OR
Educational Policy and
Program Solutions, Inc.
Reston, VA
PAGE
INTRODUCTION 1
WHAT PROBLEMS CONFRONT
SEAS WHEN OPERATINC MONITORINC SYSTEMS?
2
WHAT IS MONITORING? 6
WHAT/IS THE DIFFERENCE BETWEEN MONITORINC AND
ENFORCEMENT? 8
WHAT TYPES OF INFORMATION DO MONITORINC SYSTEMS
REQUIRE TO OPERATE? 8
WHAT IS "FOCUSED” MONITORING? 11
WHAT IS THE RELATI0NSHIP BETWEEN
"FOCUSED" MONITORING AND “CYCLICAL”
MONITORING? 12
WHAT ARE THE STEPS IN IMPLEMENTING A VIABLE MONITORING
SYSTEM? 13
SUMMARY 16
NOTES 17
Purpose and Assumption. The purpose of this
paper is to identify the characteristics of monitoring; identify the
characteristics of “focused” monitoring; and describe those characteristics as
they apply to proper methods of administrat1on by State Education Agencies
(SEAs). In order to accompl1sh the latter, several essential questions must be
addressed. These questions are derived from basic assumptions about monitor1ng
that form the framework for ~he eventual discussion of focused monitoring.
1.
Monitoring
is not a concept or practice that is clearly defined and understood by those
who use it, nor by those who provide technical assistance for its
implementation.
2.
Monitoring
is generally viewed as an “episode” rather than a process, which gives rise to
the notion that monitoring can begin and end.
3.
A
thorough discussion of monitoring approaches is not possible until an
acceptable definition and explanation of monitoring is presented.
4.
“Focused”
monitoring is not an alternative to other types of monitoring.
5.
Ensuring
compliance is a legitimate role and responsibility of SEAs. However, it is a vastly different process
when applied to Part B of the Education of the Handicapped Act as amended
(EHA-B) than when applied to programs such as Chapter I and Vocational
Education.
Context. Federal requirements
provide minimal guidance to SEAs on monitoring The lack of clarity in policy,
regulation, and law and the importance and the nature of monitoring generate extensive
interest, debate and controversy. The Education Department General
Administrative Regulations {EDGAR), and the EHA-B regulations2, set forth a
general mandate to monitor certain requirements (e.g., Least Restrictive
Environment and private school placements). These regulations also establish a
basic but incomplete standard for what has come to be known as monitoring:
"...adopt and use proper methods of administration to
correct identified deficiencies" (34 CFR 76.101).
This standard from EDGAR, in addition to the requirement to
enforce legal obligations and policies and procedures, is the basis for the
Office of Special Education Programs' (OSEP) insistence that States have
monitoring methods in place as a condition for receipt of Federal funds. The
monitoring requirement and enforcement requirement are part of each State's
General Application for funds. Given the requirement and the continuous
governmental interest in the issue, monitoring becomes the issue that
never seems to go away. Perhaps it can be better understood why it has become a
sometimes-volatile topic if the following questions are answered:
Answering these questions should yield a
basic understanding about monitoring and, in turn, an understanding of
"focused" monitoring.
SEA. WHEN OPERATING
MONITORING SYSTEMS?
There are at least six problems that confront SEAs when
operating monitoring systems.
Lack of a Standard for Monitoring.. Most of the criticisms
and problems identified by the Office of Civil Rights (OCR), Office of Special
Education Programs (OSEP), and professional organizations are created because a
standard for monitoring has not been applied until after the system are
developed and implemented. In other words, the standard for performance and outcomes
is developed after the fact. For example, in 1985 OSEP set forth a
reasonable standard for monitoring in its unofficial manuals and has reflected
that standard in its letters of finding. The SEA monitoring systems that have
existed for as many as ten years do not meet the standard. Advocacy
organizations also have expectation for monitoring that the SEA systems do not
meet. What is the standard they have used? Unfortunately, the standard becomes
clear only after letters of finding or reports cr1t1cizing the systems are
issued. If the fundamental issue of what monitoring should be and how it must
operate is not dealt with, systems remain open to external criticism.
Inabi11ty to Correct
Deficiencies. A
second problem confronting existing system is ensuring the correction of
deficiencies. In many areas that are monitored, sufficient information is
collected to identify problems, but deficiencies go unaddressed for months and
even years. There is often no procedure set forth for what constitutes an appropriate
corrective action. And. there is little recognition of the person hours it
takes to secure corrective actions in States with as many as 1000 school
districts.
