UNITED STATES DEPARTMENT OF EDUCATION · above (see §§80.40, 300.402, 300.556 and Sec. 441 of the...

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

Honorable Linda PowellCommissioner of EducationState Department of Education712 Capitol Square Building550 Cedar Street DEC 03 1999St. Paul, Minnesota 55101

Dear Commissioner Powell:

During the week of September 26, 1994, the Office of SpecialEducation Programs (OSEP), United States Department of Education,conducted an on-site review of the Minnesota Department ofEducation's (MDE) implementation of Part B of the Individualswith Disabilities Education Act (Part B). The purpose of thereview was to determine whether MDE is meeting its responsibilityto ensure that its educational programs for children withdisabilities are being administered in a manner consistent withthe requirements of Part B and its implementing regulations, andthe Education Department General Administrative Regulations(EDGAR).

A copy of our report, entitled "Office of Special EducationPrograms Monitoring Report: 1994 Review of the MinnesotaDepartment of Education (Report), is enclosed. A briefdescription of the Report is included below.

The primary purpose of this Report is to address those aspects ofMinnesota's special education system that OSEP reviewed, and foundto be inconsistent with Federal requirements. This report placesa strong emphasis on those requirements most closely associatedwith positive results for students with disabilities. The focusof OSEP's findings includes the provision of a free appropriatepublic education, education in the least restrictive environmentand transition services for students with disabilities who aresixteen years or older. Also, OSEP analyzed MDE's system forensuring compliance, specifically its monitoring and complaintmanagement procedures.

OSEP also reviewed and comments on various initiatives MDE hastaken with regard to improving special education programs inMinnesota. OSEP acknowledges MDE for the steps it is taking toimprove special education programs in several areas, such asservices for students with emotional and behavioral disorders,transition services, and services for children with disabilitieswho are members of racial minority groups. Of particularinterest is MDE's recently completed Post-school Follow-up Studywhich focuses on the post-school outcomes for former studentswith disabilities who have been out of school one to five years.

600 I N D E P E N D E N C E AVE., S.W. WASHINGTON. D.C. 20202-2500

Our mission is to ensure equal access to education and promote educational excellence throughout the Nation

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The Report describes OSEP's findings with respect to the policiesand procedures that MDE has implemented in fulfilling itsgeneral supervisory responsibilities, in accordance with thelegal requirements established by Part B and EDGAR. The findingsare organized into five areas of responsibility, as shown in theTable of Contents. The Report broadly describes the correctiveactions that MDE must take to address OSEP's findings regardingthose five areas of responsibility, and to ensure compliance withthe requirements of Part B through the exercise of its systemsfor general supervision.

We are concerned about the continuing existence of two findingsof deficiency that OSEP first identified in MDE's 1991 compliancereport. First, MDE has not implemented a system to ensure thatdeficiencies it identifies in Minnesota public agencies arecorrected in a timely manner. Although MDE had submittedapprovable procedures for ensuring correction of public agencies'deficiencies, OSEP finds that MDE had not implemented theseprocedures. Second, OSEP finds that the MDE routinely violatesthe Federal timeline for investigating and resolving complaints.This deficiency was first identified in the 1991 compliancereport and continued to exist at the time of OSEP's September1994 on-site visit. I bring these two areas to your attentionbecause of the serious issue they raise with regard to MDE'sability to exercise general supervisory authority to ensure thatall public agencies in the State comply with Part B.

The Report also describes the results that MDE must achievethrough the implementation of corrective actions, taken to addressidentified deficiencies. However, the specific steps,activities, resources needed, methods of verification andtimelines are not specified. In the interest of developing acorrective action plan (CAP) specifically designed to address theissues in Minnesota, OSEP proposes that MDE representativesdiscuss with OSEP, either in a meeting or telephone conference,the areas of noncompliance and the most effective methods forachieving compliance and improving programs for children withdisabilities in the State, and identify and agree on specificcorrective actions. We also will invite Ms. Kathleen Peterson,Chairperson of Minnesota's Special Education Advisory Committee,to participate in that discussion to represent the interests ofthe advisory committee and its constituency. It is our hope thatplacing a greater emphasis on the development and implementationof your CAP will result in a more meaningful and effectivecorrective action process.

MDE's CAP must be developed within 45 calendar days of receipt ofthis Report. If this 45 day period elapses without a CAP beingjointly developed, OSEP will develop the CAP and require that itbe implemented by MDE.

Page 3 - Honorable Linda Powell

The findings included in this Report are final. The preliminaryfindings of OSEP's on-site compliance team were discussed withMr. Erickson and Ms. Schulstad at an exit conference held onSeptember 30, 1994. At this time MDE was invited to provide anyadditional information it wanted OSEP to consider during thedevelopment of findings for the compliance report. We believethe information presented in this Report to be accurate and lookforward to working with MDE in the development of its CAP.

In the event MDE concludes, after consideration of the data inthis Report, that evidence of noncompliance is significantlyinaccurate and that one or more findings is insupportable, MDEmay request reconsideration of the finding. In such a case, MDEmust submit reasons for its reconsideration request and anysupporting documentation within 15 calendar days of receivingthis Report. OSEP will review the request and, where it agreesthat the facts contained in the Report are insufficient tosupport the finding, issue a letter of response informing thatState that the finding has been appropriately revised orwithdrawn. Requests for reconsideration of a finding will notdelay CAP development and implementation timelines for findingsnot part of the reconsideration request.

I want to thank you for the assistance and cooperation providedduring our review. Throughout the course of the monitoringprocess, Mr. Wayne Erickson and his staff were responsive toOSEP's requests for information, and provided access to necessarydocumentation that enabled OSEP staff to acquire an understandingof your various systems to implement Part E and EDGAR. I alsowant to thank Ms. Lorie Schulstad, Acting Team Leader for theOffice of Monitoring and Compliance at the time of OSEP's visit,for her willingness to assist the OSEP team.

Members of OSEP's staff are available to provide technicalassistance during any phase of the development and implementationof your corrective actions. Please let me know if we can be ofassistance. Thank you for your continued efforts toward the goalof improving education programs for children with disabilities inMinnesota.

Sincerely,

Thomas HehirDirectorOffice of Special EducationPrograms

cc: Mr. Wayne Erickson

OFFICE OF SPECIAL EDUCATION PROGRAMSMONITORING REPORT:

1994 REVIEW OFTHE MINNESOTA DEPARTMENT OF EDUCATION'S

IMPLEMENTATION OF PART B OFTHE INDIVIDUALS WITH DISABILITIES EDUCATION ACT

DECEMBER 1994

TABLE OF CONTENTS

INTRODUCTION iii

I. TRANSITION SERVICES 1

II. LEAST RESTRICTIVE ENVIRONMENT 7

III. FREE APPROPRIATE PUBLIC EDUCATION 15

IV. STATE EDUCATIONAL AGENCY MONITORING 20

V. COMPLAINT MANAGEMENT 26

APPENDIX A: PUBLIC AGENCY KEY 30

APPENDIX B: ISSUES RAISED BY PUBLIC THAT DID NOTRESULT IN FINDINGS 31

11

INTRODUCTION

In order to be eligible to receive Fart B funds, MDE is requiredto meet the eligibility requirements of Section 612 of Part B (20U.S.C. §1412(6)), which provides:

The State educational agency shall be responsible forensuring that the requirements of this part are carried outand that each educational program for children withdisabilities within the State, including each programadministered by any other public agency, is under thegeneral supervision of the persons responsible foreducational programs for children with disabilities in theState educational agency and meets the educational standardsof the State educational agency. [See §300.600(a).]

In addition to MDE's general supervisory responsibility, MDE isrequired to carry out certain activities in order to ensure thatpublic agencies carry out their specific responsibilities relatedto the Part B and EDGAR requirements, including those at§§300.340-300.350 (individualized education program (IEP)),§§300.550-300.556 (least restrictive environment (LRE)),§§300.500-300.515 (procedural safeguards), §§300.530-300.534(protection in evaluation procedures), §300.121 (free appropriatepublic education (FAPE)), §300.128 (child find) and §§300.560-300.575 (confidentiality of information). These activities areto:

(1) include in its annual program plan, a copy of each Statestatute, policy, and standard that ensures the specified,requirements are met (see §§300.121-300.154);

(2) require public agencies to establish and implementprocedures, that meet, specific requirements, including thoseidentified above (see §§300.220, 300.341, 300.501, 300.530and 300.550);

(3) monitor to ensure that public agencies implement allapplicable Federal requirements, including those identifiedabove (see §§80.40, 300.402, 300.556 and Sec. 441 of theGeneral Education Provisions Act (GEPA), as amended by theImproving America's Schools Act of 1994 [formerly Sec. 435of GEPA, 20 U.S.C. §1232d(b) (3)]); and

(4) require that applications for Part B funds includeprocedures to ensure that the public agency's procedures areconsistent with the requirements of §§300.340-300.350 (IEP),§§300.550-300.553 (LRE), §300.128 (child find), §§300.560-300.574 (confidentiality of information) and §300.226(parent involvement) (see §§76.770, 76.400 and 300.220-300.240).

iii

Information gathered by OSEP as part of its monitoring reviewdemonstrates that MDE did not, in all instances, establish andexercise its general supervisory authority in a manner thatensures that all public agencies within the State comply with therequirements of Part B and EDGAR. Where findings are based, inpart, on data collected from student records and local staffinterviews, OSEP does not conclude that these findings establishthat similar findings are present in all public agencies inMinnesota. However, because MDE's systems for ensuringcompliance have not been fully effective for the reasons cited inthis Report, OSEP requires MDE to undertake certain correctiveactions, including the corrective actions cited immediatelybelow, to improve its systems for ensuring Statewide compliancewith Part B and EDGAR.

