# Enclosure C

# 

# SPECIAL CONDITIONS

1.  **[Basis for Requiring Special Conditions]{.underline}**

> a\. [For Biennial Performance Report Conditions]{.underline}

The requirements that States ensure that children with disabilities
participate in State and district-wide assessment systems; develop and
administer alternate assessments, if necessary; and report publicly on
the participation and performance of children with disabilities in State
and district-wide assessments are crucial to ensuring that children with
disabilities are provided access to high-quality instruction in the
general curriculum, and that States and districts are held accountable
for the progress of these children. 20 U.S.C. 1412(a)(16)-(17); 34 CFR
§§300.137-300.139. The requirements regarding performance goals and
indicators and the participation of children with disabilities in, and
reporting on participation and performance of children with disabilities
in regular assessments have been in effect since July 1, 1998; the
requirements regarding reporting on alternate assessments have been in
effect since July 1, 2000. According to the information reported to the
Department in the Connecticut's Biennial Performance Report for the
2000-2001 school year, Connecticut is not reporting publicly on the
performance of children with disabilities on alternate assessments in
the same frequency and detail as for nondisabled children as required by
Part B of the Individuals with Disabilities Education Act (IDEA).

Therefore, Connecticut has not complied with all the terms and
conditions of the Federal Fiscal Year 2001 awards under Part B of IDEA.
Under the authority of the Education Department General Administrative
Regulations, 34 CFR §80.12, the Department is imposing these [Special
Conditions]{.underline} on Connecticut's Federal Fiscal Year 2002 awards
under Part B of the IDEA.

b.  [For the PPT Limitation on IDEA Due Process Hearing
    Conditions]{.underline}

Connecticut has established a limitation on IDEA due process hearings at
Ct. Stat. Ann. §10-76h(a)(1), Ct. Reg. §10-76h-3(h) and also in other
eligibility documents (including Section VII.E. of the May 20, 2002
Procedural Safeguards document). Connecticut requires that parents and
school districts must raise issues at its planning and placement team
meetings (PPT) or be barred from raising them at IDEA due process
hearings, which impermissibly restricts parties' due process hearing
rights.

As explained in more detail below, Connecticut's PPT limitation on due
process hearings is inconsistent with a parent's statutory rights under
20 U.S.C. §§1415(f)(1) and (b)(6) to a due process hearing on "any
matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public
education \[FAPE\] to the child" because it is likely to result in the
denial and/or delay of a due process hearing on issues not raised at a
PPT meeting. The PPT limitation also severely undermines both the
purpose of an individualized education plan (IEP) meeting and Congress'
efforts to foster the early resolution of disputes in 1997 when Congress
added mediation, notice and attorneys' fee provisions to the IDEA.
Unlike other State-enacted alternative dispute resolution mechanisms
designed to encourage settlement, the PPT limitation increases
substantially the potential for an adversarial atmosphere at the IEP
meeting by forcing parents to consult and involve attorneys earlier in
the process, participation that is clearly discouraged by the IDEA and
its implementing regulations.

One of the express purposes of the IDEA is "to ensure that the rights of
children with disabilities and their parents are protected." 20 U.S.C.
§1401(d)(1)(B). Among those rights is the right to a due process hearing
on any of the matters listed under 20 U.S.C. §1415(b)(6). The statute
provides that 'whenever' a due process hearing is requested, the parents
are afforded an opportunity for that hearing. It states that
"\[w\]henever a complaint has been received under subsection (b)(6) or
(k) of this section, the parents involved in such complaint shall have
an opportunity for an impartial due process hearing, which shall be
conducted by the State educational agency or by the local educational
agency, as determined by State law or by the State educational agency."
20 U.S.C. §1415(f)(1). Under the IDEA regulations, a party is entitled
to have a due process hearing decision within 45 days of the due process
hearing request. 34 C.F.R. §300.511.