SEAs are vulnerable to accusations of failing to ensure
compliance. Since what SEA staffs are working hard at is not clearly defined,
their activity might appear to fail when viewed by any given observer at any
given moment.
'Fragmentation of Monitoring Responsibilities. A third and very
difficult problem facing SEAs is the fragmentation of various monitoring
responsibilities throughout the organization. The fundamental responsibility of
an SEA in ensuring Free and Appropriate Public Education (FAPE) is to use
"proper methods” of administration." When asked how this is done,
most SEAs respond by presenting their cyclical monitoring system. However, the
remainder of the “proper methods” has not been considered as part of that
process:
1. The establishment and implementation of policy (34 CFR
Part 300);
2. Program evaluation (34 CFR 76.101);
3. The review and approval of local education agency (LEA)
applications (34 CFR Part 300180-18b,
190-94, 220~239; Part 76.300.305,652.656. and 770-774);
4. The investigation and resolut1on of complaints (34 CFR
76.780.782. and 734);
5. The dissemination and adoption of promising practices (34
CFR 300.556; and 76.101 and 304);
6. The provision of technical assistance; (34 CFR 300.556;
76.101);
7. The correction of identified deficiencies (34 CFR 76101;
8. The dissemination of information on program requirements
(34 CFR 76 101);
9. The utilization of appropriate methods to administer
funds (34 CFR 76. 101); and
10. Enforcement of legal obligations (policies and
procedures) (34 CFR 399.575).
While there are certainly exceptions, a review of SEA
procedure reveals two important observations. First, monitoring method are not
integrated into an overall organizational pattern. Rather, they are often
administered separate from one another. When this is the case it is not possible
to use all of the available resources to ensure compliance. Second. SEAs
usually attempt to ensure compliance through an on-site cyclical review
process. The EHA-B requirements and corresponding State requirements are simply
too broad in scope to be monitored using only one adm1nietrative vehicle. When
these processes are separate and not used to complement one another, the
monitoring systems cannot ensure compliance.
Undesirable Outcomes
From Cyclical Monitoring. A fourth problem is the nature of cyclical monitoring
itself. Cyclical monitoring results in two undesirable outcomes. First, if
diffuses significant amounts of SEA resources across thousands of
implementation requirements in hundreds of school districts; and second, it
create "the high visibility monitoring episode". At any given time
monitoring staff can be engaged in various forms of travel, data collection.
report development, negotiation, enforcements and confrontation with over half
the school districts in a State. And, it is possible that most of the work will
involve a wide variety of State or Federally imposed requirements. In practice
the cycle and the work it generates keep the State from assuming a corrective
action or enforcement posture. There is so much potential "heat"
generated when an issue finally reaches the enforcement stage that staff
resources and political realities prevent the Agency from assuming an
aggressive posture on anyone issue.
Secondly, cyclical monitoring has negative
effects on SEA monitoring staff. They become absorbed with the tremendous
workload and become isolated due to the "bad guy" image. They become
frustrated with the need to address many requirements at a superficial level.
They tend to become disenchanted with their perceived role as change agent when
they cannot correct the basic problems of implementing the law.
The results are that
most of the districts are bothered and aggravated, many deficiencies go
uncorrected, and monitoring becomes a nuisance rather than a vehicle for
investigating important issues and identifying needs that must be
addressed. All energies go into the
management of the “monitoring” problem rather than the solutions necessary to
correct the issue.
Lack of Clear State
Policy.
Another common problem that adversely affects SEA capacity to monitor
effectively is the lack of clear policy.
In order to identify deficiencies, the standard that defines the
deficiency must be clearly stated and measurable. Otherwise, the standard for the deficiency lies in the eyes of
the beholder rather than the monitor.
The standard must also be one that is consistent with Federal and State
law. When policy or procedures are not
measurable and operational, data cannot be collected to determine whether they
are implemented nor can the organization responsible for carrying out the
policy or procedure legitimately be held accountable.
Without measurable and
operational policy, or the ability of the monitor to interpret and then make a
case, monitoring and other methods of administration do not ensure compliance.
There are numerous examples of policy needs; e.g., suspension and expulsion,
extended school year, and placement in private schools. When policy is in evidence, cases are won
(e.g., Rowley4) and where it is not, cases are lost (e.g., Armstrong 5). If the SEA has not defined measurable and
operational policy, then someone else’s standards might prevail.
