# Enclosure D

# Special Conditions 

**1**. **Basis for Requiring Special Conditions**

Pursuant to 34 CFR §80.12, the Office of Special Education Programs
(OSEP) is imposing [Special Conditions]{.underline} on Colorado's
Federal Fiscal Year (FFY) 2007 grant award under Part B of the
Individuals with Disabilities Education Act (Part B), related to the
failure to correct specific areas of noncompliance that OSEP identified
in its March 30, 2001 Colorado Monitoring Report (Report), as required
by 20 U.S.C. §§1232d(b)(3) and 1412(a)(11), and 34 CFR §300.600.[^1]
Specifically, OSEP found that the State failed to correct noncompliance
related to the provision of: (a) services and supports to meet the needs
of children with disabilities, as required by 34 CFR §300.300 (300.101);
(b) needed psychological counseling services, as required by 34 CFR
§§300.300 (300.101) and 300.24 (300.34); and (c) adequate supports for
children with behavior disorders, as required by 34 CFR §§300.300
(300.101) and 300.346(a)(2)(i) (300.324(a)(2)(i)).[^2]

Enclosure D to OSEP's FFY 2006 grant award letter details the history
relating to the identification and correction of noncompliance regarding
these issues. That letter required Colorado to submit two Progress
Reports, the first with the FFY 2005 Annual Performance Report (APR) due
February 1, 2007, and the second by June 1, 2007. Each Progress Report
was to address, separately, the failure to correct noncompliance with
the above requirements. The State provided the required Reports.

In its April 26, 2007 letter to the State responding to the State's
first Progress Report, OSEP asked the State to clarify, in its Progress
Report due June 1, 2007, the State's standard for determining when
noncompliance has been corrected. In its June 1, 2007 Progress Report,
Colorado stated:

> The CDE defines compliance as the Administrative Units having policies
> and procedures in place that align with the Individuals with
> Disabilities Education Act (IDEA) as well as Colorado's Exceptional
> Children's Educational Act (ECEA). CDE's monitoring process, then,
> collects and examines evidence to determine whether or not those
> policies and procedures are being implemented consistently and
> appropriately. AUs that have any compliance issues receive a citation
> and must develop a correction action plan to ensure correction within
> one year. This plan is subject to CDE approval. The major factors that
> are examined are adequacy, timing, sustainability and potential
> institutionalization of the plan. Within one year of the original
> citation, the AU must provide clear and compelling evidence that the
> corrective action plan has been implemented in order to clear the
> citation.

Colorado provided two examples of how it implements its standard of
correction. In the first example, the State monitored a district to
determine whether prior noncompliance related to the provision of
transition services had been corrected. The State reported that it
reviewed the district's program for transition services and conducted a
file review to examine documentation of transition services in
Individualized Educational Programs (IEPs). The State compared the data
to its previous record review and concluded that the noncompliance had
been corrected because "the data had significantly improved, indicating
that policies and procedures were in effect."

While an examination of policies and procedures is an appropriate part
of a State's monitoring procedures, the State's standard of "significant
improvement" is vague. Under this standard, the State could find
compliance even if the district remains out of compliance. For example,
a finding that, in a particular district, the percentage of IEPs with
required transition services was 40% would not merit a finding of
correction of noncompliance, even if the district's previous data had
indicated that only 5% of IEPs contained required transition services.
Under this scenario, the State should properly conclude that the
district had "significantly improved," but nevertheless remained out of
compliance.

In the second example, Colorado reported that it monitored a district to
determine whether prior noncompliance related to the provision of
adequate services to meet student needs had been corrected. As part of
its review, the State focused on whether "in fact, staff were providing
the services specified on the IEPs." OSEP is satisfied by the method the
State used to gather data in this example to determine whether
noncompliance had been corrected, although it is unclear whether the
State's determination of correction was based on a finding of
"significant improvement" in this instance.

In its June 1, 2007 Progress Report, the State also submitted 6 Tables,
which included information on the status of correction of noncompliance
broken down by Administrative Unit (AU) and the type of noncompliance,
as requested in OSEP's July 3, 2006 grant award letter. This data
indicated that 54 out of 56 citations of noncompliance had been
corrected by May 15, 2007. However, because the State did not use the
proper standard to determine correction of noncompliance, OSEP is unable
to conclude that the State has satisfied the Special Conditions imposed
on it in the FFY 2006 grant award letter.

**2.** **Nature of the Special Conditions**

Pursuant to these [Special Conditions]{.underline}, the State must
provide, by November 30, 2007, documentation that the findings of
correction reported in the Tables attached to its June 1, 2007 Progress
Report were based on the State's determination that the files reviewed
were in compliance with relevant IDEA requirements that formed the basis
of the original findings of noncompliance.