Under 20 U.S.C. §1415(f)(1), State law controls whether (and to some
degree how) the hearing is conducted by the State or local educational
agency and whether the due process hearing process is one- or
two-tiered. State law does not control, however, whether the hearing is
conducted at all or whether the State can delay the holding of a hearing
by requiring additional mandatory meetings or steps that delay the
hearing or the issuance of a timely hearing decision. As the Second
Circuit has made clear, "state procedures which more stringently protect
the rights of the handicapped and their parents are consistent with the
EHA and thus enforceable, ... those that merely add additional steps not
contemplated in the scheme of the Act are not enforceable." [Antkowiak
by Antkowiak]{.underline} v. [Ambach]{.underline}, 838 F.2d 635, 641
(1988), [cert. denied]{.underline}, 448 U.S. 850, 109 S. Ct. 133 (1988).
*See also*, 20 U.S.C. §1415(l) (containing IDEA's express exhaustion
provision) and [Mrs. C.]{.underline} v. [Wheaton]{.underline}, 916 F. 2d
69, 73 (2^nd^ Cir. 1990) ("The EHA incorporates state substantive
standards as the governing federal rule only if they are consistent
with, and at least as exacting as the EHA provisions.").

Of greatest concern to the Department is the very likely effect of
Connecticut's PPT limitation, namely a significant delay in the issuance
of a due process hearing decision by requiring parents who failed to
raise all issues in their first PPT meeting to request an additional
meeting and then request another hearing. Because the Connecticut
statute imposes an additional burden (i.e., additional steps and delays)
on the right of parents to obtain a due process hearing, an additional
burden that is not contemplated by the IDEA, it cannot be squared with
the IDEA.

In 1997, Congress specifically amended the IDEA to address the concern
that appears to have led to enactment of Connecticut's PPT statutory
provision in 1995 -- how to encourage early resolution of disputes
between parents and school districts over the education of children with
disabilities. Among the changes made were the addition of voluntary
mediation and two new notice requirements that were imposed on parents.

First, Congress specifically added the requirement that the State offer
mediation to resolve disputes between parents and school districts,
which must be available at least "whenever a hearing is requested under
subsection (f) or (k)." 20 U.S.C. §1415(e)(1). As noted above,
subsection (f) of the IDEA provides that "\[w\]henever a complaint has
been received ..., the parents involved in such a complaint shall have
the opportunity for an impartial due process hearing ...." 20 U.S.C.
§1415(f)(1). Congress noted that "in States where mediation is being
used, litigation has been reduced, and parents and schools have resolved
their differences amicably, making decisions with the child's best
interest in mind." H.R. Rep. No. 105-95 at 106. However Congress also
expressly provided that mediation must be voluntary for both parties and
may not be used "to deny or delay a parent's right to a due process
hearing under subsection (f), or to deny any other rights afforded under
this part." 20 U.S.C. §1415(e)(2). The Senate noted that its bill
"reduces potential conflict between local educational agencies and
parents of children with disabilities by requiring States to make
mediation available to such parents, on a voluntary basis. The
\[Senate\] committee believes that the use of mediation can resolve
disputes quickly and effectively, and at less cost." S. Rep. No. 104-275
at 53. Thus, States are free to offer mediation even before a hearing is
requested, but may not condition access to a due process hearing on a
failure to use available mediation first. Connecticut's PPT limitation
on due process hearings is akin to a mandatory mediation meeting,
clearly prohibited by Congress under 20 U.S.C. §1415(e)(2). In addition,
it will delay a due process hearing for any parents who fail to raise
all of their issues at the PPT meeting.

Second, Congress added a notice requirement for parents in 1997 to
ensure that school districts would have an adequate opportunity to
redress the underlying issues that are in dispute. With the request for
a due process hearing, and not before, the parents are required to
provide notice to the school describing the "nature of the problem, ...
including facts relating to the problem" and "a proposed resolution of
the problem to the extent known and available to the parents." 20 U.S.C.
§1415(b)(7). Failure to provide this notice does not prohibit the parent
from proceeding with a due process hearing on any issue under 20 U.S.C.
§1415(b)(6). Rather, it can result in a reduced attorneys' fee award if
the parent was represented by an attorney. 20 U.S.C. §1415(i)(2)(F)(iv).
With regard to this change, the House and Senate conference committee
reports note "\[t\]he committee believes that the addition of this
provision \[the notice requirement\] will facilitate an early
opportunity for schools and parents to develop a common frame of
reference about problems and potential problems that may remove the need
to proceed to due process and instead foster a partnership to resolve
problems." H. Rep. No. 105-95 at 105; S. Rep. No. 105-17 at 25.

