September 22, 2005

Honorable Inez M. Tenenbaum

State Superintendent of Education

South Carolina Department of Education

1006 Rutledge Building

1429 Senate Street

Columbia, SC 29201

Dear Superintendent Tenenbaum:

The purpose of this letter is to respond to South Carolina's April 2,
2005 submission of its Federal Fiscal Year (FFY) 2003 Annual Performance
Report (APR) under the Individuals with Disabilities Education Act
(IDEA) Part B for the grant period July 1, 2003 through June 30, 2004.
The APR reflects actual accomplishments that the State made during the
reporting period, compared to established objectives. The Office of
Special Education Programs (OSEP) has designed the APR under the IDEA to
provide uniform reporting from States and result in high-quality
information across States. The APR is a significant data source for OSEP
in the Continuous Improvement and Focused Monitoring System (CIFMS).

The State's APR should reflect the collection, analysis, and reporting
of relevant data, and include specific data-based determinations
regarding performance and compliance in each of the cluster areas. This
letter responds to the State's FFY 2003 APR. OSEP has set out its
comments, analysis and determinations by cluster area.

*Background*

OSEP's September 15, 2004 FFY 2002 APR response letter directed the
State to provide data and analysis demonstrating progress toward
compliance with the requirements at:

> \(1\) 34 CFR §300.600 such that OSEP could determine whether the
> State's monitoring system identified all Part B noncompliance and
> ensured correction within one year of identification;
>
> \(2\) 34 CFR §300.511 that due process hearings and State level
> reviews were concluded, a decision reached and mailed to all parties
> within required timelines;
>
> \(3\) 34 CFR §§300.135 and 300.380-300.381 that State and local needs
> for professional development included relevant information on current
> and anticipated personnel vacancies;
>
> \(4\) 34 CFR §§300.300(a), 300.121(c), §300.125(c) and 300.132(b) that
> eligible preschool children would have an individualized education
> program (IEP) and services in place on their third birthdays;
>
> \(5\) 34 CFR §§300.24(b)(2) and (9), 300.300 and 300.347(a)(3) that
> children with disabilities in need of psychological counseling
> services received the services in accordance with their IEPs; and
>
> \(6\) 34 CFR §§300.121(d)(3)(ii), 300.520 and 300.522 that appropriate
> personnel made the determination as to services and the appropriate
> setting for children with disabilities who were suspended and
> expelled.

OSEP also directed the State to provide strategies that would:

> \(1\) maintain compliance with 34 CFR §300.661(a) and (b)(1) regarding
> complaint resolution timelines as well as data and analysis
> demonstrating continued compliance for the FFY 2003 reporting period;
>
> \(2\) ensure continued progress and performance regarding accurate
> data collection (§618 of the IDEA);
>
> \(3\) demonstrate the State's review of its policies, procedures and
> practices used in the identification or placement of children with
> disabilities when it identified significant disproportionality,
> consistent with Federal law (34 CFR §300.755);
>
> \(4\) provide an analysis of compliance data related to 34 CFR
> §§300.347(a)(5) and 300.138 regarding the participation of children
> with disabilities in statewide assessments; and
>
> \(5\) either provide documentation of data (whether collected through
> sampling, monitoring, individual IEP review, or other methods),
> targets for improved performance and strategies to achieve those
> targets regarding improvement of the early language/communication,
> pre-reading and social-emotional skills of preschool children with
> disabilities receiving special education and related services, or a
> detailed plan to collect the data.

SCDE submitted Progress Reports on November 22, 2004 and December 6,
2004, in response to OSEP's September 2004 letter. OSEP responded to
those Progress Reports in a letter dated January 26, 2005. These letters
will be discussed in the appropriate sections below.

# *General Supervision*

###  Identification and timely correction of noncompliance

OSEP's September 2004 letter required the South Carolina Department of
Education (SCDE) to provide data and analysis such that OSEP could
determine whether the State's monitoring system identified all Part B
noncompliance and ensured correction within one year of identification.

