce their state financial support to local districts for the excess cost of providing special education to students with disabilities.

And so the story begins  …

April 20, 2010 :: The Center for Law and Education (CLE) (IDEA Money Watch partner and legal consultant) submits a FOIA to USED requesting information on any state submitting a request for waiver of state financial support of special education.The FOIA also asked that USED waive any fees to CLE.

May 3, 2010 :: The USED denies the fee waiver and  administratively closes the FOIA request.

May 6, 2010 :: CLE resubmits its FOIA request to USED without a fee waiver request.

May 12, 2010 :: CLE Co-Director, Kathleen Boundy, Esq., affirms in writing to USED’s  FOIA manager that CLE would pay all fees related to its FOIA request.

June 14, 2010 :: USED’s FOIA Service Center representative,  Linda Darby, informs CLE via email that her office is “awaiting the responsive documents for your request.”

July 1, 2010 :: CLE’s Co-Director, Kathleen Boundy, Esp., informs USED’s Darby via email that it has been eight (8) weeks since CLE submitted its [second] request for documents [May 6, 2010].

August 10, 2010 :: Citing multiple unreturned calls to USED to check on the status of its FOIA request, CLE files an appeal to its FOIA, as allowable under federal law.

August 19, 2010 :: CLE is notified by USED via email that “that from the beginning your request was forwarded to the Office of Elementary and Secondary Education (OESE), to search for documents that may be responsive to your request.  Staff from OESE informed this office that they were not able to locate any information responsive to your request.  However, they recommended to send your request to the Office of Special Education Rehabilitative Service (OSERS). In addition, I would like to inform you that the decision regarding the fees was premature and sent in error.  If OSERS locates any responsive documents, there will be no charges applied to your request.”

August 21, 2010 :: CLE’s Co-Director, Kathleen Boundy, Esq., informs USED’s FOIA Public Liaison via email that “The explanation [in your August 19, 2010 email] begs belief…that it took 3½ months before either FOIA/OESE staff realized that a FOIA request expressly seeking information based on specific statutory provisions (with cites) under the Individuals with Disabilities Education Act falls within the ambit of the Office for Special Education and Rehabilitative Services not OESE.   In any case, when you indicate that “[t]hey [OESE staff] recommended to send your request to the Office of Special Education Rehabilitative Services (OSERS),”  may I assume that CLE’s FOIA Request 10-01225-F has, in fact, been sent to OSERS?  And may I also assume that the FOIA Appeal Division will oversee and ensure that this request will now be expedited?”

August 23, 2010 :: USED’s FOIA Public Liaison informs CLE via email that its message [of August 21, 2010]  has been forwarded to OSERS for information and action.

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Complete documentation of this chronicle is available here.

We’ve learned that States have begun to submit requests to the U.S. Dept. of Education (USED) for waivers to reduce state financial support toward the excess costs of special education to local school districts. According to information obtained from the USED, the states of Kansas and Iowa have requested waivers and gained approval. The state of South Carolina has made a request with no decision so far.

Maintenance of state financial support – or MOE – is a requirement of IDEA – one of the conditions for States to receive federal IDEA funds. However, the IDEA gives the Secretary of Education the authority to waive the waive the MOE requirement due to exceptional or uncontrollable circumstances. Requests must be made based on “exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State” says IDEA. (Text of statute here.)

IDEA Money Watch partner, the Center for Law and Education, submitted a request for information to USED asking for the following:

- All requests for a waiver of the “Maintenance of State Financial Support” requirement submitted by any State during FY 2010 pursuant to 20 U.S.C. §1412(a)(18)(C) and 34 C.F.R. § 300.163(c). Under these provisions a State may seek a waiver of the requirement of 20 U.S.C. § 1412(a)(18)(A) not to reduce the amount of State financial support for special education and related services for eligible children under IDEA Part B below the amount of that support for the preceding fiscal year.

