June 6, 2008

Honorable LaVerne Terry

Commissioner of Education

Virgin Islands Department of Education

1834 Kongens Gade

St. Thomas, U.S. Virgin Islands 00802-6746

Dear Commissioner Terry:

Thank you for the timely submission of Virgin Islands' FFY 2006 Annual
Performance Report (APR) and revised State Performance Plan (SPP) under
Part B of the Individuals with Disabilities Education Act (IDEA), as
amended in 2004. We also acknowledge the revisions to Virgin Islands'
SPP and APR received on April 14, 2008. We appreciate the State's
efforts in preparing these documents.

The Department has determined that, under IDEA section 616(d), Virgin
Islands needs intervention in meeting the requirements of Part B of the
IDEA. The Department's determination is based on the totality of the
State's data and information including the State's FFY 2006 APR and
revised SPP, other State-reported data, and information obtained through
on-site verification and focused monitoring visits, audits and related
activities, and other publicly available information. See the enclosure
entitled "How the Department Made Determinations under Section 616(d) of
the IDEA in 2008" for further details.

The State's determination for the FFY 2005 APR was also needs
intervention. The State should review IDEA section 616(e) regarding the
potential impact of the Department's determination if the State is
determined to need intervention for three consecutive years.

The specific factor affecting OSEP's determination of needs intervention
for the Virgin Islands was the failure to report valid and reliable data
under the longstanding programmatic Special Conditions related to timely
transition from Part C to Part B. Therefore, the Virgin Islands has
failed to demonstrate compliance with 34 CFR §300.124.

Under the programmatic Special Conditions attached to the Virgin Islands
Department of Education (VIDE) FFY 2007 IDEA Part B grant award, with
its APR due February 1, 2008, VIDE was required to report on and ensure
that all eligible students transitioning from Part C to Part B have
timely individualized education programs (IEPs) or individualized family
service plans (IFSPs) and are receiving special education and related
services by their third birthday, consistent with Part B requirements
(34 CFR §300.124). The VIDE initially reported on only 10 students who
transitioned from Part C to Part B during the reporting period. Of the
ten students listed, one student was excluded from the calculation on
compliance. Although the VIDE reported full compliance for the reporting
period, OSEP's efforts to confirm the report revealed that there were at
least two other students who transitioned from Part C to Part B during
the reporting period, but whose names were not included in the VIDE
report.

On April 28, 2008, VIDE submitted a letter and list of students that it
generated by comparing a list of students exiting the Part C program
with district reports and the State data systems under the Part B
program. The list did not include the dates of initial IEPs or provision
of services as required by the Special Conditions. In addition, OSEP's
review of the list revealed that there were approximately eight
additional students whose birthdays fell within the reporting period and
reported as receiving services under Part B. However, VIDE did not
report on these eight students. Therefore, OSEP concludes that the VIDE
has failed to provide valid and reliable data under the longstanding
programmatic Special Conditions related to early childhood transition.

OSEP also notes that under the Special Conditions, VIDE had to
demonstrate that it is reporting publicly and to the Secretary on the
participation and performance of children with disabilities on Statewide
(Territory-wide) assessments with and without accommodations and on
alternate assessments (20 U.S.C. 1412(a)(16) and 34 CFR §300.160); and
to the extent that school districts in the Virgin Islands continue to
administer districtwide assessments, demonstrate that VIDE is ensuring
that those districts comply with the relevant Part B requirements (20
U.S.C. 1412(a)(16) and 34 CFR §300.160).

On March 27, 2008, the VIDE submitted a letter indicating that public
reporting on assessment is posted on its website; that the alternate
assessment (VITAL-A) is undergoing peer review; and that the "results of
students with IEPs participating in the VITAL-A will be reported with
the general VITAL report." The report cards on the website did not
disaggregate the numbers of students with disabilities taking the
regular assessment with and without accommodations. Although the report
included a statement that "\[a\]lternate assessment scores based on
alternate assessment achievement standards are incorporated in the
report card" OSEP was unable to locate participation rates disaggregated
for the alternate assessment.

