September 21, 2004

Honorable Valerie Woodruff

Secretary of Education

Delaware Department of Education

The Townsend Building

P.O. Box 1402

Dover, Delaware 19903-1402

Dear Secretary Woodruff:

The purpose of this letter is to respond to the Delaware Department of
Education's (DDE's) March 31, 2004 submission of its Federal Fiscal Year
(FFY) 2002 Annual Performance Report (APR) for the Individuals with
Disabilities Education Act (IDEA) Part B funds used during the grant
period July 1, 2002 through June 30, 2003. The APR reflects actual
accomplishments made by the State during the reporting period, compared
to established objectives. The APR for IDEA is designed to provide
uniform reporting from States and result in high-quality information
across States.

The APR is a significant data source utilized in the Continuous
Improvement and Focused Monitoring System (CIFMS) implemented by the
Office of Special Education Programs (OSEP), within the U.S. Department
of Education. The APR falls within the third component of OSEP's
four-part accountability strategy (i.e., supporting States in assessing
their performance and compliance, and in planning, implementing, and
evaluating improvement strategies) and consolidates the self-assessing
and improvement planning functions of the CIFMS into one document.
OSEP's Memorandum regarding the submission of Part B APRs directed
States to address five cluster areas: General Supervision, Early
Childhood Transition, Parent Involvement, Free Appropriate Public
Education in the Least Restrictive Environment, and Secondary
Transition.

*Background*

The placement of children with disabilities in the least restrictive
environment has been a longstanding issue in Delaware. In its 1995
Monitoring Report, OSEP identified deficiencies related to placement of
students in the LRE, particularly with regard to the placement of
students with disabilities in regular education classes. DDE took steps
toward correcting this noncompliance by monitoring, through annual unit
audits in each district, to ensure that the LRE requirements were met
and requiring districts found in noncompliance to complete corrective
action plans. In 2000, DDE conducted a Self-Assessment and subsequently
developed an Improvement Plan including periodic Improvement Plan
Progress Reports to OSEP. The Improvement Plan Progress Reports and,
most recently, OSEP's visit to Delaware in September 2003 all identified
the Delaware funding formula for special education as a barrier to
student placement in the least restrictive environment. DDE worked with
the Delaware legislature for several years to realign the funding
formula in order to eliminate barriers such as a requirement that
children with disabilities be with a special education teacher 12.5
hours per week in order to have full-time status as a special education
student and receive the funding that follows full-time status. During
the OSEP visit to Delaware in September 2003, OSEP confirmed that the
Delaware legislature approved actions that increased flexibility for
placement of preschool children with disabilities in the least
restrictive environment by removing funding barriers. Additionally, DDE
piloted a new system of granting waivers for the 12.5 hour requirement
for the school age population in two districts and hired an outside
consultant to evaluate the impact of this change.

OSEP visited Delaware in September 2003 to verify the effectiveness of
the State's systems for general supervision, data collection and
reporting under Section 618 of IDEA, and State-wide assessment. During
the verification visit, OSEP found that DDE was unable to verify that
due process hearing decisions were issued within the 45-day timeline
after a request for a hearing unless the hearing officer had granted an
extension, based on the request of a party, consistent with 34 CFR
§300.511. In the verification letter to DDE dated December 15, 2003,
OSEP directed the State to submit a plan that described how DDE would
monitor and enforce timelines for due process hearing decisions.

During the verification visit, OSEP also reviewed the special conditions
placed on the State's FFY 2003 IDEA Part B Grant Awards regarding the
administration of the Delaware Alternate Portfolio Assessment (DAPA), a
part of the Delaware Student Testing Program (DSTP). Delaware did not
develop and administer alternate assessments in all DSTP content areas
and did not report publicly and to the Secretary of the U.S. Department
of Education on the participation and performance of children with
disabilities on alternate assessments, as required. Subsequent updates
that DDE submitted on this matter indicated that during the 2003-2004
school year, children taking the DAPA would be assessed at the same time
and in the same way as children participating in the general assessment;
however, the scores for children taking the alternate assessment will
not be reported until the 2004-2005 school year.

The State's APR should reflect the collection, analysis, and reporting
of relevant data, and document data-based determinations regarding
performance and compliance in each of the cluster areas (as well as any
other areas identified by the State to ensure improvement**).** OSEP's
comments are listed by cluster area.