- All responses of the U.S. Department of Education to each request for such a waiver submitted by any State. The Secretary may waive the “Maintenance of State Financial Support” requirement for a State, for 1 fiscal year at a time, if the Secretary determines that granting a waiver would be equitable due to exceptional or uncontrollable circumstances. 20 U.S.C. §1412(a)(18)(C)(i).

We’re still waiting for information from USED. And we’re disappointed in the federal government’s lack of transparency regarding this important issue. Seems like such information should be released to the public – both by the state requesting the waiver and by USED.

The Bottom Line

We suspect that this is only the beginning of these requests. According to a new report from the National Governors Association, “States face significant fiscal challenges going forward with the federal Recovery Act funds ending, revenues not expected to be returning to pre-recession levels, and higher demands for many services like health and education.”

As we explained in our Budget Dust and Double Trouble blog, there’s nothing coming down the pike to help local districts, many of whom have reduced their local spending on special education because of IDEA Recovery Act funds. Now, if States reduce their support of special education costs, maybe we’re headed for Triple Trouble!

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Find out about how your state funds special education! Get Financing Special Education: State Funding Formulas, a comprehensive review of state special education funding formulas.

The President released his federal budget for fiscal year 2011 (FY11) on February 1, 2010, as required by law.

The U.S. Dept. of Education (ED) made out pretty well, considering the domestic spending freeze announced by the President in conjunction with the budget. In fact, ED gets an additional $3.5 billion in FY11 over 2010 in the President’s proposed budget. But almost all of the proposed increase is earmarked for new competitive grants under the Elementary and Secondary Education Act (ESEA) – an extension of the Race to the Top competitive grant program created as part of the Recovery Act – which the administration has signaled is the way it wants to provide new funds under Title I.

Funding proposed for the Individuals with Disabilities Education Act (IDEA, Part B grants to states), however, gets a mere 2.2% increase over FY 2010  or what some members of Congress referred to as “budget dust” when ED Secretary Arne Duncan appeared before the House Budget Committee on February 25, 2010. Several members of the committee expressed strong concern about the very small (meaningless, really) increase that is provided in the proposed budget. (Watch or listen to the hearing webcast.) Members of the Education and Labor Committee expressed similar concerns during a hearing on March 17, 2010.

NOTE: At $11.7 billion,  ($250 million more than FY10) the federal funds to help states and local school districts with the additional costs of providing special education and related services to eligible students with disabilities will average $1,750 per child – approximately 17 percent of the national average per pupil expenditure (APPE). Congress originally committed to contribute to the cost of special education by providing 40% of the excess cost of special education – to be based on the APPE – often referred to as “full funding.” To see what “full funding” would look like for your state, see your State Special Education Report Card available here.

Not so, declared Secretary Duncan! States and local districts will have half of the $11.3 billion provided for IDEA in the Recovery Act during FY11, according to Duncan.  What Duncan failed to mention to the committee members (if one of the members is yours, consider pointing this out to him or her!) is that many, many districts took advantage of the IDEA provision that allows a reduction in local funds spent on special education when an increase in federal funds occurs. As the chart below shows, the Recovery Act (ARRA) funds resulted in a doubling of federal funds for FY09.

The testimony offered by Assistant Secretary Alexa Posny to the House Appropriations Committee at the March 25th hearing on the President’s budget also failed to make any mention of the IDEA reduction provision that was triggered by the large, one-time IDEA supplemental appropriation included in the Recovery Act. Posny informed the members of the sub-committee that “These (Recovery Act) funds are being used to improve the capacity of States and LEAs to provide the full array of special education and related services to students with disabilities and have allowed States, school districts and other grantees to continue to provide vital services to individuals in great need of these services during a time of economic stress. For IDEA programs, States report using ARRA funds to pay the salaries of over 50,000 personnel, including teachers, providers of related services, and others.”