CORRECTIVE ACTION REQUIRED

1. MDE must issue a memorandum to all public agenciesadvising them of OSEP's findings of deficiency. Thememorandum must direct public agencies to review theirrespective policies, and procedures with regard to each of thedeficiencies identified by OSEP in order to determine if theyhave proceeded in a manner similar to those public agenciesfor which OSEP found deficiencies. Should the public agenciesdetermine that their current practice is inconsistent with therequirements identified in MDE's memo, they must immediatelydiscontinue the current practice and implement the correctprocedure. This memo must be submitted to OSEP within thirtydays of the issuance of the this Report. Within 15 days ofOSEP's approval of the memorandum, it must be issued to allpublic agencies for which MDE is responsible.

2*. MDE must issue a memo to those agencies in which OSEPfound deficient practices, as identified in this Report,requiring those public agencies to immediately discontinue thedeficient practice(s) and submit documentation to MDE that thechanges necessary to comply with Part B requirements have beenimplemented. MDE must send to OSEP verification that allcorrective actions have been completed by these publicagencies. This memo must be submitted to OSEP within thirtydays of the issuance of this Report. Within 15 days of OSEP'sapproval of the memorandum, it must be issued to thoseagencies in which OSEP found deficient practices.

Throughout the Report, OSEP makes reference to informationobtained through interviews with teachers, related serviceproviders, and administrators. In all cases, OSEP hasestablished that those persons interviewed were knowledgeableabout and routinely involved in the areas about which they werequestioned. Specifically, OSEP interviewed only those specialeducation teachers responsible for providing services to the

iv

students whose records were reviewed; the related serviceproviders responsible for providing the related servicesdiscussed in the findings; and the administrators responsible forprograms in the schools of the students whose records werereviewed.

OSEP REVIEW PROCESS: OSEP staff began its review of documentsrelated to MDE's special education program in May 1994. Duringthe week of May 31, OSEP met with Wayne Erickson and MDE staffresponsible for administering the State's special educationprograms in order to collect preliminary information aboutMinnesota's special education system and begin makingarrangements for OSEP's on-site visit.

OSEP reviewed MDE's systems for ensuring that all educationprograms for children with disabilities for whom MDE isresponsible comply with the requirements of Part B and EDGAR.During the week of September 26, OSEP conducted its on-sitereview of MDE. The team conducting the review was composed ofGregory Corr, Judith Gregorian, Joan Pine, Barbara Route andDebra Sturdivant. Gregory Corr, OSEP's compliance team leader,spent the week at MDE's office in St. Paul reviewing compliancedocuments and conducting interviews with MDE staff responsiblefor administering the special education program. During theweek, he also had the opportunity to meet with members of theDirectors' Forum, a Statewide association of directors of specialeducation.

Four members of OSEP's staff visited eight local educationalagencies where they reviewed student records and interviewedlocal district, staff about their special education programs.Prior to the visits, OSEP asked each district to completeplacement charts by disability, race and type of placement (e.g.regular class, resource class, etc.). Data collected from thesesite visits are used to support or clarify the OSEP findingsregarding the sufficiency and effectiveness of MDE's systems.

Involvement of parents and advocates: Also during the week ofMay 31, 1994, OSEP conducted public meetings in Moorhead, St.Paul and Duluth. In addition, OSEP participated in a meeting,convened by the PACER Center, with representatives of severaladvocacy organizations in the State. OSEP also invited writtenpublic comment and, over the summer, received comments fromapproximately seventy individuals and organizations.

Immediately before and during the on-site visit, OSEP had severaladditional contacts with parents, advocates and representativesof organizations concerned with special education in Minnesota.Several days prior to the on-site visit, OSEP held a telephoneconference with parents and advocates. During the first eveningof the site visit, OSEP held a focus meeting in one public agencywith parents of youth with disabilities in order to hear their

impressions of special education services provided. Finally,during the week of the on-site visit, OSEP met with Minnesota'sSpecial Education Advisory Committee.

Several themes emerged as State-wide concerns when all of theinformation obtained from parents and advocates was analyzed.Those issues raised by parents and advocates and investigated byOSEP are briefly summarized below.

1. Services for students identified as having emotionalbehavioral disturbance (EBD) were most often cited as inadequate.In particular, frequent use of suspensions and expulsions wasidentified as a concern. Another concern regarding studentsidentified with this disability was the issue of a significantover-representation of African-Americans in this disabilitycategory, particularly in more restrictive educational settings.Many individuals indicated that often students identified ashaving EBD also had other learning problems, such as dyslexia, orattention deficit disorder, and often were not receiving servicesto address their learning needs. Concern was also expressedregarding the placement of students with EBD in alternativeschools and other more restrictive settings.

2. The provision of transition services was also identified asan area of concern. Individuals and advocacy organizationsindicated that there were limited options for students betweenthe ages of 18 and 21, and that there was little or nocoordination among transition service providers.

3. Many individuals and organizations expressed concernsregarding the quality of the IEPs. These concerns included:poor statements of present levels, of performancer inadequategoals and objectives, and failure to implement the IEPs aswritten.

4. Problems regarding due process hearings were raised. Theseincluded concerns that hearing officers were not sufficientlytrained in special education law, that decisions were not issuedwithin 45 days and that local school districts' attorneys werediscourteous to parents.

OSEP carefully examined the issues raised by parents andadvocates. In some instances findings of noncompliance with PartB were made and these can be found in the appropriate sections inthis report. Appendix B provides a discussion of OSEP's reviewof the issues that did not result in findings.

DESCRIPTION OF MDE'S SPECIAL EDUCATION SYSTEM; Minnesota's totalcount for children with disabilities aged birth through 21 was86,340. Their Part B childcount was 83,572, generating

vi

$34,337,829 in Part B funds for appropriation year 1993.1

There are 411 school districts in the State that combine into 105special education administrative units (60 single districts and45 cooperatives) that submit annual applications for Part B fundsto MDE. Their services are delivered in 1604 elementary andsecondary learning sites.

After OSEP's last visit in 1990, MDE moved from a moretraditional organizational pattern by program and responsibilityto "service rings" composed of multidisciplinary teams. As apart of this reorganization, previous positions were abolishedand staff applied for newly-created positions within the neworganizational framework. In 1994, a new commissioner wasappointed by the Governor and MDE returned to an organizationalformat closely resembling the one that existed in 1990.

The Directors of the Office of Special Education and the OfficeMonitoring and Compliance report to different AssistantCommissioners. Located on the eighth floor of the department ofeducation building, the Office of Special Education employs 16professional staff. The responsibilities of these staff includetechnical assistance, interagency collaboration andadministration of Federal and State special education funds andapplications. The Office of Compliance and Monitoring, locatedon the fifth floor, includes a Director, a Team Leader and 11professional staff involved primarily with special educationcompliance.2

INITIATIVES: The focus of OSEP's compliance monitoring is thedetermination of the extent to which a State is providingprograms to children with disabilities in compliance with therequirements of Part B and EDGAR, and the focus of this Report isthe specification of the areas in which MDE's systems have notbeen fully effective in ensuring compliance with thoserequirements. However, OSEP acknowledges MDE for undertaking thefollowing initiatives:

1. In August 1992, MDE initiated a mediation program as a meansfor parents and school districts to resolve disputes outside ofthe context of a due process hearing. In 1993, 19 mediationsessions were held and, 12 sessions had been held during thefirst seven months of 1994.

1 1992-93 school year (Sixteenth Annual Report to Congress.1994) .

2 At the time of OSEP's visit the Director position hadbeen vacant for over a year and the Team Leader position wasfilled on an acting basis.

vii

2. MDE has developed several initiatives to improve transitionservices for youth with disabilities:

• The State Transition Interagency Committee was formed tocoordinate and guide interagency transition efforts;

• The Interagency Office on Transition Services was created toprovide leadership to State agencies and local communities in theimprovement of transition services;

• Approximately 70 Community Transition Interagencies (CTICs)were developed to encourage collaboration among agencies andcommunities at the local level.