While such sound policy
development is beneficial in other administrative responsibilities, in
monitoring it is absolutely essential. Findings will not be sustained unless
there is a clear standard: and when findings are made against unclear
standards, the Agency may be accused of being arbitrary and inconsistent.
Placement, which nationally accounts for 70% of due process hearings, is not defined
in many SEA regulations. The absence of a standard for placement not only makes
monitoring difficult, it costs a lot of money. In many States millions of
dollars are taken "off the top” for room and board. Such policy confusion
and lack of clarity places a monitoring system in constant jeopardy and
subjects it to repeated charges of ineffectiveness.
Lack of Clear LEA lines
of Accountability. The
final problem is lack of clear lines of LEA accountability to correct
identified deficiencies. Many states use joint agreements or cooperatives to
administer special education programs. In such situations the special education
administrator is often held accountable to correct deficiencies in districts
that are members of the collaborative unit. When this occurs it is sometimes
impossible for the special educator to force member districts to cooperate.
Cooperatives frequently function quite differently from one another even within
the same State. A governance and accountability problem emerges that makes the
already sensitive monitoring work even more difficult. Even when LEAs
themselves are the focus of monitoring, it is usually specia1 education
personnel who negotiate and resolve findings. As a result, the responsible
officials, such as Superintendents, continue to treat special education
findings as somebody else’s problem. This creates the "nuisance” phenomena
and reinforces special education as a separate service delivery system.
Any monitoring system
must be designed to accommodate each of the 81x problems previously described.
These problems are readily observed from state to state, occurring in varying
forms and with varying frequency. The effect is a resource intensive,
unrewarding effort that is subjected to ongoing assault. The problems exist
when the purpose and outcomes of the monitoring system are unclear. As long as
EHA-B remains an individual entitlement program, monitoring systems will be
scrutinized and evaluated. As long as the purpose and intended outcomes of the
system remain unclear, attending to hearings and criticisms will consume as
much time as the administration of the systems themselves.
If the most basic problem is the absence of an appropriate
standard, one must be set forth. A definition of monitoring is necessary:
* The collection of information to make compliance
determinations concerning an established standard.
This definition applies generically to all fields. For
example, the fetal heart monitor collects data on the fetal heartbeat and
agitation, in relation to the mother’s rate of activity so that the doctor can
determine compliance with a standard for the normal range of fetal and maternal
behavior.
A More Complex Standard.
The
standard for compliance under EHA-B is somewhat more complex than many other
standards. For EHA-B, the standard is to ensure the availab1lity of
“...special education
and related services which:
a.
Are
provided at public expenses, under public supervision and direction, and
without charge;
b.
Meet
the standards of the State educational agency including the requirements of the
part (34 CFR Par t 300);
c.
Includes
preschool, elementary school, or secondary school education in the State
involved; and
d.
Are
provided in conformity with an Individualized Educational Program which meets
the requirements under 300.00 –349 of Section C. (34 CFR 300.349)”:
Therefore, the standard for monitoring under EHA-B must be
extended to define the “established standard(s)”:
·
The
collection of information to make compliance determinations concerning all
State and Federal requirements.
Two
more elements of the definition must be considered in order to accomplish the
basic mission of ensuring compliance with EHA-B. First, EHA-B is an individual entitlement Act. That is, each
child must receive the benefits provided under the Act and State Standards all
of the time. There is no such thing as almost compliance or percentage of
compliance. Second, the Act is quite
broad in terms of where those entitlements must be ensured. Each State Plan submitted to the U.S.
Department of Education for federal funds under EHA-B, assures that the State
has developed and implemented policies and procedures to make available a free
appropriate public education to each handicapped school-age child residing
within the State. Specifically the Plan
must assure that--
"Each educational program for handicapped children
administered within the State, including each program administered by any other
public agency --
Given these criteria, the definition must be amended to
incorporate the concepts of continuity and coverage:
* The collection of information on a
continuous basis, from a11 agencies serving handicapped students, to make
compliance determination concerning all State and Federal requirements.
This general definition
establishes a basic standard for judging SEA monitoring systems. It requires no specific methods such as
on-site visits or focused investigations, nor does it preclude the use of any
specific method or any information collected through a number of methods.