Yet, without substantial and sustained increases to IDEA federal appropriations, many local districts could actually be spending less on special education once 2011 and 2012 roll around. An analysis provided to IDEA Money Watch by The Advocacy Institute shows the impact of the IDEA provision allowing reduction in local spending over time given the current appropriations picture. The analysis shows that, by the time the Recovery Act funds run out (all must be obligated by Sept. 30, 2011), a local district could be spending 12% less in local funds without violating IDEA “supplement not supplant” provisions. As we have reported here in the past, the IDEA provision triggered by the Recovery Act IDEA funds was never designed nor envisioned to be used under the circumstances created by the Recovery Act. (Eventually, we’ll get to learn about the impact of this provision thanks to new data now required to be reported to the U.S. Dept. of Education.)

The Bottom Line

What seemed like a windfall in early 2009 now looks like double trouble looming ahead. Because the federal appropriation for IDEA returned to the pre-Recovery Act level for 2010, all subsequent increases will again be subject to the IDEA provision allowing reductions to local spending. Meanwhile, districts can remain at their reduced local level of spending (also known as “maintenance of effort” or “MOE”) as states and districts face budget shortfalls the likes of which haven’t been seen for 30 years.

Some districts are already announcing special education cutbacks for the coming school year. While the new Jobs bill just passed by the Congress may help with preserving some education jobs, reductions in teaching positions, increases in class sizes, and other budget-reducing efforts loom large in the coming years.

Happy Birthday, IDEA Money Watch! Last March, before the ink was hardly dry on P.L. 111-5, the American Recovery and Reinvestment Act, IDEA Money Watch was up and running – providing tons of information and resources to help parents and advocates begin to track how $11.3 billion in additional funding for IDEA Part B (611, school-age children) would be used by the nation’s 14,000+ school districts.

We were excited! Excited about this one-time infusion of funds to support needed improvements in the services and supports for our 6 million school-age students with disabilities eligible under the IDEA. Many considered it an opportunity for an investment in truly transformational activities. And, since the Obama administration promised “unprecedented transparency,” all the better for those wanting to play a role in how this extra money would be spent.

One year later, we realize that our purpose has changed from playing a central role in a transformational experience to attempting to fill an informational black hole. As we reported in our last Balance Sheet, What Ten Months Have Taught Us, this project lead to discoveries we never imagined, nor particularly cared to confront.

We have faced the reality that much of what people thought would be funds spent on improving special education services and supports would, in fact, be supplanted by many local school districts because of a prickly little provision in IDEA. And that, furthermore, a district could use IDEA federal funds to pay for items previously funded with local funds as long as it maintains its level of local funding for special education. OK – at least the money is going to fund special education costs.

However, along the way one little detail seems to have been forgotten. It’s clearly stated in USED guidance, IDEA law and regulations. Here it is:

IDEA federal funds must only be used
for the excess costs of providing special education.

What, exactly, does this mean? Well, we turned to the excellent guidance provided by the Wisconsin Department of Public Instruction (we long ago acknowledged Wisconsin as the BEST state web site for information on IDEA Recovery Act funds). The Wisconsin Frequently Asked Questions page provides this helpful information:

“How can you determine if a cost is an excess cost of providing special education services?

When determining whether a cost is an excess cost, ask the following guiding questions.

In the absence of special education needs, would this cost exist?
If the answer is…
No, then the cost is an excess cost and may be eligible.
Yes, then the cost is not an excess cost and is not allowed.

Is this cost also generated by students without disabilities?
If the answer is…
No, then the cost is an excess cost and may be eligible.
Yes, then the cost is not an excess cost and is not allowed.

If it is a child specific service, is the service documented in the student’s IEP?
If the answer is…
Yes, then the cost is an excess cost and may be eligible .

No, then the cost is not an excess cost and is not allowed.”

Seems simple enough to us! Yet we see district spending plans that include items that surely can’t pass this test. Take, for example, the spending plan for the Trumbull school district in Connecticut.  According to the application submitted to the CT DOE, Trumbull will spend several thousand dollars to provide 2 modular classrooms for overcrowded elementary schools.  No “excess cost” there! Trumbull would have overcrowded classrooms regardless of its students with disabilities — so using student growth doesn’t pass the “excess cost” test. Trumbull will also spend thousands ($264,000) more for digital whiteboards for 5th grades and middle schools. Unless these whiteboards are additional equipment needed to fulfill the special education services required by the Individualized Education Programs (IEPs) of students (i.e., above and beyond the equipment purchased to educate non-disabled students in Trumbull), purchasing this equipment is not an “excess cost” of special education. Seems like Trumbull is purchasing whiteboards for every 5th grade and middle school classroom in the district. (According to Trumbull’s 2007-2008 profile, the district has 619 students with IEPs.)