3. MDE has targeted services for students withemotional/behavioral disorders as an area of special focus.MDE's initiatives include:

• Studies on related services and staff recruitment andretention, including the identification of factors leading tostaff turnover and the development, implementation and evaluationof a remedial action plan;

• The identification, implementation and support of models forearly identification and intervention that target young childrenand older children with later onset of EBD;

• The creation of a State and local public relations campaign toaddress the stigma of EBD and mental health needs;

• Designing a comprehensive five year plan for better meetingthe educational and mental health needs of youth with EBD; and

• Support for local agencies in developing effective processesfor serving EBD students, policy changes and program reforms;

4. MDE has commissioned three studies of racialdisproportionality within special education:

• "Minority Representation in Special Education in MinnesotaSchool Districts - 1989-90" (Ryan 1992) concludes that African-American and American Indian students in 18 of 19 districtsstudied were significantly overrepresented in special education.

• "The Study of Referral, Assessment, and Placement Practiceswith Minority Students in Some Special Education Programs inMinnesota" (Wilderson, Wood and McKee, undated) was written tocomplement the previous study in order to identify causal factorsof racial disproportionality in special education and suggestideas for alleviating this problem.

• "Referral, Assessment and Placement Practices Used in Northern

viii

Minnesota with Native American Students in Special Education"(Gritzmacher 1993) examines factors relating tooverrepresentation of American Indian students in specialeducation.3

5. Within Minnesota, extensive use is made of paraprofessionalsto provide a broad range of instructional support and studentassistance. Currently there are more paraprofessionals workingin the State than there are certified special education teachers.MDE has undertaken several training initiatives including anannual conference attended by approximately 500 people, most ofwhom are paraprofessionals. In addition, MDE has developed theMinnesota Paraprofessional Resources manual to provide resourcesand information to persons responsible for the training andsupervision of paraprofessionals in the State.

6. MDE has supported positions for Indian Social Worker aidesfor the last fifteen years. These aides function as liaisonsbetween home and school with the goal of enhancing theparticipation of Indian parents in their children's specialeducation programs. Training is also provided for Asian-Pacificand Hispanic Social Work Aides.

3 A 1989-90 MDE report stated that 18.1 percent of AmericanIndian students were placed in programs for students withlearning disabilities, mild mental retardation oremotional/behavior disorders.

ix

I. TRANSITION SERVICES

MDE is required to ensure that all public agencies develop andimplement an IEP for each student with disabilities, beginning nolater than age 16 (and at a younger age, if appropriate) thatcontains a statement of needed transition services, developed inaccordance with the requirements specified in SS300.18, 300.344,300.345, 300.346 and 300.347.

TRANSITION SERVICES AND POSfSCHOOL SUCCESS

The inclusion of a transition plan within the IEPs of students 16years of age and older has been shown to be positively related tothe achievement of postschool outcomes such as employment,postsecondary education and training and independent living. Forinstance, the National Longitudinal Transition Study of SpecialEducation Students (NLTS) has shown that postschool success wasassociated with youth who had a transition plan in high schoolthat specified an outcome, such as employment, as a goal.

The postsecondary performance of former students withdisabilities is significantly worse than that for former studentswho do not have disabilities. The NLTS reports that the rate ofcompetitive employment for youth with disabilities out of schoolfor three to five years was 57 per cent, compared to anemployment rate of 69 per cent for youth in the generalpopulation. The NLTS identified several factors that wereassociated with postschool success in obtaining employment andearning higher wages for youth with disabilities. Theseincluded completing high school, spending more time in regulareducation, and taking vocational education in secondary school.

MINNESOTA'S TRANSITION SERVICES

Minnesota has implemented several initiatives to improvetransition services for students with disabilities. In 1987 theMinnesota legislature mandated transition planning for allMinnesota students with disabilities beginning by grade 9 or age14 (M.S. 120.17 Subd. 3A). A statement of needed transitionservices in the areas of: home living, community participation,recreation/leisure, jobs/job training, and post-secondaryeducation is required in the IEP for each student with adisability.

In 1991 Minnesota received a five-year, State-wide systems changegrant for developing, implementing, and improving transitionservices from the U.S. Department of Education, Office of SpecialEducation and Rehabilitation Services.

In addition, Minnesota initiated a study of postschool outcomesof young adults with disabilities who had been out of school forone to five years. The study found that the employment rate forthe former students at the time of the interview was 80 per cent.The unemployment rate was highest among former students

Page 2 - Minnesota Report

in the emotional/behavioral disorder group (25 per cent) andlowest among former students in the group with moderate/severe disabilities (18 per cent).4

Additional initiatives to improve transition services are notedin the introduction to this Report.

OSEP'S MONITORING PROCEDURES FOR TRANSITION SERVICES

In six of the eight public agencies (A, B, C, D, F, and H) itvisited, OSEP focused on secondary education programs. Thesecondary programs included six high schools, two separateschools for students with emotional and behavioral disorders, andtwo alternative high schools that served both students withdisabilities and students without disabilities.

OSEP reviewed the records of 36 students from these programs.Thirty-two of the students were 16 or older, and four studentswere between ages 14 and 16. The primary categories ofdisabilities for the students included: 28 students who wereidentified as having emotional behavioral disorders, fourstudents who were identified as having mild moderate mentalhandicaps, and four students who were identified as havinglearning disabilities.

OSEP reviewed the records for these studentsr interviewed thestudents' teachers who participated in the IEP meetings, andinterviewed the principals, and administrators, responsible for theprovision of special education services.

FINDINGS: OSEP finds that MDE did not ensure, in all cases, thatpublic agencies implemented policies and procedures which fullyimplemented the requirements of Part B relative to transition.

1. Statement of Needed Transition services

Each public agency is required to ensure that the IEP for eachstudent, beginning no later than age 16 (and at a younger age, ifdetermined appropriate), must include a statement of the neededtransition services as defined in §300.18, including, ifappropriate, a statement of each public agency's and eachparticipating agency's responsibilities or linkages, or both,before the student leaves the school setting. If the IEP teamdetermines that services are not needed in one or more of theareas specified in §300.18(b)(2)(i) through (b)(2)(iii), the IEPmust include a statement to that effect and the basis upon which

4 1994 Minnesota Post-school Follow-up Study, published byInstitute on Community Integration (UAP), University ofMinnesota, May 1994.


the determination was made (§300.346(b)(2)).5

A review of the records of the 32 students who were 16 years orolder indicated that only two IEPs included either a statement ofneeded services in the three areas identified above, or ifdetermined by the IEP that any of the three services were notneeded, included a statement to that effect and the basis uponwhich the determination was made. Further, 16 of the IEPsspecified only one area and did not explain the basis for notaddressing the other two areas. Below is a table that indicatesthe public agencies, the number of IEPs reviewed and the numberof areas addressed either by specifying the needs or byexplaining the basis for not including the area.

Very few of the IEPs reviewed by OSEP included a statement of theneeded transition services in the area of instruction. Onepossible explanation for this frequent omission may be related tothe forms used by the public agencies visited by OSEP. The formswere based on MDE's recommended form, which directed the IEP teamto address the areas of transition consistent with its Staterequirements (i.e., a statement of needed transition services inthe areas of: home living, community participation,recreation/leisure, jobs/job training, and post-secondaryeducation). These requirements do not specify needed transitionactivities in the area of instruction.

Also, MDE's method for determining compliance for thisrequirement is incomplete. Therefore, it was unable to identifyall deficiencies through its monitoring process (see page 20).

Two teachers, one from public agency A and one from public agencyC, stated that transition services are discussed between thestudent and staff from vocational education, separate from theIEP process. Thus, in those two agencies the IEP may not alwaysinclude all the transition services activities.

5 The areas specified in §300.18(b)(2)(i) through(b)(2)(iii) are instruction, community experiences, and thedevelopment of employment and other post-school adult livingobjectives.


Number of IEPs by Public Agencyand the Number of Areas that are Identified as Needed

or Explained as Not Needed

PublicAgency

A

B

C

D

F

H

TOTAL

Numberof IEPs

4

6

5

6

6

5

32

3 Areas

1

1

0

0

0

0

2

2 Areas

3

3

0

0

0

3

9

1 Area

0

1

4

5

4

2

16

0 Areas

0

1

1

1

2

0

5

2. Transition Services Participants - A Representative Of AnyOther Agency

Each public agency is responsible for ensuring that, if thepurpose of the IEP meeting is the consideration of transitionservices, the meeting includes a representative of any otheragency that is likely to be responsible for providing or payingfor transition services (S300.244(c) (ii)). In addition, eachpublic agency is required to ensure that the IEP for eachstudent, beginning no later than age 16 (and at a younger age, ifdetermined appropriate), must include a statement of the neededtransition services as defined in §300.18, including, ifappropriate, a statement of each public agency's and eachparticipating agency's responsibilities or linkages, or both,before the student leaves the school setting (§300.346(b)(1)).