On page 3 of the FFY 2003 APR, SCDE reported that, during the 2003-2004
school year (SY), SCDE selected 22 districts for full compliance
monitoring and focused monitoring based on noncompliance areas
identified in OSEP's January 2003 Monitoring Report. On page 6 of the
FFY 2003 APR, the State reported that SCDE continued to have
difficulties ensuring that local educational agencies (LEAs)
consistently corrected identified areas of noncompliance within the
one-year timeline. Reasons cited included: (1) LEAs were not able to
provide documentation requested by the State because it would not be
available within a 12-month period. For example, a district was asked to
submit five folders showing the initial placement of children in the
category of emotional disabilities but did not have five placements
within the one-year timeline; and (2) data collected through interviews
and folder reviews were not triangulated to determine differences
between issues in individual student documentation and systemic issues.
SCDE reported that this resulted in some districts correcting
documentation issues but failing to address systemic issues. SCDE
determined that its Office of Exceptional Children's (OEC) staff needed
to improve skills in the compilation of data collected from folder
reviews and interviews for the identification of areas of noncompliance
and needed improvement. As a result, the State indicated that it
developed a new focused monitoring system for the 2004-2005 SY that
included a district action plan, targeted technical assistance by OEC,
and sanctions, where appropriate. The State reported that training was
provided to OEC staff on the new system from July-August, 2004.

On page 10 of the FFY 2003 APR, the State noted that under its revised
monitoring plan all findings of noncompliance would be corrected within
12 months, and follow-up activities, such as desk audits and on-site
visits were conducted to verify that systemic changes occurred within
the first year and were ongoing.

On pages 17-18 of the FFY 2003 APR and in follow-up telephone
conversations with OSEP in August and September, 2005, SCDE reported on
the status of the correction of noncompliance in LEAs in the areas noted
in OSEP's January 2003 report, as follows:

(1) psychological counseling, as a related service, required at 34 CFR
    §§300.24(b)(2) and (9), 300.300 and 300.347(a)(3)---of the 22
    districts monitored for the provision of counseling as a related
    service during the 2003-2004 SY, 73% of those districts provided
    counseling services, where appropriate, and 63% failed to
    appropriately document the services in the IEP. Four districts have
    corrected this noncompliance and the remaining districts were within
    the one-year timeline and scheduled for follow-up;

(2) appropriate personnel to determine the needs, services, and settings
    for children with disabilities who were suspended or expelled as
    required at 34 CFR §§300.121(d)(3)(ii), 300.520 and 300.522---only
    one of the 22 districts monitored had the issue of failure to have
    the appropriate personnel determine the needs and services for
    children with disabilities who were suspended or expelled. In
    follow-up telephone conversations with the State during August and
    September 2005, SCDE reported that in response to the State's April
    23, 2004 monitoring report, this district provided documentation on
    May 14, 2004, that the district had put in place systems to meet the
    requirements. The State also reported that SCDE conducted a
    follow-up visit to verify that the systems where in place; and

(3) the provision of special education and related services by the
    child's third birthday as required at 34 CFR §§300.300(a),
    300.121(c), 300.125(c) and 300.132(b)---the State noted improvement
    in this provision. Please refer to the e*arly childhood transition*
    section of this letter for OSEP's comments and analysis.

As noted in OSEP's September, 15, 2004 letter, by October 15, 2005, SCDE
must provide **data and analysis demonstrating compliance with the
requirements at: (1)** 34 CFR §300.600, **that South Carolina identifies
and corrects noncompliance identified through its monitoring process;
(2)** 34 CFR §§300.24(b)(2) and (9), 300.300 and 300.347(a)(3) that
children with disabilities in need of psychological counseling services
receive the services in accordance with their IEPs; and (3) 34 CFR
§§300.121(d)(3)(ii), 300.520 and 300.522 that appropriate personnel make
the determination as to services and the appropriate setting for
students with disabilities who have been suspended and expelled. The
State can satisfy this requirement by providing updated information
about the status of the psychological counseling findings, and
documentation about correction of the finding related to services for
students suspended or expelled.

[Other: Systemic noncompliance]{.underline}

On pages 11 and 16 through 23, the State discussed its plans for
identifying and correcting systemic noncompliance. OSEP appreciates the
work of the State in this area.

##### Formal written complaints

OSEP's September 2004 letter required SCDE to submit strategies for
maintaining compliance with 34 CFR §300.661(a) and (b)(1) regarding
complaint resolution timelines, as well as data and analysis
demonstrating continued compliance for the FFY 2003 reporting period. On
pages 3, 24, and 25 of the FFY 2003 APR, the State included data and
analysis demonstrating continued compliance and performance in this
area. SCDE reported that for the period from July 1, 2003 to June 30,
2004, decisions for all 100 complaints investigated were issued within
the 60-day timeline. The State attributed the following strategies to
the progress in this area: (1) a database that allowed for the tracking
of timelines and providing a trigger to the office of general council
notifying the appropriate staff of each date that fell within the 60-day
timeline; and (2) complainants and LEAs were provided written
notification of the 60-day timeline at the onset of the complaint
investigation process. The State included strategies and activities to
maintain compliance in this area. OSEP appreciates the work of the State
in ensuring compliance with the requirements at 34 CFR §300.661(a) and
(b)(1) and looks forward to reviewing the State's data in this area in
the SPP.