Here again, we turn to Wisconsin’s FAQ which states:

“Can IDEA Recovery funds be used for classroom technology like SMART boards?

IDEA Recovery funds must only be used for the excess costs of providing special education. Acquisition of SMART board technology is not an excess cost of providing special education if the LEA has decided to equip classrooms in a school and simply charges the IDEA grant a prorated amount based upon the number of children with disabilities in the school. The equipment is an excess cost of special education when related to the needs of a child with a disability in accordance with the IEP of the child. It may be provided in a regular education class or other education-related setting, even if one or more nondisabled children benefit. When the equipment is no longer needed to meet the IEP needs of a child with a disability, it must be managed or disposed of in accordance with 34 CFR §80.32, Education Department General Administrative Regulations.”

The Bottom Line

Beginning to get the picture? Get ahold of the IDEA Recovery Act spending plan for your school district. Then put it to the “excess cost” test.  If a proposed expenditure doesn’t pass the “excess cost” test, ask the district for justification.

Let us know what you find!

As  we close the books on 2009, we stop to reflect on the road we’ve traveled in the 10  months since the U.S. Congress passed and President Obama signed the American Recovery and Reinvestment Act (ARRA) on February 17, 2009. To our surprise, the ARRA dumped an unexpected $11.3 billion in additional funds to help districts implement the Individuals with Disabilities Education Act (IDEA) aka, special education, for school-age students with disabilities – some 6 million of them according to the latest available data from the U.S. Dept. of Education (Fall 2007).  We thought this would be a development worth watching as well as an opportunity for parents and advocates to become involved in special education funding decisions at their district level – the place where all the IDEA ARRA money would land. After all, the IDEA ARRA funds resulted in a doubling of federal support for special education in one year!

In March 2009 we quickly built a Web site, started a newsletter, got on Twitter and Facebook — and prepared to bask in the unprecedented transparency the Obama administration promised would permeate use of all ARRA funds. Then we waited.

In April 2009 we got guidance from USED providing information about the new funding for programs under IDEA – funding that, according to the guidance,  provides an “unprecedented opportunity for states and LEAs to implement innovative strategies to improve outcomes for children and youth with disabilities.” That guidance included information about the little known and infrequently used IDEA provision allowing LEAs to reduce local spending on special education when federal funding increases. It also included a tidbit about how LEAs would need to have a “meets requirements” rating from their state in order to take advantage of the option to reduce local special education spending.

The April 2009 USED guidance seemed to be an accurate reading of the pertinent IDEA provisions. But just how are States going about determining these “ratings” we asked. We conducted a Webinar to help people understand the ins and outs of the State Performance Plan that addresses the indicators and establishes the targets used to make the annual “rating” for each LEA. Turned out that USED’s Office of Special Education Programs (OSEP) had provided guidance to States advising them that they need only consider some of the “compliance” indicators … and, only at their option, did States need to consider any of the “performance” indicators — those are things like graduation rates, dropout rates, proficiency rates on state assessments of reading and math.

Suddenly, LEA ratings became a big deal. OK, since “transparency” is the ARRA buzz word and Obama pledge, the LEA ratings should be easy to find, yes? Not so fast. We discovered that USED had also informed the States that they did not need to provide the LEA ratings to the public…only to the LEAs. Seemed like a real breech of the public’s trust to encourage States to withhold information from the public.