## General Supervision

The State provided data and information on pages one through five of the
APR demonstrating that DDE's policies and procedures identified
compliance, ensured correction of noncompliance in a timely manner, and
encouraged positive program performance. The State presented baseline
and trend data, indicators, targets, activities, timelines, and
projected resources to address each of the following topics in this
cluster: (a) effective general supervision, (b) identification and
remediation of systemic noncompliance, (c) timely dispute resolution,
(d) sufficient personnel, and (e) accurate and timely data collection
and reporting.

On pages one and two of the APR, DDE described results of the State's
desk audits during the reporting period. The State reviewed each of the
nineteen districts' individualized education program (IEP) forms and
evaluation summary reports. The State also reviewed the districts'
"Permission to Evaluate" forms and found them to be in compliance with
IDEA. The State expected all districts would have completed a
self-assessment by the end of the 2003-2004 school year. The State's
review of the September 30, 2003 child count indicated that among 1500
student record files from nineteen school districts and ten charter
schools, only five records were unable to be counted toward the State's
formula for special education funding purposes. The State concluded that
the high number of completed records was evidence of a high compliance
rate. OSEP looks forward to reviewing the implementation of planned
monitoring activities in the next APR.

On page three of the APR, DDE described the steps the State took to
identify and remediate systemic issues found through an analysis of data
collected during the monitoring process, complaint investigations, and
hearing resolutions. On Attachment I of the APR, DDE reported that all
complaint decisions met the 60-day timeline. The APR also indicated that
training offered by the State contributed to successful mediations. One
mediation was pending on August 31, 2003. On Attachment 1 of the APR,
DDE also reported that, of the 19 requests for hearings during the
reporting period, three were held with a decision rendered. DDE was
unable to determine the number of decisions issued after timelines and
extensions expired; however, according to the data on Attachment I, as
of September 30, 2003, there were no hearings pending.

In response to the due process issue raised in the verification letter,
DDE submitted a plan to OSEP dated August 30, 2004 that included the
mechanisms that DDE is using to ensure that due process hearing
decisions timelines are met in accordance with due process requirements.
OSEP accepts DDE's plan which appears to be designed to lead to
resolution of this issue. The plan that DDE submitted on August 30, 2004
includes both training and monitoring activities, including an internal
tracking system that documents the date the written approval for
extension of the due process hearing timelines was granted.

On pages four and five of the APR, DDE discussed the status of trained
personnel to meet the educational needs of all children with
disabilities in the State. Of the 1945 full-time equivalent (FTE)
teachers providing special education, 482 were not fully certified; 12
of the 18 FTE occupational therapists were not fully certified; and four
of the eight FTE physical therapists were not fully certified. The
districts also provided compensatory services to children who were
affected by a loss of service. The State proposed activities, timelines
and projected resources for reaching the goal to have sufficient numbers
of administrators, teachers, related service providers,
paraprofessionals and other providers to meet the identified needs of
all children with disabilities in the State. OSEP looks forward to
reviewing the results of these activities in the next APR.

On pages five and six of the APR, the State identified a goal to collect
accurate and timely data to use in reports and decision-making. DDE
stated that all LEAs submitted accurate and timely data to the State and
that the State reported data to OSEP in a manner that was both timely
and accurate. The greatest challenge in reporting data was in the area
of student discipline because districts used different databases to
report to the State. DDE reported that the State would work with
districts to standardize discipline data reporting so that data were
accurate and received in a timely manner. OSEP looks forward to
reviewing the results of DDE's efforts to standardize discipline data in
the next APR.

***Early Childhood Transition***

On pages six and seven of the APR, DDE reported that the State did not
have goals, performance indicators or baseline trend data for early
childhood transition for the reporting period. The State identified
targets, activities, timelines and resources for the next reporting
period and stated the information would be included in the State's next
APR.

Among the activities listed on page six of the APR, DDE reported that it
would work with the Part C system and local school districts to identify
operational and/or organizational elements that require further
resources so all children begin services by their third birthday. DDE
also indicated that it would work with the State's Part C program to
track students exiting Part C who are eligible for Part B services. OSEP
assumes that any Part C to Part B tracking system that Delaware develops
will not involve the disclosure of personally identifiable information
from student\'s education records or, if it will, that it is consistent
with the IDEA and FERPA. OSEP has enclosed, for your information, a copy
of its February 11, 2004 letter to Elder which discusses the limited
disclosure of personally identifiable information for purposes of
meeting IDEA\'s child find mandate.