As to districtwide assessments, VIDE's June 1, 2007 and June 4, 2007
letters reported that VIDE is unable to report compliance with the
relevant Part B requirements for the administration of districtwide
assessments but that the required reporting occurs. The June 4, 2007
letter also described the districtwide assessments and argued that
because these tests are used for school and classroom planning, student
identification for the gifted program and for after school programs, and
to assist teachers in grouping and lesson planning, these assessments
are not subject to Part B requirements. The letter did not address how
these scores were reported, but the VIDE website contained references to
distribution of the districtwide tests scores to parents. Based upon the
description in the letter and the information on the website, OSEP
concluded that these are districtwide assessment programs subject to the
relevant requirements of Part B and that the VIDE remains out of
compliance with these requirements. In its report, VIDE stated that it
does not administer districtwide assessments and that the website
reference was to Statewide assessments. OSEP notes that districtwide
assessments would be administered by the districts, not the SEA. To
date, VIDE has not submitted any specific documentation, policies,
procedures, or other relevant material that clearly demonstrate that
such assessments are not administered by districts and reported to
parents.

OSEP also notes that the Department has designated VIDE a high-risk
grantee and imposed Special Conditions on its grants to VIDE and will
continue these Special Conditions in 2008. The Special Conditions
require a contract with a third-party fiduciary to address financial
management responsibilities concerning the grants, including, but not
limited to, processing payments and disbursements, maintaining financial
records, financial reporting, property procurements, and other related
financial issues.

The enclosed table provides OSEP's analysis of the State's FFY 2006 APR
and revised SPP and identifies, by indicator, OSEP's review of any
revisions made by the State to its targets, improvement activities
(timelines and resources) and baseline data in the State's SPP. It also
identifies, by indicator, the State's status in meeting its targets,
whether the State's data reflect progress or slippage, and whether the
State corrected noncompliance and provided valid and reliable data.

Your State may want to consider taking advantage of available sources of
technical assistance. A list of sources of technical assistance related
to the SPP/APR indicators is available by clicking on the "Technical
Assistance Related to Determinations" box on the opening page of the
SPP/APR Planning Calendar website at
<http://spp-apr-calendar.rrfcnetwork.org/>. You will be directed to a
list of indicators. Click on specific indicators for a list of centers,
documents, web seminars and other sources of relevant technical
assistance for that indicator.

As you know, your State must report annually to the public on the
performance of each local educational agency (LEA) located in the State
on the targets in the SPP under IDEA section 616(b)(2)(C)(ii)(l). In
addition, your State must review LEA performance against targets in the
State's SPP, determine if each LEA meets the requirements of the IDEA
and inform each LEA of its determination. For further information
regarding these requirements, see the SPP/APR Calendar at
<http://spp-apr-calendar.rrfcnetwork.org/>. Finally, if you included
revisions to baseline, targets or improvement activities in your APR
submission, and OSEP accepted those revisions, please ensure that you
update your SPP accordingly and that the updated SPP is made available
to the public.

Pursuant to section 616(d)(2)(B) of the IDEA and 34 CFR §300.603(b)(2),
a State that is determined to need intervention or need substantial
intervention, and does not agree with this determination, may request an
opportunity to meet with the Assistant Secretary for Special Education
and Rehabilitative Services to demonstrate why the Department should
change its determination. To request a hearing, submit a letter to Tracy
R. Justesen, Assistant Secretary, Office of Special Education and
Rehabilitative Services, 400 Maryland Avenue SW, Room 5107, Potomac
Center Plaza, Washington, DC 20202-2600 within 30 days of the date of
this letter and provide in the letter the basis for your request.

OSEP is committed to supporting Virgin Islands' efforts to improve
results for children with disabilities and looks forward to working with
your State over the next year. If you have any questions, would like to
discuss this further, or want to request technical

assistance, please do not hesitate to call Michael F. Slade, your OSEP
State Contact, at 202-245-7527.

 

Sincerely,

 

  /s/ William W. Knudsen

 

William W. Knudsen

Acting Director

> Office of Special Education Programs

 

Enclosures

 

cc: State Director of Special Education