During the Summer of 2009, we set out to obtain the “ratings” each State had issued to its LEAs so that our audience could have the information they deserve. Our efforts were supported in large part by our good friends at the Center for Law and Education (CLE). Together, we sent a Request for Public Records to every State, requesting the ratings. Along the way, we discovered that some states had changed (read: relaxed) the criteria for the ratings so that more LEAs would receive the coveted “Meets Requirements” rating and, therefore, be eligible to reduce  local spending on special education costs. In late summer, our findings prompted a letter from Senator Tom Harkin to ED Secretary Arne Duncan on the matter.

Meanwhile, we also asked CLE to look into the legal authority for the guidance that OSEP had provided to the States. In August 2009, CLE issues its legal analysis and sent it to the U.S.ED and also shared their findings with the U.S. Congress.

In September 2009 USED released a second round of guidance on IDEA Recovery Act funds. This time the focus was on recommendations for ways to spend the extra money. We thought that the guidance might encourage districts to use the outcome data from their Annual Performance Report to guide their use of Recovery Act funds. Wrong. We also thought that dropout prevention should be at the top of the list of recommendations, since students with disabilities have a dropout rate that far exceeds that of their non-disabled peers. Wrong again…in fact, the word “dropout” appeared only twice in the 40-page guidance.

During the Fall of 2009 we continued our quest for LEA “ratings” … working our way through an array of responses from States, including some requests for significant fees to obtain the information we sought — pretty gutsy, we thought! We have posted the ratings on the IDEA Money Watch State Blogs.

In October 2009 we were comforted to see a letter from U.S. ED Secretary Arne Duncan to Chief State School Officers and State Directors of Special Education urging them to maintain high standards in the LEA rating process and to disclose LEA ratings to the public by posting the information on  State departments of education web sites. However, we didn’t see any changes as a result of this communication. In fact, Arne’s advice seemed  a tad awkward to us, since  it was U.S.ED that issued the guidance on how to make the determinations and gave States its blessing to keep the ratings from the public. Still, we appreciated Arne’s efforts.

In November 2009 we discovered lots of interesting ways school districts are using IDEA Recovery Act funds. Some are not so wonderful…like the use of $870,000 to settle a bill resulting from mismanagement by a regional cooperative agency (BOCES) in Colorado. Others are encouraging…like the use of $580,000 in stimulus money on training for inclusion teachers in a Virginia district. One we found to be downright appalling … that was when the Greenfield district in Wisconsin announced plans to use IDEA Recovery Act funds to build “seclusion” areas for special education students.

In December 2009 the GAO released a study that affirmed alot of what we had already learned. The study – based on a survey of the 16 states and District of Columbia being tracked by GAO – found many states had changed the criteria for rating districts in order to give more districts the OK to shift local funds. It also found that 44% of those eligible to shift funds intended to do so.

The Bottom Line

We set out to provide information and resources to help parents and advocates of students with disabilities play an active role in the use of the IDEA Recovery Act funds. We learned that there was alot more to it.

Hopefully 2010 will provide more good stories than bad, more transparency than secrecy, and more opportunities for collaboration between school officials and parents. Whatever the year brings, we’ll be here covering it all.

On October 21, 2009  US Education Secretary Arne Duncan released a letter to Chief State School Officers and State Directors of Special Education urging states to maintain high standards and not compromise the section 616 determination process under the Individuals with Disabilities Education Act. As we have reported here, the “determination process” and the “ratings” given to local school districts (LEAs) became a big deal in light of the large one-time increase in IDEA Part B federal funds LEAs are receiving as a result of the American Recovery and Reinvestment Act (ARRA). The letter was likely prompted by a communication sent over from Senator Tom Harkin, Chairman of the Appropriations Subcommittee on Labor, HHS, Education and Related Agencies back in August in which the Senator expressed concern about a relaxation of the criteria States were using to determine if districts met the requirements of IDEA.

Duncan’s letter delivers advice on three issues relating to LEA determinations:

ISSUE 1: Changing the determination ratings for LEAs. On this issue, Arne says  “I am concerned about States lowering their standards for these determinations, particularly since it enables LEAs that have not met previously established performance targets to reduce spending on special education.“

We’ve posted information about states that have retreated from their existing criteria in order to provide LEAs with a “meets requirements” rating for the year that involves the Recovery Act funds. Among them are Illinois, Missouri and Michigan.