Two Additional Components. Despite the arrival at
a definition of monitoring, the task of creating a standard for monitoring is
not finished. In addition to collecting
the information to determine deficiencies, the EDGAR requirements expressly
require the correction of those deficiencies.
To do so that State must adopt and use a proper method: a reasonable set
of activities that works. Whatever the
method is it must result in an identified deficiency being corrected in a
reasonable period of time. The period
of time varies with the deficiency. A
standard for ensuring compliance now emerges with the addition of these EDGAR
requirements:
* The collection of
information on a continuous basis, from all agencies serving handicapped
students, to make compliance determinations concerning all State and Federal
requirements and
* the correction of identified deficiencies within a
reasonable period of time.
However, the standard
lacks one final element. What happens if the State cannot correct the
identified deficiency? The answer i. actually found in ERA-B and EDGAR. The
State mu8t enforce its legal obligations and ensure compl1ance with all
policies and procedures. It must also ensure that no Federal monies are awarded
to any agency that fai16 to comply. Flnal1y, it must continue to ensure the
provision of FAPE even when an agency is unwilling or fails to provide FAPE.
Thus, the third element of the standard is added:
* The collection of information on a continuous basis, from
all agencies serving handicapped students, to make compliance determinations
concerning all State and Federal requirements;
* the correction of identified
deficiencies within a reasonable period of time; and
* the
enforcement of legal obligations imposed by State or Federal law.
This definition presents a generic standard for a system
that would ensure compliance. It represents a standard for ensuring compliance
based in case law and existing Federal requirements. It does not advocate any
preferred methods. It does, however, create a different "picture" of
monitoring than what is usually presented by SEAs.
These two terms,
monitoring and enforcement, are often used interchangeably. Although it may,
after attempts to correct a deficiency through technical assistance, yield a
formal enforcement action, monitoring is not enforcement. An analogy may be
found in the concept of evaluation. Evaluation can be seen to embody three
distinct steps: measurement, analysis, and evaluation. Measurement and analysis
do not constitute evaluation. The administration of an intelligence test is not
evaluation. Evaluation occurs only when a determination is made regarding the
data. An evaluation activity can only be carried out, however, when the
framework for measuring and assessing the activity is established. So it is
with enforcement. For focused monitoring to be effective, it must be carried
out within the framework of a potential enforcement activity.
This means that the data collection procedures and analysis
techniques must be able to withstand the teat of yielding information and
conclusions that will "stand up under the test of law. If this is not the
case, the monitoring activity is an exercise more similar to accreditation that
enforcement. The process becomes one of
mutual consent instead of a potentially viable vehicle for exercising State
authority and responsibility for ensuring the availability of FAPE. Monitoring
is not enforcement and may never result in it. Enforcement, However, does
require a proper method of monitoring.
REQUIRE TO OPERATE?
This is the first operational question to be addressed. The answer is, of course, information that
is sufficient to make compliance determinations for all State and Federal
requirements from all affected agencies.
What principles can be applied to further define information
requirements?
Four
Principles in Defining Information Types.
The first principle in determining the type of information is to make
certain that the information is about behavior since behavior is all that can
be measured. If policy does not define
the compliant behavior, the requirement cannot be monitored. If there is an obligation imposed that is
not behavioral, and policy is not developed to translate the obligation into
behavior, there is no operational standard.
The chances remain that someone else, such as a Hearing Officer or
Federal official will set the standard.
It is imperative that whatever data is collected must be gathered in the
context of defined compliant behavior.
The second principle is to collect
and use information that assures process compliance as well as documents
compliance. This emphasizes the
importance of LEA policies and procedures.
Sound LEA procedures make monitoring much easier as they provide a behavioral
basis for monitoring and can further ensure compliance at the local level. It is much more reasonable to argue that a
State is in compliance when local procedures are routinely reviewed. As a result, the compulsion to go into all
districts as often as possible can be easily controlled.
The third principle is that a
monitoring system should never take on an issue that the Agency will not stand
behind. “Damn the torpedoes, full speed
ahead” or “bravado” monitoring is fun
for a while. However, it eventually
disintegrates into confrontation and compromise. Monitoring must be designed to yield meaningful change that
ensures that entitlements to children are guaranteed. This only happens when the relationship between the LEAs and the
State Department is characterized by communication and cooperation on the
myriad of problems confronting local special educators. On the other hand, one can never ignore
information that clearly demonstrates noncompliance. Looking the other way is equally as suicidal as “bravado”
monitoring and both approaches are self-destructive.