##### Mediation

On page 4 of the FFY 2003 APR, SCDE reported that five of the six
mediation requests were completed in a timely manner between the period
of July 1, 2003 and June 30, 2004. The one mediation that exceeded the
14-day timeline was dismissed after repeated unsuccessful attempts to
contact the parents to schedule the mediation. These agreements were
fully implemented within timelines or allowable extensions. OSEP looks
forward to reviewing the State's data regarding the percent of
mediations held that resulted in mediation agreements, as part of the
SPP.

> [Due process hearings and reviews]{.underline}

OSEP's September 2004 letter required SCDE to submit updated compliance
data for meeting the requirements at 34 CFR §300.511, that due process
hearings and State-level reviews were concluded, and a decision reached
and mailed to all parties within the required timelines. On pages 25
through 27 and 33 of the FFY 2003 APR, SCDE reported that of the 29 due
process hearing requests filed during the 2003-2004 SY, decisions were
reached for nine of the 11 fully adjudicated hearings within the 45-day
timeline or an appropriately extended timeline. One request exceeded the
45-day timeline by seven days due to unsuccessful attempts to contact
the parent to schedule the hearing and delays by the parent in
responding to correspondence from the hearing officer. The remaining
request exceeded the 45-day timeline due to delays by both parties. Four
State-level appeals were granted and decisions were rendered within the
30-day timeline for three appeals and within the extended timeline for
the remaining appeal. As noted in OSEP's September 15, 2004 letter, the
State must demonstrate compliance with the timeline in 34 CFR §300.511
not later than October 15, 2005. The State can satisfy this requirement
by providing due process hearing and State review logs demonstrating
that all hearings and reviews resulted in written decisions within the
regulatory timelines, including specific extensions of time at the
request of a party.

### Personnel

OSEP's September 2004 letter required SCDE to submit an analysis of
State and local needs for professional development, including relevant
information on current and anticipated personnel vacancies (34 CFR
§§300.135, and 300.380-300.381). On page 39 of the FFY 2003 APR, SCDE
reported that South Carolina increased the percentage of fully certified
special education teachers from 94% to 95% from 2003 to 2004. The
December 1, 2004 data, reported on pages 37 to 38 of the FFY 2003 APR,
showed that 96% to 100% of personnel who provided services to children
with disabilities (special educators, occupational and physical
therapists, speech/language pathologists, psychologists, counselors,
audiologists, social workers, vocation education teachers, and social
workers) were fully certified. SCDE reported that the State's
partnerships with four institutions of higher education provided
coursework to teachers to gain licensure in their respective areas. The
State also provided personnel preparation grants to LEAs for teachers to
gain licensure. OSEP appreciates the work of the State in this area.

##### Collection and timely reporting of accurate data

Information and data reported on pages 43-45 in the FFY 2003 APR showed
the State's progress in implementing strategies to ensure continued
progress and performance regarding accurate data collection under §618
of the IDEA. SCDE attributed the continued progress and performance in
this area to the following: (1) the State's work with the National
Center on Special Education Accountability Monitoring; and (2) the
implementation of an electronic system to collect data and increase the
level of reporting accuracy. These interventions resulted in an 18.9%
increase in LEAs meeting the State's deadline for submitting section 618
data to the State for Tables 1 and 3 between the 2003-2004 SY (79%) and
2004-2005 SY (97.9%). SCDE also noted that during the 2003-2004 SY, 100%
of LEAs submitted data to the State for Tables 2, 4, and 5 by the
established deadline. SCDE provided data on the implementation of an
electronic system that improved the process of timely data submission
from the LEA to the State. The State also included on page 48,
strategies and activities to address accuracy. OSEP appreciates the work
of the State in this area and looks forward to reviewing the State's
update in this area, that includes information on the accuracy of
reporting, as part of the SPP.