Why is Arne’s advice awkward? Because the U.S. Department of Education’s Office of Special Education Programs (OSEP) has given States wide discretion in how to go about making these “determinations.” In fact, OSEP has responded to reports of States’ changing the determination process by saying that such changes are within their rights.

ISSUE 2: Ignoring performance indicators in determination process. On this issue, Arne says “I strongly advise States not to eliminate consideration of important performance indicators (such as graduation rates or performance on assessments) in making these determinations.  I believe that these performance indicators are valuable measures of the overall success of an agency’s efforts to provide high-quality special education services to children with disabilities.”

We’ve found few if any States that are using any of the “performance” indicators in their criteria for LEA determinations. In fact, we’re reported on the performance of LEAs such as Clark County School District in Nevada to highlight how a district where just 11% of students with disabilities get a regular diploma and just 17% of 8th grade students with disabilities are reading at or above proficiency still gets a “meets requirements” rating.

Why is Arne’s advice awkward? Because the guidance provided to States by OSEP clearly requires States to use only “compliance” indicators  in the LEA determination process. Most states did just that – ignoring critical areas of performance such as graduation rates or proficiency on state assessments of reading and math. Likewise, when OSEP determinates its annual ratings for each State’s performance, it too ignores performance data. So why would States hold their LEAs to a higher standard?

ISSUE 3: Hiding determination criteria and LEA determinations. On this issue, Arne says “I strongly encourage States to further the transparency of the determinations process by informing the public of the criteria used in making LEA determinations and the determination category of each LEA in the State by posting this information on the SEA’s Internet Web site.”

We’ve found only four  States that have posted the LEA determinations on their Web sites – Florida, Maryland, Nevada and Rhode Island.  Because of this lack of transparency, we have been busy obtaining the LEA ratings – some 14,000 of them -  in order to make this important information available to the public.  The States for which LEA ratings are available are listed on our homepage.

Why is Arne’s advice awkward? Because OSEP advised the States that they did not need to make the LEA determinations public. We’re not sure why OSEP thought such guidance was appropriate… but we were sure happy to see Duncan address this issue in his letter. We consider Arne’s advice to trump OSEP’s earlier guidance and we’ll expect to see those ratings going up on States’ Web sites!

The Bottom Line.

We appreciate Duncan’s October 21st letter … however, it’s kind of like closing the barn door after the horse has escaped — especially when you gave the horse the key to the door! The process outlined by OSEP regarding LEA determinations needs serious review. As the Center for Law and Education reported, there seems to be “no statutory authority for USEd’s guidance allowing States to limit their determinations of whether LEAs meet the requirements of IDEA to exclude consideration of performance indicators.” And, regardless of the particular process outlined by OSEP, there is certainly no justification for hiding the LEA determinations from the public.

IDEA Money Watch is pleased to learn that Senator Tom Harkin (D-IA), chairman of the Senate Appropriations Subcommittee on Labor, HHS, Education and Related Agencies and a member of the Committee on Health, Education, Labor and Pension (HELP), has recently communicated to Secretary of Education Arne Duncan his concern regarding the use of IDEA funds provided in the American Recovery and Reinvestment Act (ARRA).

Specifically, Harkin noted his concern that some States are relaxing the criteria used to determine if districts are meeting the requirements of the IDEA, resulting in districts being eligible to reduce local special education expenditures by an amount equal to half of their increase in IDEA federal funds in FY 2009. Harkin reminds the Secretary that the investment made by the ARRA will not reap the intended benefits for students with disabilities if districts that are not fulfilling IDEA requirements-measured by both compliance and performance data-are allowed to reduce local spending on special education. The Senator urges the Secretary to review the situation before releasing the remaining half of the IDEA ARRA funds, scheduled for September 1, 2009. IDEA Money Watch is grateful to Senator Harkin for his steadfast advocacy on behalf of students with disabilities.