Also of great concern to the Department is the potential effect of
Connecticut's PPT limitation, namely the greater likelihood that parties
will enter the IEP meeting in an adversarial posture. IEP meetings are
intended to be collaborative so that parents and school officials can
jointly work out the right educational services and placement for the
child. *See*, 20 U.S.C. §1414(d); 34 C.F.R. §§300.340-300.350. The
Connecticut PPT limitation fosters a litigious environment at IEP
meetings as it forces parents to seek to ensure that every issue that
they may need to take to hearing has been properly raised in that forum
first, and thereby encourages parents to consult attorneys at an even
earlier stage in the process and even bring attorneys with them to IEP
meetings. By contrast, Congress amended the IDEA in 1997 to specifically
discourage the participation of attorneys in IEP meetings. Specifically,
Congress prohibited the award of attorneys' fees "relating to any
meeting of the IEP team unless such meeting is convened as a result of
an administrative proceeding or judicial action ...." 20 U.S.C.
§1415(i)(3)(D)(ii). Congress noted that "an IEP meeting shall not, in
and of itself, be deemed to be a proceeding triggering the awarding of
attorneys' fees." S. Rep. No. 104-275 at 53. The House and Senate
conference committee reports note "that the IEP process should be
devoted to determining the needs of the child and planning for the
child's education with parents and school personnel. To that end, the
bill specifically excludes the payment of attorneys' fees for attorney
participation in IEP meetings, unless such meetings are convened as a
result of an administrative proceeding or judicial action." H. Rep. No.
105-95 at 105; S. Rep. No. 105-17 at 25-6.

The Department has also, through its IDEA regulations, discouraged the
participation of attorneys at IEP meetings, as their presence could
create an adversarial atmosphere not consistent with the purpose of the
meeting. 64 [Fed.]{.underline} [Reg]{.underline}. 12478, question 29
(March 12, 1999). As noted in the Discussion to the 1999 IDEA
regulations that implement the IDEA amendments of 1997, "an attorney's
presence would have the potential for creating an adversarial atmosphere
\[at the IEP meeting\] that would not be in the best interests of the
child. Therefore, the attendance of attorneys at IEP meetings should be
strongly discouraged" *Id*.

The two major effects of the PPT limitation, a significant delay or
denial of the due process hearing decision by the requirement of an
additional mandatory process and the increased adversarial nature of IEP
meetings, are inconsistent with the IDEA. Therefore, Connecticut has not
complied with all the terms and conditions of Part B of IDEA. Under the
authority of the Education Department General Administrative
Regulations, 34 CFR §80.12, the Department is imposing these [Special
Conditions]{.underline} on Connecticut's Federal Fiscal Year 2002 grant
awards under Part B of the IDEA.

2.  **[Nature of the Special Conditions]{.underline}**

> a\. [For Biennial Performance Report Conditions]{.underline}

By May 30, 2003, Connecticut must demonstrate that it is reporting to
the public and to the Secretary on the performance of children with
disabilities on its alternate assessments as required at 20 U.S.C.
§§1412(a)(16)-(17) and 34 CFR §§300.137-300.139. The following are the
specific actions Connecticut must take.