A review of the records of the 32 students who were 16 years orolder indicated that in only one case did a representative fromanother agency attend an IEP meeting at the invitation of thepublic agency (public agency C). No statement ofresponsibilities or linkages were specified for that agency onthe IEP.

Part B only requires that the IEP meeting include arepresentative of any other agency if that agency is likely to beresponsible for providing or paying for transition services.However, a teacher from public agency D reported to OSEP thatrepresentatives from other agencies are not invited to IEPmeetings for her students who had serious emotional disturbances.The administrator responsible for the provision of specialeducation in that public agency stated that representatives fromother agencies are invited, if appropriate, to IEP meetings, but


that these representatives are not invited as often, or asroutinely, for students with emotional behavior disorders, orlearning disabilities, as they are for students with mentalretardation. The administrator in public agency F also statedthat the transition requirements, including invitingrepresentatives from other agencies, were addressed morethoroughly for students with mental retardation. Finally, inpublic agency H a teacher reported and an administrator confirmedthat when representatives from other agencies are invited to IEPmeetings, their responsibilities or linkages for transitionservices are not specified on IEPs.

3. Notice Requirements

Each public agency is required to ensure that, if a purpose ofthe meeting is the consideration of transition services for astudent, the notice must indicate this purpose, indicate that theagency will invite the student, and identify any other agencythat will be invited to send a representative. (§300.345(b)(2)).

OSEP found that the meeting notice used by the public agencies itvisited did not specify that a purpose of the meeting is theconsideration of transition services, when those notices were formeetings for students who were 16 years or older.

Administrators in each agency OSEP visited confirmed that thenotice did not specify the consideration of transition services.The public agencies were using the MDE's, recommended notice.


FINDING/FEDERALREQUIREMENT

EXPECTED OUTCOME/ACTION REQUIRED ACTIVITIES TO HEET OUTCOMEREQUIREMENT

RESOURCES TIMELINEFORSUBMISSION

Transition

1. §1300.18,300.346(b)(Statement oftransition services- required IEPcontent)

Beginning no later than age 16 (and at a younger age, ifdetermined appropriate), public agencies must include astatement of the needed transition services as defined in§300.18 If the IEP team determines that services are notneeded in one or more of the areas specified in§300.18(b)(2)(i) through (b)(2)(iii). the JEP must include astatement to that effect and the basis upon which thedetermination was made (§300.346(b)(2)).

2. §300.344(c)(Meetingparticipants)

IEP meetings for students aged 16 and older (and at a youngerage, if determined appropriate) must include a representativeof any other agency that is lively to be responsible forproviding or paying for transition services(§300.344(c)(ii)). The statement of the needed transitionservices must include, if appropriate, a statement of eachpublic agency's and each participating agency'sresponsibilities or linkages, or both, before the studentleaves the school setting (§300.346(b)(1)),

3. §300.345(Content of notice)

The notice of IEP meetings to consider the provision oftransition services must specify that such consideration is apurpose of the meeting.


II. PLACEMENT IN LEAST RESTRICTIVE ENVIRONMENT

MDE is required to ensure that public agencies establish andimplement procedures, which meet the requirements of §§300.550-300.553, regarding the placement of students with disabilities inthe least restrictive environment (LRE). §300.550(a). Sections300.554, 300.555 and 300.556 set forth requirements which must bemet by MDE.

MDE is responsible under §300.550(a) to ensure that publicagencies ensure that:

(1) To the maximum extent appropriate, children withdisabilities, including children in public or privateinstitutions or other care facilities, are educated with childrenwho do not have disabilities (§300.550(b)(1));

(2) Special classes, separate schooling or other removal ofchildren with disabilities from the regular educationalenvironment occurs only when the nature or severity of thedisability is such that education in regular classes with the useof supplementary aids and services cannot be achievedsatisfactorily (§300.550(b)(2));

(3) The various alternative placements included at§300.551, are available to meet the needs of children withdisabilities for special education and related services, andthose alternative placements are available to the extentnecessary to implement each child's IEP (§§300.551 and300.552(b)); and

4) Each child with a disability participates with childrenwho do not have disabilities in nonacademic and extracurricularservices and activities to the maximum extent appropriate to theneeds of that child (300.553).

In order to meet the requirements of §300.550(b)(2), a publicagency must, prior to making any decision to remove the childfrom the regular education environment, determine whether thechild's education can be achieved satisfactorily in the regulareducation environment with the provision of supplementaryservices (such as resource room or itinerant instruction) and/orthe use of supplementary aids and services. The selection of theappropriate supplementary aids and services must be determined bythe IEP committee during the development of the IEP and must bebased on the individual needs of the particular student. Adescription of the supplementary aids and services the child isto receive must be included in the IEP. The supplementary aidsand services must be a component of the specially designedinstruction crafted by the IEP committee to meet the child'sunique educational needs. Supplementary aids and services mayinclude, but are not limited to, curricular adaptations and


modifications such as taped textbooks and parallel instruction,modifications to the educational environment, such aspreferential seating and the use of study carrels, and/ormodifications to the service delivery system, such as the use ofan additional instructor or peer tutors.

In determining whether a child with disabilities can be educatedsatisfactorily in a regular class with supplementary aids andservices several factors must be considered, including: (l)whether reasonable efforts have been made to accommodate thechild in the regular classroom; (2) the educational benefitsavailable to the child in a regular class, with appropriatesupplementary aids and services, as compared to the benefitsprovided in a special education class; and (3) the possiblenegative effects of the inclusion of a child on the education ofthe other students in the class. If, after considering thesefactors it is determined that the child should be removed fromthe regular classroom and provided education in a segregated,special education classroom or school, the agency still remainsresponsible to include the child in school programs withnondisabled children to the maximum extent appropriate.

Placement Trends in Minnesota

The data that MDE reported to OSEP for the 1989-90, 1990-91 and1991-92 school years showed a sharp reduction in separate classplacements and a concomitant increase in resource placements.Placement in regular classroom was stable over those three schoolyears at approximately eleven percent of the population ofstudents with disabilities. In an interview with OSEP, the SEADirector explained that the placement data MDE sent to OSEP forthose three years did not conform to Federal definitions,resulting in an underreporting of the numbers of students withdisabilities educated in the regular classroom.

Beginning with the 1992-93 data (the most recent data availableto OSEP), MDE began reporting its placement statistics inaccordance with the Federal reporting instructions.6 As is shownbelow in Table II, this resulted in far greater numbers ofstudents reported as placed in regular class and a correspondingdecline in the numbers reported as placed in resource room.

6 States are instructed to report their data in thefollowing categories: Regular class (removed from regular classless than 20% of school day), resource room (removed more than20% and less than 60% of school day), and separate class (removedmore than 60% of the school day).


TABLE IIPlacement Trends in Minnesota

Regular class

Resource room

Separate class

Separateschool7

1989-90

11.14

65.60

19.27

3.62

1990-91

11.09

75.76

09.13

3.62

1991-92

11.63

75.49

08.42

04.28

1992-93

49.46

31.99

11.36

6.81

Previous Monitoring

In its June 14, 1991 monitoring report to MDE, OSEP found that,(1) some students with disabilities were removed from the regulareducation environment without a determination of whether thestudent's education could be achieved satisfactorily in regularclasses, with the use of supplementary aids and services, and(2) some public agencies did not make placement options availableto the extent necessary to implement the IEP for students withemotional/behavioral disabilities (EBD) as required by§§300.551(a) and 300.552(b). MDE's corrective actionsand documentation, including the training of teachers andadministrators regarding their responsibilities in the areascited in the monitoring report, were approved by OSEP in January1992.

CURRENT FINDINGS: OSEP finds that MDE did not ensure thatstudents with disabilities have available as an initial option,placement in the regular education classroom, with the use ofsupplementary aids and services' such as special educationconsultation with the regular education teacher, collaborativeteaching or itinerant instruction. Therefore, the full continuumof alternative placements is not available to meet the needs ofchildren with disabilities for special education and relatedservices. In addition, OSEP found that some public agencies inMinnesota did not make individual determinations of the maximumextent to which it was appropriate, for each child with adisability to be educated with children who do not havedisabilities, or to participate with them in nonacademic andextra-curricular services and activities.

These findings are based upon the review of placement data

7 For purposes of this Report, OSEP combined four placementcategories: public separate facility, private separate facility,public residential facility and private residential facility. InTable II these are reported under the category "separate school."


provided by all of the public agencies visited by OSEP, thereview of student records and interviews with responsibleadministrators and teachers who participated in meetings in whichplacement decisions were made.