The Bottom Line

At the June 3, 2009 Labor HHS Appropriations Subcommitte Hearing on Education funding, Secretary Duncan answered questions about the use of education funds provided in the Recovery Act and the President’s FY10 Budget Request. Duncan provided an assurance that when  States are out of compliance with IDEA, the Department would not give them the flexibility to move funds out of special education and into other general education activities. Yet that is exactly what is happening…evidenced by large districts like Nevada’s Clark County School District, where a mere 11% of students with IEPs graduate with a regular diploma yet the district will move $14 million of local funds out of special education.

The American Recovery and Reinvestment Act (ARRA) has made us look closely at provisions of the Individuals with Disabilities Education Act (IDEA) that would otherwise have gotten little more than a nod. As we reported in What’s in a Rating, the IDEA provision allowing local educational agencies (LEAs, aka, local school districts) to reduce the amount of local funds expended on the excess cost of educating students with disabilities when federal funds increase took on new significance when the Recovery Act dumped more than $12 billion into the IDEA allocation for FY09.

We quickly learned (via U.S. Department of Education (USEd) guidance on ARRA) that LEAs could ONLY take advantage of this provision if they had received a “meets requirements” rating from the state on  implementation of IDEA as measured by the indicators in the State Performance Plan (SPP). That eye-opener lead us to start looked at just how the States had been instructed to go about determining the annual “ratings” for local districts.  We discovered that the USEd’s  Office of Special Education Programs (OSEP) had issued lots of guidance to states about how to make the annual determinations (ratings) of LEAs. We learned, for example, that OSEP told States that they need only consider how LEAs performed on a few compliance indicators of the State Performance Plan (SPP)…and need not consider how LEAs did on any of the performance indicators of the SPP — stuff like graduating with a regular diploma, performing at a proficient level on state assessments.

Closer Look.

The Center for Law and Education (CLE) has taken a hard look at both the federal regulations and the federal guidance issued by USEd. In its memorandum released August 11, 2009, CLE provides an authoritative legal analysis of  all guidance to States. CLE has concluded that, based on both the intent and plain language of Congress, there seems to be no statutory authority for USEd’s guidance allowing States to limit their determinations of whether LEAs meet the requirements of IDEA to exclude consideration of performance indicators. According to CLE, the language of the statute plainly requires that LEAs consider and meet all of the targets contained in their State’s performance plan in order to be able to reduce their local level of expenditures (MOE) when federal funding increase.

The Bottom Line.

There are lots of unintended consequences attached to the whopping one-time increase in IDEA federal funds brought about by the ARRA. One of them is that it has made us take this closer look at the State Performance Plans and Annual Performance Reports, the guidance issued by USEd, and the all-important Legislative intent of IDEA 2004.

IDEA Money Watch doesn’t see any legitamacy to OSEP’s  guidance — particularly when taken in the context of No Child Left Behind (the current version of the Elementary and Secondary Education Act) which requires all students — including students with disabilities – to be proficient on state assessments.

OSEP has stated that, according to them, graduation with a regular high school diploma isn’t a goal of IDEA….neither is scoring proficient on state assessments (via either an alternate assessment or the regular assessment with accommodations).  However, OSEP must have questioned the requirements it outlined for the States. In a FAQ document issued to States in October 2006, OSEP poses this question among its list of issues and challenges for the States,  ” What is the message the State sends to the public if the criteria for making determinations relies solely on program’s performance on procedural compliance indicators?” We are learning the answer to that question more quickly than many would have thought. This approach doesn’t foster improvement for students with disabilities — it forces districts to focus on issues of compliance at the expense of student performance. And now, it has also allowed local districts with dismal performance (like Clark County School District in Nevada) to shift millions of dollars away from special education.

We can only hope that parents and advocates question the  process sanctioned by OSEP….and encourage their state department of education to take a comprehensive approach to determining the performance of local districts, as well as setting rigorous targets for all indicators in the State Performance Plan.

Endnote: Readers wanting to learn more about the SPP and APR process are invited to review the archive of our Webinar on this topic…its free and available here.