Fourth, and finally, every available
information source should be used before electing to collect information
on-site. On-site information collection
is most costly unfulfilled expectations among advocates and school
districts. When on-site investigations
are the primary sources of data collection, the monitoring system is further
separated from the other sources of data and from information that can and
should be used to ensure compliance.
Each state has available a variety of information sources that can be
used to help determine compliance.
Types of information. Information usually available to an SEA and
that can be used to make compliance determinations, to suggest the need for technical
assistance or to establish the basis for more intensive investigatory work
(i.e., focused monitoring) is as follows:
A. Historical information
B. Data to be Colleted
Data should be collected at four levels:
1.
Child
Level: student records including IEPs, procedural safeguards, and program
offerings.
2.
Classroom
Level: teacher certifications, teacher-student ratios, assignment of aides,
class schedules, placement of classes in buildings, and curriculum.
3.
Building
Level: OCR 101-102 data, placement data, student enrollment data, and range of
handicapping conditions served.
4.
District
Level: policies and procedures, out of district placements, child I.D. data,
placement data, and personnel data (including, if applicable, Regional or
cooperative level data).
C. Additional Data
These types of data that
can be used in selecting approaches to resolve possible problems and issues.
Among the approaches are technical assistance, on-site consultations,
negotiations, training, additional funding and focused monitoring. Based on
these data and the selected approach (es), strategies for further data
collection can be chosen. These may include letters of inquiry, on-site
investigations, issuance of direct compliance orders, or notification of
opportunities to seek clarification through meetings.
The essential difference between this information-oriented
approach and the more traditional on-site cyclical approach is that all
methods of administration are used to carry out compliance and program
improvement initiatives. This
ensures better use of resources, more positive relationships with school districts,
and when necessary more rigorous enforcement strategies. The posture and strategies adopted by the
SEA are developed on the basis of the problem or issue rather than from a
posture or strategy that was set in stone.
Inappropriate and ineffective strategies are less likely to result.
Focused monitoring is an
alternative to a cyclical on-site process.
As stated earlier, one of the problems with existing monitoring systems
is that the systems are literally described as on-site reviews. To most persons the cyclical on-site visit
is monitoring. This view results in
fragmentation, episodic monitoring, uncorrected deficiencies, LEA-SEA conflict
and an overworked monitoring staff.
The general definition
of monitoring provides the context for a rational discussion of focused
monitoring. Although other terms for
focused monitoring are used informally by OSEP and some States (i.e., “specific
compliance monitoring” or “targeted monitoring”), the following definition is
proposed:
Focused monitoring is a method of collecting information
to make compliance determinations that are carried out because a sufficient
amount of information exists to warrant an investigation of an agency or group
of agencies.
This definition works
only if the SEA operates a management information system that yields the data
necessary to assume an investigatory posture.
It also requires measurable policy against which to compare information. Additionally, the SEA must have the will and
the resources to carry out such an activity.
Focused monitoring involves the following processes:
1.
Defining
an investigatory hypothesis based upon available data,
2.
Developing
a plan to reliably test the hypothesis, and
3.
Conducting
an investigation that confirms or rejects the hypothesis.
For example, if annual
data reports from a particular section of the state showed an unusually high
percentage of placements in segregated settings for students with mild
retardation and LEA plans from that region contained weak procedures for
placement decisions and several complaints had been received from parents about
the limited option discussed at the time of placement, the hypothesis might be
formed that students were being placed on the basis of handicaps in violation
of 34 CFR 300.552(a)(2). In this case, an intensive study would be designed to
collect, analyze, and interpret data from multiple sources in order to test
that hypothesis.
Focused monitoring
cannot occur as frequently as the constant on-site cyclical process. The issues to be addressed by focused
monitoring are more complex. They
involve “second-generation” issues such as LRE, private school finance, other
agency implementation, culturally biased assessment, and meaningful
implementation. The criticism that
monitoring is “paper compliance.” Is the result of unwillingness to assume
investigatory postures or to “make a case.”
Focused monitoring goes well beyond “paper compliance.” It is, therefore, more resource intensive
for a given focused issue and can be more confrontational.
However, given the emerging sophistication of parents,
attorneys, and school systems, focused monitoring appears to be the most
appropriate accommodation that can be made in existing systems. SEAs cannot keep up with monitoring demands,
case law and increasingly complex issues by continuing with cyclical
monitoring, especially when the system involves an accreditation-like
approach. That approach has a non-legal
orientation and its goal is school “approval.”