# *Early Childhood Transition*

OSEP's January 2005 letter, responding to SCDE's November and December
2004 Progress Reports, accepted SCDE's plan and strategies to ensure
compliance with the requirements at 34 CFR §§300.320, 300.121(c)(1)(ii))
and (c)(2), and 300.530 to make FAPE available to Part B eligible
children by their third birthdays. Strategies in that plan included: (1)
developing transition activities between SCDE and South Carolina's Part
C BabyNet program; (2) reviewing data from the interim focused
monitoring visits during the 2003-2004 SY regarding timely evaluation to
ensure FAPE by the third birthday; (3) conducting follow-up file reviews
of children with disabilities who were three years of age; (4) reviewing
data regarding whether children who turned three during the summer were
being considered for extended school year (ESY) services and whether
children turning three during the summer received ESY services, where
appropriate; (5) conducting follow-up interviews with LEA staff; (6)
requiring LEAs to submit assurances regarding the provision of services
by the child's third birthday; (7) disseminating a policy letter to LEAs
regarding these provisions; (8) conducting follow-up visits to LEAs
where corrective actions were not made within one year of identified
noncompliance; and (9) imposing sanctions, where appropriate.

On page 52 of the FFY 2003 APR, SCDE reported that results of the
State's 2003-2004 interim focused monitoring in the area of early
childhood transition showed that of 20 districts monitored, half of the
districts failed to: (1) either attend the transition conference or
document attendance at the transition planning conference; (2) have
services in place by the child's third birthday, especially for children
with birthdays during vacation periods, thereby failing to provide
consideration of ESY services; and (3) return documentation indicating
the determination of eligibility and date of the IEP meeting to Part C
in a timely manner.

On page 54 of the FFY 2003 APR, SCDE reported that the State also found
that some districts did not have staff available during the summer
months to complete evaluations, or if they did have staff, waited to
conduct evaluations or develop IEPs after the beginning of the next
school year. The districts cited for noncompliance were required to
develop and submit a corrective action plan to OEC. Follow-up file
reviews of children with disabilities who were three years of age, in
addition to interviews with staff and parents, were conducted during the
2004-2005 SY. As noted in the September, 15, 2004 letter, by October 15,
2005, SCDE must provide data and analysis demonstrating compliance with
the requirements at 34 CFR §§300.320, 300.121(c)(1)(ii)) and (c)(2), and
300.530 to make FAPE available to Part B eligible children by their
third birthdays.

OSEP also requested in the September 2004 letter that SCDE submit
changes to its monitoring documents and protocols to include: (1) in the
focused monitoring addendum and folder review checklist, standards
requiring the administration of evaluations, in a timely manner, to
ensure IEPs were in effect by the child's third birthday; and (2) in the
LEA interview guides, *interview* questions specific to whether ESY
services were available to children with disabilities who turn three
during the summer, and whether evaluations were administered in a timely
manner to ensure that IEPs or individualized family service plans
(IFSPs) were in effect by the child's third birthday. Because the FFY
2003 APR did not include these documents, SCDE must ensure that they are
included in the State's submission to OSEP on October 15, 2005.

# *Parent Involvement*

OSEP's September 2004 letter suggested that SCDE establish baseline data
and continue to include strategies to ensure performance and compliance
in this area. On pages 63 through 65, SCDE reported that the State
developed new performance indicators for the area of parent involvement
through the implementation of a study entitled, *"Family Involvement and
Special Education: A Survey of South Carolina's Caregivers with Children
in Special Education*." The State is anticipating establishing baseline
data from survey results during the 2005-2006 SY. Data examined will
include: (1) the percentage of parents participating in the IEP annual
review meeting; (2) parents from diverse backgrounds who were involved
in planning their child's special education program; and (3) parents'
awareness and access to due process, mediation and complaint resolution
strategies. LEAs would be trained on the method for data collection
during the Fall/Winter 2005.

On pages 61 and 62 of the FFY 2003 APR, SCDE reported that, in order to
advance parent involvement through training and access to information,
the State: (1) distributed child find brochures among parent training,
support, and advocacy groups; (2) posted all documents related to
services for children with disabilities on SCDE's website; and (3)
provided opportunities to parents of students with disabilities to
attend the State's 2004 summer training for individuals working with
preschool children with disabilities.

The SPP instructions establish a new indicator in this area, for which
States must provide baseline data in the FFY 2005 APR, due February 1,
2007. The State should carefully review the instructions to the SPP in
developing its plans for this collection.

***FAPE in the Least Restrictive Environment (LRE)***

##### Disproportionality

OSEP's September 2004 letter required SCDE to review policies,
procedures and practices used in the identification or placement of
children with disabilities when it identified significant
disproportionality on the basis of race, and revise targets on this
issue consistent with Federal law (34 CFR §300.755). On page 92 of the
FFY 2003 APR, South Carolina reported that the State used the WESTAT
tool developed for the FFY 2003 APR reporting to determine
disproportionality. The State's review of the disproportionality data
showed that: (1) South Carolina needed to continue its focus on reducing
the overrepresentation of African-American children in the area of mild
mental disabilities; (2) African-American children were overrepresented
in the category of emotional disturbance; and (3) African-American
children were overrepresented in placements outside the regular class
for greater than 60% of the day. Data on pages 68-87 reported on the
number of districts where African-American children were represented
above the State's weighted risk ratio for the 85 districts. Results
showed the following for African American representation in districts
above the State's risk ratio in the various disability categories: (1)
41 districts for children with all disabilities; (2) 35 districts for
children with educable mental disabilities; (3) 28 for children with
trainable mental disabilities; and (4) 27 for children with emotional
disabilities.