OSEP learned through interviews with administrators and teachers,in districts visited by OSEP, that before students are evaluatedto determine eligibility for special education, regular educationinterventions are tried in order to meet student needs in thecurrent regular education placement. If these interventions donot result in a student's ability to achieve successfully in theregular education classroom, the student is referred for anevaluation to determine if there is a disability necessitatingthe provision of special education and related services. If,based on the evaluation results, the student meets the criteriafor placement in special education, the student is removed fromthe regular classroom to receive special education services. Nofurther attempts are made to consider the new informationobtained about the student from the evaluation results, in orderto identify and implement special education interventions thatwould allow the student to remain in the regular classroomplacement.

Although MDE had identified deficiencies with regard to LRErequirements, it had not ensured timely correction ofdeficiencies (see page 23).

A. Removal from tie Regular Education Environment and Continuumof Alternative Placements to Implement IEP [§§300.550(b)(2) and300.552(b)]

Two administrators responsible for special education programs inAgency A reported to OSEP in interviews that special educationinstruction in regular classes (i.e., special educationinstruction pursuant to an IEP without removal to a specialeducation setting) is not available as a continuum placementoption for all students with disabilities. Specifically, theseadministrators stated that reintegrating students from theseparate school into the regular high school was difficult forseveral reasons. First, unless students with EBD comply with thesame rules of conduct applicable to students without disabilitiesthey will not be admitted to the regular high school. Similarly,the inflexibility of the regular high school schedule, composedof 85 minute periods, makes it difficult to place students withemotional and behavior disorders in the regular classroom. Oneadministrator stated that the necessary supports are notavailable to maintain EBD students from the separate school inthe high school. According to this administrator, students mustachieve a certain level of performance before any considerationof reintegration into the regular education environment is made.

Administrators and teachers from agencies B and D and G, stated


that once a child is determined to have a disability and is madeeligible for special education services, regular class placementwith the use of supplementary aids and services is not consideredas an initial placement option by the placement team for somestudents with disabilities in the district. An administrator inAgency G stated that regular class placement with supplementaryaids and services is not considered as a first option forstudents with disabilities but rather, as an option forreintegrating students into less restrictive settings.

Two teachers in agency C stated that the agency is moving towardmaintaining students in the regular education environment withthe necessary supplementary aids and services, but that thisoption is not available to all students who would benefit fromsuch a practice because there is insufficient collaborationbetween special education and regular education staff. Bothteachers stated that they had students with disabilities whocould be successfully educated in regular classrooms given thenecessary supports, but that there were barriers to integration,such as the unwillingness of regular education teachers toimplement the accommodations recommended by the IEP team.Additionally, they said that regular education classes are nearcapacity, and that there is no room in them for special educationstudents for whom placement in regular classrooms has becomeappropriate.

For some students with disabilities being served in regulareducation classes, special education services are provided onlyas a "pull-out" service. These students do not have the optionof remaining in the regular education classroom without removaland receiving special education services. The teachers furtherdescribed the school district's process for providing specialeducation services as an "all or nothing" approach.

An administrator and four teachers from Agency G, stated that allspecial education services are provided outside the regulareducation classroom. Speech therapy is the only specialeducation service that can be provided in the regular educationclass as well as on a pull-out basis. One teacher stated thatall the students in the self-contained class could be served inthe regular education class if supplementary aids and servicessuch as team teaching, itinerant instruction and collaborationwere available. However, the administrator explained that thoseinterventions are too expensive. The administrator also statedthat service delivery models and related service schedules arebarriers to including students in regular education. Studentswho are placed in "center-based" models must receive all theiracademic programming in special education classrooms.8

8 "Center-based" models are self-contained classes locatedin a regular education building.


Administrators from public agencies D, E, F and H confirmed thatthe placement data reported in charts which OSEP asked eachdistrict to complete, indicated that in one district there werevery few students with mild to moderate mental retardation inregular classes with supplementary aids and services, and in theother three districts there were no students with mild tomoderate mental retardation in regular classes with supplementaryaids and services.

Several administrators explained that there is a strong beliefamong staff in their districts that students with mentalretardation should be in separate classes. Several otheradministrators were surprised that the data for students withmild to moderate mental retardation indicated that so fewstudents were in regular classes with supplementary aids andservices given the general progress their districts have made inmoving students from separate classes to less restrictivesettings. Moreover, the data suggest that in regards to studentswith mild to moderate mental retardation, individualdeterminations are not made regarding the placement of studentswith those disabilities in the various alternative placementsincluded at§300.551.

B. Educated with Nondisabled Peers and Nonacademic andExtracurricular Activities [§§300.550(b)(l) and 300.553]

Several administrators and a teacher from Agency A stated thatthere is no consideration of the maximum extent to which studentsat the separate school can participate in regular educationclasses or extra-curricular or nonacademic programs with theirnondisabled peers. For students with EBD who are placed at aseparate center in the district, participation is considered onlyif the student expresses an interest in returning to the regulareducation program and the teacher advocates for regular schoolplacement at the IEP meeting. A teacher at the separate centerstated that there are no students who currently participate inany regular education programming.

Two administrators and a teacher in Agency B stated that thereare no opportunities for integration of students who are in Level5 programming9. One administrator stated that if "Level 5"students are ready for mainstreaming, they are placed in asetting where integration is possible.

One Level 5 program, which focuses on mental health needs, serves20 students with EBD in a regular elementary school. It is anintensive short-term program that does not provide any

9 A Level 5 program is a segregated, self-contained class orseparate school program which offers little to no opportunitiesfor mainstreaming with nondisabled students.


opportunities for students to participate in regular educationclasses or extra-curricular or nonacademic programs with theirnondisabled peers. IEPs indicate that there are opportunitiesfor integration during lunch, recess, and assemblies. However,while these opportunities are made available to the class, nodeterminations are made on an individual basis regarding plannedopportunities for meaningful participation. One teacher statedthat, "there is no mainstreaming at all. Students eat breakfastand lunch together with staff."

In an interview with OSEP, two administrators and a teacher inAgency C stated that the IEP team did not make individualizeddeterminations regarding the maximum extent to which it isappropriate for each student placed in the separate school to beeducated with students who do not have disabilities orparticipate with them in nonacademic and extra-curricularactivities. None of these students participate in nonacademicactivities with their nondisabled peers during the school day,even though, as the teacher reported to OSEP, some would benefit.With the exception of physical education, integration withnondisabled peers for academics is not considered for students atthe separate school. One administrator stated, "we need to becloser to [the separate school] than we are. We are trying toget high schools ready for reintegrating the students [served atthe separate school]."



EXPECTED OUTCOME/ACTION REQUIRED ACTIVITIES TO MEET OUTCOMEREQUIREMENT


A. Removal from theRegular EducationEnvironment andContinuum ofAlternativePlacements toImplement IEP(§§300.550(b)(2) and300.552(b)]

Placement in the regular education classroom with the use ofsupplementary aids and services must be a placement optionfor students initially placed into special education as wellas for those students who had previously been removed fromthe regular education environment.

B. Educated withNondisabled Peersand Nonacademic andExtracurricularActivities[§§300.550(b)(1) and300.553]

There must be consideration of the maximum extent to whichstudents with disabilities can participate in regulareducation classes or extra-curricular or nonacademic programwith their nondisabled peers. A special focus of thisactivity must include consideration of such participation forthose students who have been removed from the regulareducation environment to separate classes or separateschools.


III. FREE APPROPRIATE PUBLIC EDUCATION

MDE is responsible for ensuring that a free appropriate publiceducation (FAPE) is available to all children with disabilitieswithin the State, and must ensure that each student with adisability receives the related services that are required toassist the child to benefit from special education as required by§§300.300 and 300.16(a).

The provision of appropriate special education and relatedservices is essential to the achievement of positivepostsecondary results for students with disabilities. Althoughmany students with serious emotional disturbance (SED) experienceemotional, social and educational problems, FAPE may not beprovided due to a lack of related services in the public schoolsand insufficient interagency collaboration between LEAs andmental health agencies.

The National Longitudinal Transition Study shows that studentswith SED have poor school performance and results including lowergrades, a higher rate of course failure, and a dropout ratehigher than that for other students with disabilities.10 Theyalso have poor post-secondary outcomes. When compared with thegeneral population, students with SED have difficulty maintainingjobs, lower rates of employment and significantly higher arrestrecords 11. Students with SED also have the lowest enrollmentsin college and vocational schools of all students withdisabilities and, as a group, low scores on measures of

independence.12 OSEP received numerous comments about special education for SEDstudents when it conducted public meetings in Minnesota. Inaddition, OSEP had made findings regarding lack of availabilityof services for SED students in the 1991 monitoring report.Therefore, OSEP targeted the files of students with SED todetermine whether they are receiving necessary special educationand related services.

10 Approximately 50 percent of students with SED dropoutof school.

11 By two years after high school, 37 percent of studentswith SED have been arrested. By three to five years, the numbersincrease to 58 percent. These figures represent an arrest record2 and a half times that of youth in the general population(Wagner, 1992).