The cyclical approach is far too resource intensive to get beyond “paper
compliance.” Because of their pervasive intrusiveness, lack of credibility, and
resource demands, cyclical systems are under serious scrutiny.
"FOCUSED
MONITORING" AND "CYCLICAL MONITORING?"
The relationship
question implies that the two approaches are complementary or can coexist in
some way. As conceived in this paper,
focused approaches would be a small part of a larger approach that replaces
cyclical monitoring. As long as
cyclical monitoring is conceived to be the on-site review of LEAs on a
predetermined periodic basis, focused monitoring cannot play a significant
role. In terms of resources, few States
could continue the current cyclical systems and add focused monitoring. During a transition period, it would be
necessary to maintain the cycle; but the cycle could become more supportive and
assistance oriented. The cycle would,
however, be important during the transition because the historical information
base necessary to implement an integrated system for ensuring compliance does
not exist in most States.
-13
-
To operate without a
cycle, the State would need to have a management information system in
place. Such a system should be expansive
enough to be reasonably certain that if deficiencies exist the information
system will identify them. And, in most
instances, the SEA would be able to correct the deficiencies through means
other than full-scale on-site data collections and investigations. Once this capacity is developed, the need
for the periodic on-site review, “whether you need it or not,” diminishes
greatly. States could then spend
resources to go into LEAs to provide training and assistance as the major mode
of interaction.
Further, cyclical
approaches could find an LEA in compliance where a focused review might find
serious violations of the law since cyclical approaches are usually broad in
scope and not investigatory in nature. A cyclical system might rely on paper
documentation while an investigatory approach would relate documents,
interviews, and observed behaviors. It becomes very difficult to find an agency
out of compliance after having been found in compliance by the same agency. A
cyclical system can actually hinder the operation of a more investigatory
approach.
VIABLE METHODS FOR
ENSURING COMPLIANCE AND IMPROVING
PRORAM PERFORMANCE ?
A
viable system is one that addresses the basic problems set forth in question 1
and meets the standard established in Question 2. To do this the system would
have to undertake the steps listed below:
Step 2: Embark on
a systematic effort to identify areas where policy is operational and
measurable, and develop policy where this is not the cage.
Step 3: Identify
all existing obligations for proper method of administration and ascertain what
role each can play in ensuring compliance.
Step 4: Identify
existing and additional sources of information that are available or could be
made available.
Step 5: Establish
criteria for determining priority issues for application of the various methods
of administration.
Step 6: Organize
and train staff to fulfill these responsibilities.
Each step is explained
below.
Step 1: Establish a standard for operation
consistent with existing legal obligations and consistent with the posture of
the SEA in the of its preferred relationship with LEAs
This problem can be addressed by adopting a standard similar
to that set forth in response to Question 2: What is Monitoring? A sample
standard would be:
1. The collection of information on a
continuous basis, from all agencies serving handicapped students, to make
compliance determination, concerning all State and Federal requirements;
2. The correction of identified
deficiencies within a reasonable period of time; and
3. The
enforcement of legal obligations imposed by State or Federal law.
Step 2: Embark on a systematic effort to
identify areas where policy is operational and measurable, and develop policy
where this is not the case.
Some discussion on
measurable operational policy has already been presented (Note: Much of the
information presented here is the direct result of Martin Gerry’s work on
policy development).6 However, a review
of the importance of these principles might be helpful to other readers.
The development of
operational and measurable special education policies and procedures by States
and LEAs was envisioned by Congress as a central feature in the implementation of
EHA-B. Section 612(2) of the Act establishes State Plans {and local
applications) as the key planning and administrative vehicle for EHA-B. The
state plans “…set forth in detail the policies and procedures the State will
undertake..." to carry out the educational mandates of the statute.
Pursuant to these requirements, States must submit to the Federal government
with its State Plan twenty written policies and procedures governing a wide
range of topics critical to the effective operation of special education
programs.
The critical importance of these policies and procedures in
the actual delivery of services to students is reinforced in the statutory
definition of appropriate publ1c education" that requires that services to
a student must meet the standards of the State. The importance of policy making was underscored in the 1982
decision of the U.S. Supreme Court in Hudson Board of Education v. Rowley4 that
restricts Federal Court intervention where sound educational policy had already
been developed by State and local education authorities.