On page 92 of the FFY 2003 APR, SCDE reported that during the 2003-2004
SY, only 54% of the 529 students initially placed and receiving special
education and related services under the category of mild mental
disabilities met the State's eligibility criteria. SCDE indicated that
this "is an area to be addressed."

On page 93 of the FFY 2003 APR, SCDE included a target that the
percentage of children with disabilities, receiving special education,
by race/ethnicity, for all disability categories and environments is
comparable to the general population. The proposed use of numerical
goals based upon race raises serious concerns under Federal civil rights
laws and the United States Constitution and is not an appropriate way to
address the potential compliance problems that significant
disproportionality may indicate. Any proposed use of numerical
goals/targets based upon race, even where the numerical goal is based
upon comparable numbers in the general population, raises the same legal
concerns. Therefore, the State must not use numerical goals/targets
based on race in implementing the requirements of IDEA.

On pages 93 through 95 of the FFY 2003 APR, the State indicated that it
would identify districts with overrepresentation in the areas of mild
mental retardation and emotional disturbance and placement issues and
require the districts to develop plans for improvement. The State also
included strategies and timelines to improve performance. However, the
State did not provide the results of its review of policies, procedures,
and practices used in the identification and placement of students with
disabilities to ensure that they were consistent with the requirements
of Part B and were race-neutral, for those districts with significant
disproportionality in the identification of children in specific
disability categories and the placement of children in particular
educational settings. Therefore, we conclude that the State is not
complying with the requirements of 34 CFR §300.755.

In addressing significant disproportionality related to identification,
under 34 CFR §300.755, it is appropriate to look at policies, procedures
and practices in the referral, evaluation and identification process to
determine if they are educationally appropriate, consistent with the
requirements of Part B and race neutral. Such an examination generally
would include a review of the availability and use of pre-referral
intervention services, the selection and use of evaluation instruments
and materials, the selection and use of evaluation criteria, and the
reasons for referral for special education evaluations. In addressing
significant disproportionality related to placement, under 34 CFR
§300.755, it is appropriate to look at policies, procedures and
practices related to placement in the least restrictive environment
consistent with the requirements at 34 CFR §§300.501 and 300.550-300.556
in order to determine if they are educationally appropriate, consistent
with the requirements of Part B and race-neutral. This would generally
include a review of policies, procedures and practices related to: the
continuum of placement options; the availability of, and access to,
supplementary aids and services; the participation of parents in
placement team decisions; and State monitoring activities and technical
assistance related to placement in the least restrictive environment.
The State must ensure that the SPP is consistent with this guidance.

Not later than the submission of the SPP, due December 2, 2005, the
State must submit a plan to OSEP, including strategies, proposed
evidence of change, targets and timelines designed to ensure correction
of the noncompliance as soon as possible and not more than one year
after OSEP accepts the plan. No later than six months from the date of
this letter, the State must submit a Progress Report including data and
analysis demonstrating progress toward compliance, and provide a report
to OSEP, with data and analysis demonstrating compliance, as soon as
possible, but not later than 30 days following the end of the one year
timeline.

### Graduation and drop-out rates 

On pages 98 to 105 of the FFY 2003 APR, SCDE provided information on the
graduation rate of students with and without disabilities by examining
graduation data reported for the 2004 adequate yearly progress (AYP)
under No Child Left Behind Act (NCLB) and §618 of the IDEA. SCDE
reported that South Carolina was not narrowing the gap between the
graduation rate of students without disabilities (82.4%) and students
with disabilities (35.7%) who graduated with a diploma. SCDE noted that
South Carolina ranked 53 of 57, nationally, in the graduation rates of
children with disabilities based on §618 State-reported data. South
Carolina attributed the low graduation rate of students with
disabilities to a lack of alternative diplomas and stringent graduation
requirements. To examine these concerns, graduation rates were one of
the State's focused monitoring areas during the 2004-2005 SY. The five
districts that showed the lowest graduation rates were selected for
monitoring. SCDE reported that OEC provided technical assistance to
those districts to develop strategies for increasing the graduation
rates of students with disabilities. The State also reported that in
June 2005, the State would increase the number of identified districts
from five to ten and require those districts to address plans for
improvement in this area in their self-assessments.