12 About 17 percent of youth with SED go on to college orvocational schools within two years after leaving high school,compared with 53 percent of students without disabilities and 14percent of all students with disabilities (Marder, 1992).


State-wide Data

As noted above in the Transition section of this Report, MDEfunded a study of postschool outcomes of young adults withdisabilities in Minnesota who had been out of school for one tofive years to, among other things, obtain a measure of howstudents with disabilities who received special education in highschool were managing as young adults. The findings from thisstudy showed that a third of all students that dropped out ofhigh school were former students with emotional/behaviordisorders (EBD). The study also corroborates the finding in theNational Longitudinal Transition Study that young adults with EBDwere most likely to have experienced some period of unemploymentcompared with individuals in other disability groups.

Previous Finding

When OSEP monitored MDE in 1990, it found that MDE did not meetits general responsibility under §300.300 to ensure that specialeducation and related services contained in IEPs of children withdisabilities were designed to meet their unique needs. When OSEPreviewed the records of one agency's students with EBD andconducted interviews about those records, it found that allstudents were all receiving the same amount of counseling a weekand that needs for counseling had not been individuallydetermined. In another public agency, a building administratorstated in an interview with OSEP that the public agency did notprovide counseling services and that when students required suchservices to benefit from special education, they were referred tothe community mental health agency. The administrator explainedthat the public agency does not include counseling services inthe IEP because the parents' insurance will pay for it.

On May 4, 1993, MDE completed all of its corrective actions toensure that all public agencies make available special educationand related services contained in IEPs to meet the unique needsof children with disabilities, and that related services are madeavailable to assist all students with disabilities to benefitfrom special education. MDE issued a memo to all public agenciesinforming them that these requirements would be the focus ofmonitoring activities in the future, and that to the extent thattheir current practice did not meet these requirements, they mustimmediately discontinue their current practices and implement thecorrect procedures. MDE also developed training materials andprovided training to inform and train teachers and administratorsin their responsibilities.

FINDING:Based on the facts provided below, OSEP finds that MDEdid not consistently meet its responsibility under §300.300 toensure that each student with a disability receives the relatedservices that are required to assist the child to benefit fromspecial education as required by §§300.300 and 300.16(a).


Specifically, OSEP found that counseling services were not madeavailable to students with EBD.

Under Part B, it is permissible for LEAs to work collaborativelywith other agencies, such as State or county mental healthagencies, to ensure that needed related services are provided.However, LEAs must ensure that the needed services are providedat no cost to the parent or child and cannot transfer to theparent responsibility for locating or funding such services.

As discussed on Section IV on page 21 of this Report, MDE'sprocedures for identifying deficiencies regarding the provisionof related services were not fully effective.

Agency E In interviews with OSEP, a teacher and twoadministrators involved in the development of IEPs stated thatpsychological counseling was not considered an option forinclusion in the IEP, for any student with a disability. Two ofthe students in the teacher's class were receiving counselingservices through the county mental health agency; however, theparents of these students made the arrangement with the mentalhealth agency for provision of the service and paid for theservice. The teacher stated that all seven students in the classneeded psychological counseling services in order to benefit fromtheir special education programs, but because their parents couldnot pay for the services, some students were not receiving them.The teacher told OSEP that prior approval from the schooldistrict would have to be obtained before psychologicalcounseling could be included as a related service in a child'sIEP.

Administrators confirmed that psychological counseling servicesare not provided through an IEP. They reported to OSEP thatparents are responsible for obtaining needed psychologicalcounseling services for their children even where services arenecessary to benefit from special education. The school assistsby referring them to the local mental health agency, but will notprovide counseling services as a part of special education andrelated services.

Agency C OSEP interviewed three teachers and two administratorswho stated that schools do not provide psychological counselingeven when necessary for students to benefit from specialeducation. Rather, schools refer the parents of students whoneed these services to the local mental health center. Oneadministrator stated that the IEP team would not identifycounseling as a need because the school does not provide it.Another administrator stated that a cooperative agreement betweenthe local mental health agency and the separate school wasinitiated to address the need, but it was never completed. Theadministrator further stated that there were students at theseparate school who needed counseling to benefit from special


education. Although the district had assigned a part-timecounselor, the counselor could not meet all the identified needsof students in the school. The administrator was told thatadditional counseling services could not be obtained due toinsufficient funds.

A psychologist confirmed that the school does not providepsychological counseling. According to the psychologist,psychological counseling is a mental health service, not aneducational service and, therefore, no goals and objectives arewritten in the IEP when psychological counseling is identified asa need by the IEP team. The psychologist also confirmed thatparents are responsible for obtaining the needed services.

An administrator knowledgeable about the availability of servicesalso confirmed that the agency does not provide individualizedpsychological counseling. The administrator explained that theagency only makes available the services of school-based guidancecounselors who work with groups of students in the classroom. Inaddition, school psychologists may work with teachers on aconsultative basis, and provide direct services to students inthe form of assessments, including student interviews andobservations of the student in his or her environment and datagathering of information about the student from parents andothers knowledgeable about the student. The administrator statedthat although the agency will not provide counseling services, ithas established linkages with mental health providers to assistparents in finding and receiving services.

Agency F OSEP reviewed two student records and interviewed thestudents' teacher who stated that those students neededcounseling services to benefit from their educational programsbut that those services were not available. An administratorknowledgeable about the availability of services confirmed that,although currently available, these services were unavailable atthe time the IEPs were developed for those two students, and thatno subsequent provisions had been made to provide the services tothese two students.





MDE is responsible forensuring that FAPE isavailable to allchildren withdisabilities within theState, and must ensurethat each student witha disability receivesthe related servicesthat are required toassist the child tobenefit from specialeducation as requiredby §§300.300 and300.16(a).

Where the provision of counseling services is necessaryfor a student with a disability to benefit from specialeducation, such services must be provided as a part ofthe student's FAPE.


IV. STATE EDUCATIONAL AGENCY MONITORING

A. MDE is responsible for the adoption and use of effectivemethods to monitor public agencies responsible for carryingout special education programs. (Sec. 441 of the GeneralEducation Provisions Act (GEPA), as amended by the ImprovingAmerica's Schools Act of 1994 [formerly Sec. 435 of GEPA, 20U.S.C. §1232d(b)(3)]). A State shall keep records to showits compliance with program requirements. $76.731.

Background In its 1991 monitoring report to MDE, OSEP found thatMDE had no, or incomplete, methods for determining compliancewith certain Federal requirements. MDE's Office of Monitoringand Compliance (OMC) subsequently revised its monitoringprocedures which were approved by OSEP in 1992.

MDE's six year monitoring cycle, which was in effect duringOSEP's 1990 review of MDE as well as during the 1994 review, isdescribed below in Table X-A.

TABLE X-A

Year inCycle

One

Two

Three

Four

Five

Six

Description of Activity

District conducts self Study.

MDE conducts comprehensive compliance review.District submits corrective action plan.

District implements corrective action plan.

District conducts self study to ensure that allcorrective action have been effective.

MDE conducts follow-up review to verify completion ofcorrective actions.

District submits and implements corrective actionplan for any remaining areas of noncompliance.

FINDING: MDE has an inadequate standard for determiningcompliance with the requirement that IEPs for students 16 yearsand older include a statement of need transition services. Item4.2.2 of MDE's Compliance Monitoring Manual requires that the IEPaddress pupil's needs for transition services to "postsecondaryeducation and training, employment, and community living."However, MDE's procedures do not address the Federal requirementthat the statement of transition services include "instruction,community experiences, and the development of employment and


other post-school adult living objections" (§300.18(b)(2)).l3

As discussed in Section I of this Report, OSEP found deficiencieswith regard to transition statements in every public agency itvisited. However, MDE had not identified deficiencies in itsmost recent reports to those agencies.

FINDING: Although MDE has methods for determining that studentswith disabilities are provided with the related services theyneed to receive FAPE, there were three cases where these methodsdid not result in the identification of deficiencies. When OSEPreviewed student records and conducted interviews at publicagencies C, E and F, it found that the public agencies had notprovided students with EBD counseling needed to benefit fromtheir special education programs.

FINDING: MDE's monitoring system does not include a method toensure that each public agency responsible for carrying outspecial education programs operates in compliance with Federalrequirements.

Correctional Facilities In are interview with OSEP, MDE staffresponsible for compliance monitoring stated that correctionalfacilities providing special education services have not beenroutinely monitored. There are ten correctional facilities inMinnesota which have inmate populations that include school-ageyouth and operate special education programs. One facility whichserves 130 juveniles was monitored in 1991. Two other facilitieswere visited by MDE in Spring 1994, but no monitoring reports hadbeen issued to these facilities at the time of OSEP's visit. MDEstaff did not know when the other seven facilities had beenmonitored last.