While the Part B APR did not contain evidence of noncompliance, the Part
C FFY 2002 APR submitted by the Department of Health and Social Services
(DHSS) documented systemic noncompliance not previously identified by
OSEP. The data that DHSS submitted indicated potential noncompliance
regarding transition requirements in that for FFY 2002 only 61%, and in
FFY 2003 only 64% of transition conferences that were held by DHSS under
Part C included school district participation. Part B requires that
school districts participate in the early childhood transition
conferences required to be held under Part C. (See 34 CFR § 300.132(c).)
A copy of the pages of the DHSS' FFY 2002 APR that references this early
childhood transition conference data is enclosed. Within 60 days of the
date of this letter, DDE must review the data and provide to OSEP an
explanation of whether LEAs are participating in transition planning
conferences for children leaving the Part C program who are eligible for
Part B services. If the data indicates noncompliance, DDE must also
submit to OSEP, within 60 days of the date of this letter, a plan,
including strategies, proposed evidence of change, targets and timelines
designed to ensure correction of the noncompliance within a reasonable
period of time, not to exceed one year from the date OSEP accepts the
plan. If there is noncompliance, in the next APR, the State also must
include current data and analysis demonstrating progress toward
compliance, and the State must provide a final progress report to OSEP,
with data and analysis demonstrating compliance, as soon as possible,
but not later than 30 days following one year after OSEP accepts the
plan.

***Parent Involvement***

On pages seven through nine of the APR, DDE reported that the State goal
for parent involvement was that "family satisfaction with opportunities,
variety and convenience of training activities will increase and family
involvement in all State/district/school level activities involving the
education of children with disabilities will increase." The State had
baseline and trend data, indicators, targets, activities, timelines, and
resources to address this cluster. The State included a copy of the
parent survey, description of the sampling process, and methodology for
analyzing data gathered from the survey. OSEP looks forward to reviewing
the results of these activities in the next APR.

***Free Appropriate Public Education in the Least Restrictive
Environment***

On pages ten through 24 of the APR, DDE provided information about the
State's goals to appropriately identify and serve all children eligible
for Part B services. The State presented data, disaggregated by race and
ethnicity, for enrollment, educational environment, and assignment to
disability category in Attachment 2. On pages ten and 11 of the APR, the
State did not set goals and performance indicators specific to
disproportionality; but reported that projected targets would be set
during the 2004-2005 school year.

34 CFR §300.755 requires that States that identify significant
disproportionality on the basis of race in the identification of
children with disabilities (including identification within particular
categories of disability) or in placements into particular settings must
provide for the review and, if appropriate, revision of the policies,
procedures and practices used in identification or placement to ensure
that they comply with Part B. The instructions to the 2002 APR require
States that identify significant disproportionality to report on the
results of that review of policies, procedures and practices. The
State's 2002 APR, however, while identifying significant
disproportionality, did not include any information indicating that the
State had provided for a review of policies, procedures or practices
used in identification or placement of children with disabilities. In
the next APR, the State must include the information required by the
instructions. If the 2003 APR does not include information indicating
that the State, when it identifies significant disproportionality, has
either conducted a review of policies, procedures or practices used in
identification or placement of children with disabilities or otherwise
ensured that such a review was done, OSEP will conclude that the State
is not complying with the regulation.

The State identified a goal to increase the number of youth in special
education who successfully complete high school. Indicators included the
graduation and dropout rates. Baseline data, targets, explanation of
progress and slippage, activities, timelines, and resources were
included in the APR. The State expressed the concern that activities and
projected targets would be affected by the State's plan to adopt high
stakes graduation requirements.[^1]

Pages 13-16 of the APR addressed suspensions and expulsions. The State
reported trend data regarding suspensions and expulsions for the years
2001-2003. Baseline data, targets, explanation of progress and slippage,
targets, activities, timelines, and resources were included in the APR.
Performance indicators included the percentage of children with
disabilities receiving long- term suspensions or expulsions, the number
of days children with disabilities were suspended, and the percentage of
students committing Delaware State Code §4112 incidents (school crimes).
DDE reported that stakeholders expressed concern over inconsistencies in
the data. DDE also indicated that it created a data reporting system to
ensure accuracy of these data. The APR also included information on
training and technical assistance activities including work on
implementing positive behavior support programs in some schools. DDE
also reported that a high percentage of IEPs with behavior identified as
a need had either accommodations/adaptations or goals to address the
behavior or a behavior support plan. The APR identified a number of
future activities to increase the capacity of all school personnel to
support the behavioral and emotional needs of children.