On pages 96, and 101 to 103 of the FFY 2003 APR, SCDE reported that data
on drop-out rates for students with and without disabilities were
collected from two data sources that did not allow a comparison of the
drop-out rates between the two groups. The State explained that the
drop-out rate for nondisabled students provided a comparison of the
total number of dropouts with the total enrollment in grades nine
through 12 showing the portion of students who drop out in one year.[^1]
The drop-out data for students with disabilities, collected through §618
of the IDEA, were determined by dividing the number of students with
disabilities who dropped out by the number of students with disabilities
who left school in any given year. A slight decrease was noted in the
drop-out rate of students with disabilities between 2002-2003 (34.63%)
and 2003-2004 (31.37%). Therefore, SCDE did not meet its target to
reduce the drop-out rate by 1%. According to data provided by South
Carolina's Office of Safe and Drug Free Schools, the drop-out rate for
all students, including students with disabilities, decreased by .03%.
South Carolina's Offices of Exceptional Children and Technology and
Research worked together to collect drop-out data on all students. The
State anticipated disaggregating the data for students with disabilities
for the 2004-2005 SY.

On pages 102 to 104 of the FFY 2003 APR, the State noted that South
Carolina implemented several initiatives to increase the graduation
rates and decrease the drop-out rates for students with disabilities.
Some of these initiatives included: (1) training on clear and effective
transition plans leading to successful post secondary outcomes; (2)
transition-focused technical assistance to LEAs, consumers, and
providers of secondary transition services; (3) a regional transition
training on self-determination with a focus on students with mild
disabilities; and (4) transition training and courses for general and
special education secondary educators through the State Improvement
Grant and IDEA funding. OSEP looks forward to reviewing the State's
update in this area in the SPP.

### Suspension and expulsion

###  

Regulations at 34 CFR §300.146 require the State educational agency
(SEA) to examine data to determine if significant discrepancies are
occurring in the rate of long-term suspensions and expulsions of
children with disabilities: (1) among LEAs in the State; or (2) compared
to the rates for children without disabilities within the agencies. If
the discrepancies are occurring, the SEA 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 these policies,
procedures and practices comply with IDEA. Data and information
describing compliance with these requirements may include: (1) data and
the resulting analysis identifying significant discrepancies among LEAs
or compared to children without disabilities in the agencies; (2) a
description of the procedures used to conduct a review of policies,
procedures and practices; (3) a description of the decision-making
process used for determining whether existing policies, procedures and
practices in the areas mentioned above contributed to, or were the cause
of, the identified discrepancies; (4) a description of steps taken to
revise any policies, procedures and practices determined to contribute
to the discrepancies; (5) a description of other steps taken if it is
determined that policies, procedures or practices did not cause, or
contribute to, the identified discrepancies, to identify the causes; (6)
the results of implementation of those steps; and (7) the resulting
explanation for the causes of existing discrepancies.

On page 105 of the FFY 2003 APR, SCDE reported that the State did not
have data available on the suspension/expulsion rates of nondisabled
students. South Carolina compared the rates at which individual LEAs
were suspending/expelling children with disabilities, long-term, against
the rates at which other individual LEAs were suspending/expelling
children with disabilities, long-term. Although the State provided
information and data on the suspension/expulsion rates of children with
disabilities, the State did not determine if there was a significant
discrepancy among the rates from different LEAs. On page 108 of the FFY
2003 APR, the State noted that there was: (1) a 44% decrease in the
unduplicated count of children suspended in excess of 10 days; (2) an
11% decrease in multiple suspensions; and (3) a 21% decrease in the
number of LEAs with no suspensions or expulsions (from 37 to 30). On
pages 110 to 111 of the FFY 2003 APR, the State included strategies to
assist LEAs in reducing the number of suspensions and expulsions.

With the SPP, due December 2, 2005, the State must provide either:

(1) data and analysis demonstrating that it is meeting the requirements
    at 34 CFR §300.146(b) that SCDE examines data to determine if
    significant discrepancies are occurring in the rate of long-term
    suspensions and expulsions of children with disabilities: (1) among
    LEAs in the State; or (2) compared to the rates for children without
    disabilities within the agencies. If the discrepancies are
    occurring, SCDE must review and, if appropriate, revise (or requires
    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 these policies, procedures and practices comply with
    IDEA; or

(2) a plan, including strategies, proposed evidence of change, targets
    and timelines designed to ensure correction of the noncompliance as
    soon as possible and not more than one year after OSEP accepts the
    plan. No later than six months from the date of this letter, the
    State must submit a Progress Report including data and analysis
    demonstrating progress toward compliance, and provide a report to
    OSEP, with data and analysis demonstrating compliance, as soon as
    possible, but not later than 30 days following the end of the one
    year timeline.