Charter Schools At the time of OSEP's visit, MDE had notconducted compliance monitoring visits to any of the 15 charterschools that have been approved by the Minnesota State Board ofEducation. Charter schools, which have been in existence since1991, are independent public programs sponsored by local schooldistricts. Charter schools offer unique programs based onlearner outcomes and serve children with and withoutdisabilities. MDE staff told OSEP that OMC has scheduled acompliance review of one of the charter schools for January 1995.

B. MDE is responsible for the adoption and use of propermethods for the correction of deficiencies in program

13 When OSEP monitored MDE in December 1990 it did notidentify deficiencies with regard to the transition requirementssince these requirements had only recently gone into effect andtherefore SEAs had not had sufficient time to fully implement therequirements.


operations that are identified through monitoring. (Sec.441 of the General Education Provisions Act (GEPA), asamended by the improving America's Schools Act of 1994[formerly Sec. 435 of GEPA, 20 U.S.C. §1232d(b)(3)]).

Background In its 1991 report to MDE, OSEP found that MDE hadnot been effective in ensuring that deficiencies MDE identifiedthrough compliance monitoring had been corrected. Specifically,OSEP found that deficiencies first identified duringcomprehensive monitoring visits had not been corrected by thetime MDE returned for follow-up visits three years later. Insuch cases where MDE determined that deficiencies had not beencorrected, MDE required the affected public agency to submit asecond corrective action plan. However, it was not MDE'sprocedure to verify implementation until the next comprehensivemonitoring review.

OSEP required MDE to revise its monitoring procedures to includethe steps it would take when previously identified deficienciescontinue to exist. The Minnesota Special Education MonitoringModel, submitted by MDE as a corrective action, describes "TheProcess of Imposing Sanctions." In Steps II and III, belowinclude the actions MDE can take where previously identifieddeficiencies continue to exist:

Step I An area of noncompliance exists. A CorrectionAction Plan is required of the district. TheDepartment staff will assist the district inidentifying possible sources of technical assistance.Staff may also suggest the use of Comprehensive Systemof Personal Development (CSPD) monies to support theneeded technical assistance.

Step II An area of noncompliance is identified asecond time. Department staff will identify andmandate technical assistance. They will mandate theuse of CSPD monies. This technical assistance and useof monies will be supervised by the monitoring staff.Following this assistance in Correction Action Plan(CAP) implementation, the district will again bemonitored for compliance. Approval of LEA applicationfor funding may be contingent on correction of thecitations.

Step III An area of noncompliance continues to existfollowing the implementation of Steps I and II. Thedistrict's application for funding will not beapproved. The Chairperson of the local school boardwill be notified by letter from the Commissioner ofEducation that state aid will be withheld untilcorrections are completed.


FINDING: OSEP has concluded that MDE did not carry out itsrevised monitoring procedures so as to ensure that identifieddeficiencies were corrected in a timely manner. OSEP reviewedthe follow-up reports for three agencies and noted that some ofthe previously identified deficiencies had not been corrected.In none of these three instances had MDE implemented itsprocedures for addressing the existence of continuingdeficiencies. In an interview with OSEP, an MDE staff memberresponsible for administering the compliance unit stated that itwas not MDE's policy to confirm the correction of deficienciesidentified during follow-up visits until the next full compliancereview, three years after the follow-up visit.

Agency D For instance, MDE conducted a Follow-up visit to AgencyD in 1994, three years after MDE had conducted a Full Compliancereview and identified a number of deficiencies.14 Although somedeficiencies had been eliminated, several continued to exist:

(1) Ten of the 25 IEPs reviewed contained insufficient annualgoals;(2) The majority of IEPs reviewed did not contained schedulesfor evaluating whether short term objectives had beenachieved;(3) The majority of records did not justify why studentsneeded to be removed from regular education environment.15

When OSEP reviewed IEPs at Agency D, it found deficienciesregarding annual goals, short, term objectives, and criteria,procedures and schedules for evaluating accomplishment of thoseobjectives.

Aaencv G MDE conducted a Full Compliance review of Agency G in1989 and a Follow-up visit in 1992. The follow-up report statesthat about two-thirds of the fifty records reviewed containeddeficient annual goals and about half the records did not justifythe removal of students with disabilities from the regulareducation environment. Despite the continued areas ofnoncompliance, MDE's follow-up report does not reflect MDE's newprocedures to be used where continued deficiencies exist.

OSEP interviewed a consultant who had been the chairperson for

14 Also, OSEP had visited this district as a part of the1990 monitoring review. OSEP also found IEPs that had deficientannual goals (10 of 14) and did not include schedules forevaluating short term objectives (5/14).

15 This information was included in a draft report datedSeptember 13, 1994. The final report was not available at thetime of OSEP's visit.


the Full Compliance review and was also familiar with the Follow-up visit. The consultant confirmed that the corrective actionsfor the follow-up visit were similar to those required for thefull compliance visit three years earlier. The correctiveactions will not be verified until the next full compliancereview.

Agency H Agency H, a ten district cooperative, was the subjectof a follow-up review in September 1992. The purpose of thevisit was to determine the level of implementation of theagency's December 1990 CAP and a March 1991 CAP submitted toaddress deficiencies identified by OSEP when it visited Agency Has a part of its last review of MDE. Although MDE reportedprogress in many areas, some continuing compliance issues wereidentified in the follow-up visit. Also, the deficienciesidentified by OSEP had not been completely addressed.

For instance, in 12 of 38 cases, meetings to develop IEPs did notinclude all of the required participants. Some IEPs haddeficient present level of performance statements and many annualgoal statements were insufficient. In an interview with OSEP,the chairperson for MDE's follow-up visit" confirmed that therewere systemic patterns of noncompliance regarding the requiredcontents of IEPs. In addition, 12 of 38 student records hadinsufficient LRE statements. MDE's follow-up report noted that25 percent of children with disabilities within Agency H areplaced out of district. This was particularly true for studentswith mental retardation, serious emotional disturbance and. lowincidence disabilities. MDE states in its report that Agency Hneeds to ensure that its component districts develop and utilizemore placement options in home districts.

MDE's follow-up report requires that the CAF describe thespecifics of the inservice and technical assistance that theagency will provide to address the continuing deficiencies. Alsoa self-evaluation component is included as a part of the CAP.MDE did not, however, identify and mandate technical assistance;nor did it mandate the use of CSPD monies as required in itsprocedures for addressing the existence of continuingdeficiencies.

Other Agencies MDE had also found LRE deficiencies in follow-upvisits to public agencies A and B. Even though all correctivesactions were to have been implemented by the September 1994, OSEPfound continuing deficiencies when it reviewed records andconducted interviews at those agencies.





A. MDE is responsiblefor the adoption anduse of effectivemethods to monitorpublic agenciesresponsible forcarrying out specialeducation programs. 20U.S.C. §1232d(b)(3)(A).A State shall keeprecords to show itscompliance with programrequirements.

MDE must revise its method of determining compliance withthe requirement that statements of transition servicesinclude "instruction, community experiences, and thedevelopment of employment and other post-school adultliving objections."

MDE must demonstrate that itsrevised procedure iseffective in identifyinginstances of noncompliancewith this requirement.

MDE must determine why its method for ensuring thatnecessary related services, including counselingservices, are provided is ineffective and submitrevisions that will result in the identification andcorrection of future deficiencies.

MDE must demonstrate that it has an effective method foridentifying and correcting deficiencies in all publicagencies that provide special education in Minnesota,including all correctional facilities and charter Schoolsthat provide special education and related services tochildren and youth with disabilities.

B. NDE is responsiblefor the adaption anduse of proper methodsfor the correction ofdeficiencies in programoperations that areidentified throughmonitoring. 20 U.S.C.S1232d(b)(3)(E).

MDE must demonstrate that it has |n place and hasimplemented procedures to ensure that all identifieddeficiencies are corrected in a timely manner. This mustinclude a method to verify that public agencies havecompleted all corrective actions within the timelinesspecified by MDE. MDE must also demonstrate that it hasdeveloped and implemented an effective Method forensuring correction of previously identifieddeficiencies.


V. COMPLAINT MANAGEMENT

Within 60 calendars after a complaint is filed, each SEA shallinvestigate and resolve any complaint that a public agency hasviolated a requirement of Part B and issue a written decisionto the complainant that addresses each allegation. The 60 daytimeline may be extended only if exceptional circumstanceexist with respect to a particular complaint. §$300.660 -300.662.

Background In its June 14, 1991 final compliance report to MDE,OSEP found that MDE did not ensure that complaints wereinvestigated and resolved within 60 days unless the timeline hadbeen extended due to exceptional circumstances. In 12 of the 23cases OSEP sampled, MDE had improperly exceeded the 60 daytimeline. MDE was required in its corrective action plan todevelop and implement procedures to address this deficiency. MDEdiagnosed its system and identified internal steps that werecontributing to its difficulty with meeting the 60 day timelimit. The revised procedures MDE submitted to OSEP included astreamlined process for MDE's administration of complaints.These revised procedures were approved by OSEP in Fall 1991 andimplemented by MDE during the 1991-92 school year.