34 CFR §300.146 requires that States examine data to determine if
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities either among
LEAs in the State or compared to the rates for nondisabled children
within the agencies. Where the State determines that significant
discrepancies are occurring, it must review and, if appropriate, revise
(or require the affected State agency or LEA to revise) its policies,
procedures and practices relating to the development and implementation
of IEPs, the use of behavioral interventions, and procedural safeguards
to ensure that the policies procedures and practices comply with Part B.
The instructions to the 2002 APR direct States to describe which of
these comparisons it did, as well as the method the State used to
determine possible discrepancies, what constitutes a discrepancy, the
number of agencies with significant discrepancies, and, if significant
discrepancies are occurring, a description of those discrepancies and
how the State plans to address them. The State's 2002 APR, however, did
not include any information indicating that the State had examined data
from the LEAs that it used in assembling the State level data to
determine whether significant discrepancies were occurring in the LEAs
based on either one of comparisons described above. In the next APR, the
State must include the information required by the instructions. If the
2003 APR does not include information indicating that the State has
examined all data for all LEAs to determine whether significant
discrepancies are occurring in the LEAs based on either one of
comparisons described above, and that when it identifies significant
discrepancies it reviews and, if appropriate, revises (or requires the
affected State agency or LEA to revise) its policies, procedures and
practices consistent with 34 CFR §300.146, then OSEP will conclude that
the State is not complying with the regulation.

The State reported on participation and performance on State-wide
assessments on pages 17 --21 and Attachment 3. The large-scale
assessment in Delaware was the DSTP. The State goal was to increase the
performance of children on the assessment. Indicators included the
reported results of children who took the assessment with no
accommodations, students who took the assessment with accommodations and
children who took the DAPA. The State reported participation rates of
over 94% for 2002 and over 95% for 2003 for the DSTP and over 98% for
2002 and over 93% for 2003 for the DAPA. The State reported results for
2001, 2002, and 2003 in grades 3, 5, 8, and 10. Overall, children with
disabilities in grades 3, 5, and 8 increased performance results.
However, the State reported that students with disabilities were
primarily performing below the standard at all grade levels on the DSPT
reading, mathematics, and writing; however, data generally indicated an
increase in the percentage of children with a valid score who were
meeting/exceeding the standard at all grade levels. The APR identified
baseline data, explanation of progress and slippage, targets,
activities, timelines, and resources. DDE indicated that one of the
goals of the State Improvement Grant (SIG) was to improve reading
results for children with disabilities. In the State's next APR, OSEP
encourages Delaware to continue to report the State's progress in
narrowing the achievement gap between children with and without
disabilities as well as the impact of the SIG on reading scores.

Special conditions continued on the State's FFY 2004 IDEA Part B Grant
Award regarding the administration of the DAPA. Specifically, OSEP
determined that Delaware was not reporting publicly and to the Secretary
on the participation and performance of children with disabilities in
alternate assessments (science and social studies), as required at 20
U.S.C. 1412(a) and 34 CFR §300.139(a)(2). In the State's next APR,
Delaware must include this information to demonstrate compliance with 34
CFR §300.139(a)(2).

On pages 22-24 of the APR, Delaware reported a goal in the Delaware
State Improvement Grant that children with disabilities would be
effectively included in the general education classroom and participate
with their nondisabled peers. The State had baseline and trend data,
targets, explanation for slippage and progress, targets, activities,
timelines, and resources to address this issue. As noted in the
Background section of this letter, DDE and OSEP identified Delaware's
formula for special education funding as a barrier to placement of
students with disabilities in the LRE. The State also reported on future
activities to develop and implement inclusive schools initiatives. In
the State's next APR, Delaware must continue to report on its progress
in removing the funding barrier. In addition, DDE must include
monitoring data related to LRE and continue to report on the success of
inclusive school initiatives in the next APR.

Indicators for this goal included the percentage of students who were
educated in the general education classroom more than 80% of the day.
Pages 22-23 of this section of the APR included percentage goals to
determine whether or not children with disabilities were educated in the
least restrictive environment. While it is not inconsistent with Part B
of the IDEA to include a numerical goal to increase the percentage of
children with disabilities determined eligible for services, the State
must continue to monitor to ensure that eligibility decisions for all
children are made in conformity with the requirements of Part B of the
IDEA (at 34 CFR §§300.531 through 300.535) and not based upon a
numerical goal.