> i\. By October 30, 2002, Connecticut will submit a plan detailing the
> steps and timelines for reporting on performance of children with
> disabilities on alternate assessments by May 30, 2003.
>
> ii\. Connecticut will submit progress reports on November 29, 2002,
> January 31, 2003, March 28, 2003 and the final submission due on May
> 30, 2003. The final submission that includes information on the
> reporting of the performance of children with disabilities on
> alternate assessments is to be submitted on the Biennial Performance
> Report format provided by OSEP. (This format is available at
> http://www.ed.gov/offices/OSERS/OSEP/Monitoring/.)

b.  [For the PPT Limitation on IDEA Due Process Hearing
    Conditions]{.underline}

> i\. In recognition of the separation of powers issues raised by
> Connecticut's August 2, 2002 letter, the Department requires that the
> Connecticut State Board of Education must make good faith efforts to
> support in the next session of the Connecticut General Assembly a
> legislative amendment to remove the mandatory PPT limitation on due
> process hearings at Ct. Stat. Ann. §10-76h(a)(1) to ensure that the
> right to a due process hearing is not delayed.
>
> ii\. During the grant period, Connecticut must comply with the
> provisions of the IDEA, which do not prohibit a party from raising in
> a due process hearing an issue that was not raised in a PPT meeting.
>
> iii\. CSDE must make progress reports to OSEP on its efforts to amend
> the PPT requirement: by November 29, 2002 (with a draft of its
> proposed legislative amendment and its revised interpretations of or
> revisions to its regulation and any other eligibility documents
> containing the PPT requirement); by January 31, 2003 (with the
> proposed statutory amendments submitted to the legislature as
> Connecticut's state legislature next convenes on January 8, 2003); by
> March 28, 2003 (to report on the legislature's progress); and with a
> final submission by June 9, 2003 (the Monday following the June 4,
> 2003 close of Connecticut's state legislature). Connecticut must
> inform school districts and parents of the status of its legislative
> amendments and the deletion of its PPT limitation on due process
> hearings by memo or other documentation and provide in its progress
> reports to OSEP copies of this documentation.

3.  **[Evidence Necessary for Conditions To Be Removed]{.underline}**

> a\. [For Biennial Performance Report Conditions]{.underline}

The Department will remove the [Special Conditions]{.underline} on the
biennial performance report if, at any time prior to the expiration of
the grant year, Connecticut provides documentation, satisfactory to the
Department, that it has fully met the requirements to report on the
performance of children with disabilities on alternate assessments. This
information is to be submitted on the Biennial Performance Report format
provided by OSEP. (This format is available at
http://www.ed.gov/offices/OSERS/OSEP/Monitoring/.)

b.  [For the PPT Limitation on IDEA Due Process Hearing
    Conditions]{.underline}

The Department will remove the [Special Conditions]{.underline} on
Connecticut's PPT requirement if, at any time prior to the expiration of
the grant year, Connecticut provides documentation, satisfactory to the
Department, that: (1) Connecticut State legislature has deleted the PPT
limitation on due process hearings from Ct. Stat. Ann. 10-76h(a)(1); and
(2) Connecticut has deleted this limitation from (a) Connecticut's Reg.
§10-76h-3(h) and Procedural Safeguards documents (Procedural Safeguards
documents, page 318, section J of the original and Section VII.E. of the
May 20, 2002 submission) and (b) any other Connecticut documents that
contain this requirement for IDEA Part B due process hearings; and (3)
Connecticut has informed school districts and parents of the deletion of
its PPT limitation on due process hearings by memo or other
documentation. The foregoing information is to be submitted by letter
addressed to the OSEP Part B contact for Connecticut, Margaret Romer,
whose contact information is listed below.

## Method of Requesting Reconsideration

The State may write to the Assistant Secretary for the Office of Special
Education and Rehabilitative Services, if the State agency wishes the
Department to reconsider any aspect of these [Special
Conditions]{.underline}. Any request should describe in detail the
changes to the [Special Conditions]{.underline} sought by the State and
the reasons for those requested changes.

4.  **[Submission of Reports]{.underline}**

All reports that are required to be submitted by Connecticut to the
Department under the [Special Conditions]{.underline} should be
submitted to:

Margaret C. Romer

Office of Special Education Programs

330 C Street SW, Room 3625

Washington, DC 20202

Tel.: (202) 205-9131

Fax: (202) 205-9179

Email: margaret.romer@ed.gov