### Statewide and districtwide assessment

OSEP's September 2004 letter required the State to include, in the FFY
2003 APR[^2], an analysis of compliance data related to the requirements
of 34 CFR §§300.138 and 300.347(a)(5) that children with disabilities
were included in statewide and districtwide assessment programs with
appropriate accommodations and modifications identified in the IEP. On
pages 112 through 117 of the FFY 2003 APR, the State reported data on
the participation rate of children with disabilities in the statewide
assessment program[^3] during three years (2002, 2003, and 2004) for
grades 3 through 8. The participation rates for children with
disabilities in grades 3 to 8 ranged between 97.6% to 99% in the area of
English/language arts and mathematics as compared to children without
disabilities in those same grades whose participation rate ranged from
98.9% to 99.8%.

The performance rate for students with disabilities fluctuated during
the three-year period. On pages 112 and 113 of the FYY 2003 APR, data
showed that approximately half (52% to 55%) of the children with
disabilities performed at the below-basic level in English/language arts
and mathematics as compared to approximately 23% of children without
disabilities performing at the same level and in the same academic
areas. The smallest performance gap was at the basic level, i.e., 32% to
41% of children with disabilities compared to 40% to 45% of children
without disabilities. South Carolina noted that the performance gap
between children with and without disabilities was not closing at the
expected rate determined by the State for 2004 for the four performance
levels.

SCDE attributed the performance gap to the limited effort by the State
to drive instructional decision-making, lack of evidence-based
instructional techniques for children with disabilities, and the lack of
the development of school-wide instructional models. To address these
areas, SCDE developed initiatives as part of its State Improvement Grant
targeting the areas of reading and mathematics. OSEP looks forward to
reviewing the State's data regarding the participation and performance
of children with disabilities in statewide and districtwide assessments
as part of the SPP.

On pages 113, 114, 116 and 117 of the FFY 2003 APR, the State reported
that in 2004, students in grade 10 participated in South Carolina's High
School Assessment Program (HSAP). Results of the 2004 HSAP
administration were used to establish baseline performance for students
with and without disabilities, in grade 10, in the areas of
English/language arts and mathematics. During July and August 2005, the
State established and publicized to stakeholders and LEAs targets for
students with and without disabilities based on results of the 2005 HSAP
administration.

> [Least restrictive environment (LRE)]{.underline}

On page 150 of the FFY 2003 APR, SCDE reported that, because OSEP
identified the placement of children in special education classes for
less than 21% and greater than 60% of the day as areas of concern, the
State examined data for children with disabilities in these two
placements. Data was reported, by district, for 2003 and 2004 on pages
150 through 166 of the FFY 2003 APR. On page 171, the State reported
that South Carolina met the target in 2003, with 48% of the children
with disabilities placed in special education classrooms less than 21%
of the day. This placement percentage remained constant in 2004.

The State noted an increase in the percentage of children with
disabilities in special education classes for greater than 60% of the
day for these two years (18.82% in 2003 and 19.45% in 2004), but the FFY
2003 APR did not include reasons for the increase; however, SCDE noted
that the State addressed improvement in this area by: (1) including
presentations on improving results for children with disabilities in the
general curriculum during the State's fall special education
administrators training; (2) hiring consultants to provide training on
accommodations and modifications for standards-based instruction and the
use of curriculum-based measurements as a progress monitoring tool; and
(3) supporting the school-wide model in positive behavior supports and
the strategic instruction model through the State Improvement Grant. On
pages 173 through 175, SCDE included strategies and activities to
improve performance in this area. OSEP looks forward to reviewing the
State's data and analysis, strategies and targets for improved
performance regarding the placement of children with disabilities in the
LRE, in the SPP.

##### Preschool performance outcomes

On page 176 of FFY 2003 APR, SCDE noted that the State did not collect
data in this area; however, the State established targets for improved
performance and strategies and activities to achieve those targets by:
(1) developing a method for collecting data and analysis on outcomes for
preschool children with disabilities; (2) creating a draft framework for
developing and measuring early childhood outcomes; and (3) identifying
other offices in the State for collecting and using data and analysis.