If, after reviewing the information and data in the Tables, the State
determines that some or all of the noncompliance that the State had
reported as corrected was not corrected, the State must provide two
Progress Reports, the first due November 30, 2007[^3], and the second by
June 1, 2008. Each Progress Report must address, separately, the failure
to correct noncompliance with the requirement to provide (a) services
and supports to meet the needs of children with disabilities; (b) needed
psychological counseling services; and (c) adequate supports for
children with behavior disorders, as required by 20 U.S.C. §§1232d(b)(3)
and 1412(a)(11), and 34 CFR §300.600; 34 CFR §300.101; 34 CFR §300.34;
and 34 CFR §300.324(a)(2)(i).

A.  In the first Progress Report, due on November 30, 2007, the State
    must provide for each of the three areas in which it has failed to
    correct noncompliance:

> \(1\) Updated correction data for the FFY 2003 findings of
> noncompliance in the 11 AUs for which the State had not verified
> correction by December 31, 2006. For findings of noncompliance that
> were not corrected by December 31, 2006, a description of the actions
> that the State has taken, including enforcement actions, to ensure
> correction of the finding(s) (this should include the results of the
> State's analysis of factors that have contributed to any continuing
> noncompliance, and of the strategies that the State has implemented to
> address those factors); and
>
> \(2\) Updated correction data for the FFY 2004 findings of
> noncompliance in the 10 AUs for which the State had not verified
> correction by December 31, 2006. For findings of noncompliance that
> were not corrected by December 31, 2006, a description of the actions
> that the State has taken, including enforcement actions, to ensure
> correction of the finding(s) (this should include the results of the
> State's analysis of factors that have contributed to any continuing
> noncompliance, and of the strategies that the State has implemented to
> address those factors).

B.  In the second Progress Report, due on June 1, 2008, the State must
    provide, for each of the three areas in which it had failed to
    correct noncompliance, the following updated information:

> \(1\) For noncompliance not corrected by December 31, 2006, the number
> and percentage of the 11 AUs monitored in FFY 2003 for which the State
> has verified correction by March 31, 2008.
>
> For any findings of noncompliance that were not corrected by March 31,
> 2008, a description of the actions that the State has taken, including
> enforcement actions, to ensure correction of the finding(s) (this
> should include the results of the State's analysis of factors that
> have contributed to any continuing noncompliance, and of the
> strategies that the State has implemented to address those factors);
> and
>
> \(2\) For noncompliance identified in FFY 2004 and not corrected by
> December 31, 2006, the number and percentage of the AUs for which the
> State has verified correction by March 31, 2008.
>
> For any findings of noncompliance that were not corrected by March 31,
> 2008, a description of the actions that the State has taken, including
> enforcement actions, to ensure correction of the finding(s) (this
> should include the results of the State's analysis of factors that
> have contributed to any continuing noncompliance, and of the
> strategies that the State has implemented to address those factors).

**3. Evidence Necessary for Conditions To Be Removed**

The Department will remove these [Special Conditions]{.underline} if, at
any time prior to the expiration of the grant year, Colorado provides
documentation, satisfactory to the Department, that it has submitted
data demonstrating the correction of noncompliance regarding the failure
to correct identified noncompliance with respect to the failure to
provide (a) services and supports to meet the needs of children with
disabilities; (b) needed psychological counseling services; and (c)
adequate supports for children with behavior disorders, as required by
20 U.S.C. §§1232d(b)(3) and 1412(a)(11), and 34 CFR §300.600; 34 CFR
§300.101; 34 CFR §300.34; and 34 CFR §300.324(a)(2)(i).

**4.** **Method of Requesting Reconsideration**

The State can write to Patricia Guard if it wishes the Department to
reconsider any aspect of these [Special Conditions]{.underline}. The
request must describe in detail the changes to the [Special
Conditions]{.underline} sought by the State and the reasons for those
requested changes.

**5.** **Submission of Reports and Documentation**

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

> U.S. Department of Education
>
> Office of Special Education and Rehabilitative Services
>
> Attn: Debra Jennings
>
> 400 Maryland Ave, SW
>
> Washington, DC 20202-2550

[^1]: The Special Conditions address only those areas of noncompliance
    in the Report that remain outstanding.

[^2]: The citations within the parentheses refer to the final
    regulations governing Part B of the Individuals with Disabilities
    Education Act, as amended by the Individuals with Disabilities
    Education Improvement Act of 2004. 71 Fed. Reg. 46540 (August 14,
    2006).

[^3]: In addition to the specific reporting requirements set forth with
    this enclosure, the State must also, as part of its FFY 2006 APR,
    due by February 1, 2008, provide the required data for Indicator 15
    for the reporting period of July 1, 2006 - June 30, 2007.