On page 24 of the APR, DDE noted that it did not currently collect data
on preschool outcomes, although DDE indicated that the State would
research how to collect and report this data. Under the Government
Performance and Results Act of 1993, 31U.S.C. 1116, the effectiveness of
the IDEA section 619 program is being measured based on the extent to
which early language/communication, pre-reading, and social-emotional
skills of preschool children with disabilities receiving special
education and related services are improving. In the FFY 2003 APR, DDE
must either submit documentation of data (whether collected through
sampling, monitoring, individual IEP review, or other methods), targets
for improved performance and strategies to reach those targets for this
area, or a plan to collect the data for the FFY 2004 APR, including a
detailed timeline of the activities necessary to implement that plan.

***Secondary Transition***

On pages 25-26 of the APR, the State discussed a goal of improving
post-school outcomes for youth with disabilities to reflect
participation in post-school activities, including post-secondary
education at two-year and four-year colleges and employment within two
years of leaving high school. However, the State reported in the APR
that while the State collected data beginning in 1999, the data were
inadequate to provide baseline and trend data analyses. The State
changed its data-gathering instrument to more accurately identify
post-school education and employment data and planned to administer the
new instrument in 2004. The State reported that baseline and trend data,
targets, explanation for slippage and progress, targets, activities,
timelines, and resources to address this goal would be reported in the
State's next APR.

## 

## Conclusion

Within 60 days of the date of this letter, DDE must review the early
childhood transition data and provide to OSEP an explanation of whether
LEAs are participating in transition planning conferences for children
leaving the Part C program who are eligible for Part B services. If the
data indicates noncompliance, DDE must also submit to OSEP within 60
days of the date of this letter, a plan, including strategies, proposed
evidence of change, targets and timelines designed to ensure correction
of the noncompliance within a reasonable period of time, not to exceed
one year from the date OSEP accepts the plan.

In the FFY 2003 APR, the State must:

-   Demonstrate compliance with 34 CFR §300.139(a)(2) regarding the
    reporting of test scores for the States' alternate assessment;

-   Continue to report on its progress in revising the State formula for
    special education funding that OSEP and the State identified as a
    barrier to placement of children with disabilities in the least
    restrictive environment. In addition, the State must include
    monitoring data related to LRE and continue to report on the success
    of the inclusive school initiatives;

-   If DDE identifies noncompliance regarding the early childhood
    transition requirements, the State also must include current data
    and analysis demonstrating progress toward compliance, and the State
    must provide a final progress report to OSEP, with data and analysis
    demonstrating compliance, as soon as possible, but not later than 30
    days following one year after OSEP accepts the plan;

-   Include information on the results of its review of policies,
    procedures and practices used in the identification or placement of
    children with disabilities when it identifies significant
    disproportionality on the basis of race;

-   Include information indicating that the State has examined all data
    for all LEAs to determine whether significant discrepancies are
    occurring in the rate of long-term suspensions and expulsions of
    children with disabilities either among LEAs in the State or
    compared to the rates for nondisabled children within the agencies,
    and if it identifies significant discrepancies, the results of its
    review and, if appropriate, revision (or of the affected State
    agency's or LEA's review and revision) of policies, procedures and
    practices consistent with 34 CFR §300.146; and

-   Include either documentation of data (whether collected through
    sampling, monitoring, individual IEP review, or other methods),
    targets for improved performance and strategies to achieve those
    targets on the early language/communication, pre-reading, and
    social-emotional skills of preschool children, or a plan to collect
    the data for the FFY 2004 APR, including a detailed timeline of the
    activities necessary to implement that plan.

OSEP recognizes that the APR and its related activities represent only a
portion of the work in your State. We appreciate your work on the APR
and we look forward to collaborating with Delaware as you continue to
improve results for students with disabilities and their families. If
you have questions, please contact Sheila Friedman at (202) 245-7349.

Sincerely,

> Stephanie Smith Lee
>
> Director
>
> Office of Special Education Programs

Enclosures

cc: Martha Brooks

[^1]: Subsequent to the State's submission of the APR, the State delayed
    implementation of the new graduation requirements.