Despite the seemingly
detailed nature of Federal and State regulations, numerous important questions
concerning application and scope of the legal obligations imposed on LEAs are
either not addressed or not specifically answered. In many policy areas such as placement in the LRE or the degree
of parent involvement required in the decision-making process, the regulations
fail to provide answers to practical operational questions. When the laws and regulations confer rights
on children with handicaps and fail to address these important obligations and
questions, the potential for conflict is significantly increased. In order to alleviate problems caused by
such examples, States should develop policy that meets the following goals.
Content Goal: A policy or procedure should contain a
clear explanation of any undefined or unclear terms and concepts contained in
the underlying legal requirements. It also should set forth a reasonable
solution to questions and practical problems that have arisen (or are likely to
arise) in the day-to-day operations of schools in the application of the
underlying legal requirements.
Communication Goal: A policy or: procedure
should provide "fair notice" to school staff and parents regarding
the behavior expected by the underlying legal requirements and the method that
will be used to measure compliance.
To ensure the operation
of a viable system, State should begin with analyses of existing policy to
ensure that the organization avoids time-consuming disputes over policy
interpretations that can paralyze technical assistance and monitoring
activities.
Step 3: Identify, all existing obligations
for proper methods of administration and ascertain what role each can play in
ensuring compliance.
The use of all possible administrative functions to ensure
compliance avoids the fragmentation previously identified as s problem for
SEAs. Compliance and program improvement activities will only work in the
context of an integrated management information system that uses all available
information to carry out responsibilities that complement each other. These
responsibilities include--
1. Establishment and implementation of policy;
2. Program evaluation;
3. Review and approval of LEA applications;
4. Investigation and resolution of complaint;
5. Dissemination and adoption of promising practices;
6.
Provision of technical assistance;
7.
Correction of identified deficiencies;
8. Dissemination of information on program requirements;
9. Utilization of appropriate methods to administer funds;
and
10. Enforcement of legal obligations.
Focused monitoring is, therefore, a viable approach only if
certain conditions are met in the SEA. Because, the use of focused monitoring
is 90 dependent upon the development of other capacities, e.g., management
information system, states will need to phase in this approach. Continued
discussion and refinement is warranted because the approach is generally less
resource intensive, less intrusive, and provides better protection against
legal vulnerability than other systems.
Step 4: Identify existing and additional
sources of information that are available or could be made available.
Many
sources of LEA information exist in SEAs that are not used to administer
Federal and State requirements. Quite
often State finance data includes teacher-student ratios, class-size data,
resource allocations, child counts, attendance data, and other types of
information. Such data can be used to
identify staff shortages and surpluses as well as trends that may indicate
potential or actual compliance problems.
LRE and placement information also may be analyzed in a variety of ways
to identify problems as was demonstrated recently by OSEP. When OSEP changed the computation of LRE
data from a percentage of handicapped population to a percentage of school-age
population, the entire LRE profile of the nation appeared in different light
and raised additional questions.
Complaints and due
process hearings also can provide information concerning LEA behavior and
practices. From time to time, responses and information gathered during the
resolution of a complaint will reveal a
procedure
in an LEA that merits further investigation. Such a possibility exists in a due
process hearing record when the LEA may set forth a document or testimony that
indicates non-compliance. If the posture of the SEA is to "monitor"
performance across all activities and responsibilities and if the Hearing
Officer does not pursue the matter, the SEA should use the information as a
basis for intervening and correcting the deficiency. A good deal of currently
available information can and should become more relevant and useful.
Step 5: Establish criteria for determining
priority issues for application of the various methods of administration.
After identifying information sources and operational
policy, the issue of appropriate posture must be addressed. SEAs have a variety of methods and vehicles
available. Essentially, the criteria
set forth for operating a monitoring system are relevant here. SEAs should always attempt the least
intrusive and positive method first, such as training or technical
assistance. However, the issue of time
is also important. No entitlement to an
individual child should go unaddressed.
Such problems should be corrected immediately.
The two
basic factors for determining the priorities are the benefits of positive and
productive relationships and the seriousness of the problem identified. If the problem is serious and can be fixed
quickly, the intervention must be immediate.
Other problems may be serious but may take a combination of strategies
and a considerable length of time to resolve.
Some problems may have to be addressed through policy, new procedures,
or the adoption of better practices.
However, individual child protections guaranteed by law cannot be
conditioned by time.
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