During OSEP's 1994 presite process, a number of parents andadvocates registered their concern that MDE was not resolvingcomplaints in a timely manner. From the 1992-93 school year tothe 1993-94 school year complaints increased significantly, from75 to 100. At the same time, MDE's Office of Monitoring andCompliance (OMC) underwent significant personnel changes. OMC'smanager left her position in Summer '92 and was replaced by astaff member administering in an acting capacity. Complaints,which had been the responsibility of at least two full-time staffduring 1992-93, were largely the responsibility of one individualfor most of the 1993-94 school year. This staff person also hadresponsibility for administering the due process hearing systemas well as reviewing regular and special education expulsions.

FINDING: Table V-A shows that both the number of complaints MDEreceived, as well as the number it failed to resolve within 60days, or within the extended timeline, increased between the1992-93 and 1993-94 school years.16

16 MDE's complaint log for a school begins on July 1 and endson June 30 of the following year.


TABLE V-A

School Year

1992-93

1993-94

No. of Complaints

75

100

Resolution TookLonger Than 60 Days

2417

58

As shown above in Table V-A, MDE did not resolve 58 of the 100complaints, received during the 1993-94 school year, within 60days except where the timeline was extended if an exceptionalcircumstance existed with respect to a particular case. Inanother 16 cases, MDE had extended the timeline (most extensionswere approximately 50 days), and at the time of OSEP's visit, theextended date had not yet arrived. Table V-B shows, for the 58that exceeded timelines, the number of days beyond the 60 daytimeline, or MDE's extended timeline, that it took to resolvecomplaints for the 1993-94 school year.

TABLE V-B

No. at Cases Exceeding 601993-94 School

Day TimelineYear

No. days beyond 60 day, or extended, timeline

1-14days

15

15-30days

11

31-60days

17

61-90days

6

> 90days

9

At the time of OSES's visit, MDE provided OSEP with a currentcomplaint log. This log included cases from the 1993-94 schoolyear (ending June 30, 1994) that had not been resolved as well ascases received in July and August 1994. That log indicated thatOMC had an active case load of 40 complaints and that for 28 ofthose the 60 day time line had already been exceeded. For 27 ofthese 28 cases, MDE had extended the due date for an additional21 to 60 days.

In interviews with OSEP, the MDE staff person responsible for theOffice of Compliance and Monitoring as well as the staff personchiefly responsible for resolving complaints stated that havingonly one person available to work on complaints was the primarycontributing factor to the number of complaints not resolved

17 In seven cases of the 24 cases, MDE's complaint log showsthat the 60 day timeline had been extended and new due datesdetermined. However, MDE exceeded the extended due date in eachof these cases.


within required timelines. In addition, it was noted thatletters of findings had to be reviewed by the attorney general'soffice. Although, this process should take only three days, OSEPwas told that it has typically taken from six to 14 days for theattorney general's office to review and approve complaint lettersof findings.





A. §300.660(adoption of Statecomplaint procedures)

B. §300.661(a)(4)(Issue a writtendecision)

MDE must demonstrate that it has in place a complaintmanagement system that results in the investigation andresolution of complaints within 60 days, unless anextraordinary circumstance exists with regard to aparticular complaint.

1. MDE must demonstrate toOSEP that it has sufficientstaff and resources to carryout this responsibility.

2. MDE must issue quarterlyreports to OSEP verifyingthat complaints areinvestigated and resolvedwithin 60 days except wherethere has been anextraordinary circumstance.


APPENDIX APublic Agency Key Reference

OSEP visited eight local educational agencies (LEAs) as part ofits review of MDE's implementation of Part B. Where appropriate,OSEP has included in this Report data collected from those LEAsto support or clarify the OSEP findings regarding the sufficiencyand effectiveness of MDE's systems for ensuring compliance withthe requirements of Part B. The agency in which the supportingor clarifying data were collected is indicated by a designationsuch as "public agency A." The agencies that OSEP visited andthe designation used to identify those agencies in this Reportare set forth below:

PublicPublicPublicPublicPublicPublicPublicPublic

agency Aagency Bagency Cagency Dagency Eagency Fagency Gagency H

Anoka HennepinSt. PaulMinneapolisDuluthAustinVirginiaRosemount-Apple Valley-EganCloquet


APPENDIX B

OSEP's review process included the involvement of parents andadvocacy groups. Information obtained from these sourcesassisted OSEP in selecting sites to visit, programs to review andissues upon which to focus. An analysis of the informationprovided by parents and advocates is presented on page v. Insome instances findings of noncompliance with Part B were made asa result of investigations of the issues. These findings areincluded in the appropriate sections of this report. The purposeof this appendix is to discuss the issues that were raised butfor which no findings of noncompliance were made.

SUSPENSIONS AND EXPULSIONS: OSEP reviewed the list of studentswith disabilities who had been suspended or expelled, and theamount of time of the suspension and expulsion in each publicagency it visited. In addition, OSEP reviewed records ofstudents who had been suspended and expelled. Teachers of thosestudents were interviewed, as well as administrators of theprograms. OSEP did find that many students with disabilitieswere being suspended. However, OSEP did not find instances wherethe practices regarding suspension and expulsion wereinconsistent with Part B.

OVER-REPRESENTATION OF AFRICAN-AMERICANS IN EBD: I In publicagencies B and C, OSEP found that the percentage of African-American students with EBD was greater at the more restrictivepoints on the continuum (e.g., separate class and separatefacility) than at other points. However, African-Americanstudents were well represented at all points in the continuum ofeducational environments, including the less restrictiveenvironments. OSEP did not find that individual African-Americanstudents were placed inappropriately in more restrictive pointsof the continuum of educational placements.

OSEP reviewed data for each public agency it visited thatincluded: the number of students, by ethnic group, in eachcategory of disability, and in each educational environment(e.g., regular classroom with supplementary aids and services,resource room, separate class, etc.). OSEP reviewed the recordsof African-American students with EBD in the most restrictiveeducational settings, and interviewed their teachers, and theadministrators.

DUE PROCESS HEARINGS: OSEP noted that the number of hearings inMinnesota had increased dramatically since OSEP's previousreview. In 1990, there were six hearings requested and sixdecisions issued. Two of the six decisions were appealed to theState level. In contrast, during 1994 there had been 29 hearingsrequested with five decisions issued and 24 settled or withdrawn.Four of the five decisions were appealed to MDE.


In a conference call with a number of parents and advocatesfamiliar with MDE's due process hearing procedures, OSEP was toldthat the hearing system was not operating effectively. Thefollowing major concerns emerged.

Parents and advocates who had been involved in due processhearings stated that the hearing officers did not seem well-versed in special education law and regulations. OSEP was toldthat MDE did not train the administrative law judges who hear allof MDE's due process cases. As a result, parents and advocatesalleged that the hearings were not conducted properly anddecisions were not always based on proper application of law andregulation. OSEP was also told that hearing decisions were neverissued within the 45 time limit and that school districts'attorneys were discourteous to parents.

OSEP selected for review the case files of several parents whohad spoken to OSEP about the due process hearing system. Withregard to meeting the 45 day timeline, OSEP found, from reviewingthese cases as well as MDE's hearing log, that the 45 daytimeline had been exceeded. However, §300.512(c) allows thatextensions of the 45 day timeline may be granted by a hearingofficer at the request of either party. OSEP found evidence inthe case files that requests by parties for extensions weregranted by the hearing officer for reasons such as schedulingconflicts and the length of hearings. In one instance, a hearingofficer's suggestion that parties be restricted to a limitedamount of hearing time was rejected by attorneys for bothparties.

Although not a violation, OSEP did note in one case it reviewedthat it took 13 days and the written inquiries from a parent'sattorney for MDE to appoint a hearing officer. In addition, thehearing date was not scheduled promptly.

OSEP also investigated the allegation that hearing officers arenot trained and do not base their decisions on proper applicationof law and regulations. MDE told OSEP that it has trained itshearing officers and had scheduled a two-day training session forthe week following OSEP's visit. In the case files that OSEPreviewed, OSEP noted that generally the hearing decisions werethorough and complete, and that appropriate Federal and Staterequirements and court and hearing precedents were cited andapplied to the facts.

Part B does not address the personal conduct of parties to ahearing or their legal counsel. Although the hearing decisionsmade no reference to the behaviors of parties or their attorneys,OSEP did share the parents' and advocates' concern with MDE.

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UNITED STATES DEPARTMENT OF EDUCATION · above (see §§80.40, 300.402, 300.556 and Sec. 441 of the...

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