The SPP instructions establish a new indicator in this area, for which
States must provide baseline data in the FFY 2005 APR due February 1,
2007. Absence of this information at that time will be considered in
OSEP's annual determination on the status of the State's performance and
compliance required under section 616(d) of the IDEA. The State should
carefully review the instructions to the SPP in developing its plans for
this collection.

***Secondary Transition***

On page 179 of the FFY 2003 APR, SCDE reported that OEC met with members
of SCDE's technology team to add data fields to the current database on
collecting information on post-school outcomes information for students
with and without disabilities who graduate each year. The forms for data
collection were posted on SCDE's website and collected during the
2004-2005 SY on students exiting in the spring of 2004. The State
proposed that these data be disaggregated by the fall of 2005.

The SPP instructions establish two new indicators in this area (#13 and
#14), for which States must provide baseline data in the FFY 2005 APR,
due February 1, 2007. The indicators are: the percent of youth aged 16
and above with an IEP that includes coordinated, measurable, annual IEP
goals and transition services that will reasonably enable the student to
meet the post-secondary goals; and the percent of youth who had IEPs,
are no longer in secondary school and who have been competitively
employed, enrolled in some type of post-secondary school, or both,
within one year of leaving high school. The State should carefully
review the instructions to the SPP in developing its plans for these
collections.

## Conclusion 

South Carolina must submit to OSEP, not later than October 15, 2005,
**data and analysis demonstrating compliance with the requirements at**:
**(1)** 34 CFR §300.600, **that South Carolina identifies and corrects
noncompliance identified through its monitoring process; (2)** 34 CFR
§§300.24(b)(2) and (9), 300.300 and 300.347(a)(3) that children with
disabilities in need of psychological counseling services receive the
services in accordance with their IEPs; (3) 34 CFR §§300.121(d)(3)(ii),
300.520 and 300.522 that appropriate personnel make the determination as
to services and the appropriate setting for students with disabilities
who have been suspended and expelled; (4) 34 CFR §300.511 that due
process hearing decisions are issued to parties within timelines; and
(5) 34 CFR §§300.320, 300.121(c)(1)(ii)) and (c)(2), and 300.530 to make
FAPE available to Part B eligible children by their third birthday
(including the focused monitoring addendum and folder review checklist,
standards requiring the administration of evaluations, in a timely
manner, to ensure IEPs were in effect by the child's third birthday; and
, from the LEA interview guides, *interview* questions specific to
whether ESY services were available to children with disabilities who
turn three during the summer, and whether evaluations were administered
in a timely manner to ensure that IEPs or individualized family service
plans (IFSPs) were in effect by the child's third birthday).

With the SPP due December 2, 2005, the State must:

(1) submit a plan to OSEP, including strategies, proposed evidence of
    change, targets and timelines designed to ensure compliance with the
    requirements at 34 CFR §300.755 as soon as possible and not more
    than one year after OSEP accepts the plan. No later than six months
    from the date of this letter, the State must submit a Progress
    Report including data and analysis demonstrating progress toward
    compliance with the requirements at 34 CFR §300.755, and provide a
    report to OSEP, with data and analysis demonstrating compliance, as
    soon as possible, but not later than 30 days following the end of
    the one year timeline; and

(2) either data and analysis demonstrating that it is meeting the
    requirements at 34 CFR §300.146(b) that SCDE examines data to
    determine if significant discrepancies are occurring in the rate of
    long-term suspensions and expulsions of children with
    disabilities: (1) among LEAs in the State; or (2) compared to the
    rates for children without disabilities within the agencies. If the
    discrepancies are occurring, SCDE must review and, if appropriate,
    revise (or requires 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 these policies, procedures and
    practices comply with IDEA; or a plan, including strategies,
    proposed evidence of change, targets and timelines designed to
    ensure correction of the noncompliance as soon as possible and not
    more than one year after OSEP accepts the plan. No later than six
    months from the date of this letter, the State must submit a
    Progress Report including data and analysis demonstrating progress
    toward compliance, and provide a report to OSEP, with data and
    analysis demonstrating compliance, as soon as possible, but not
    later than 30 days following the end of the one year timeline.

IDEA 2004, §616, requires each State to submit a SPP that measures
performance on monitoring priorities and indicators established by the
Department. These priorities and indicators are, for the most part,
similar to clusters and probes in the APR. OSEP encourages the State to
carefully consider the comments in this letter as it prepares its SPP,
due December 2, 2005.

OSEP recognizes that the APR and its related activities represent only a
portion of the work in your State and looks forward to collaborating
with you as you continue to improve results for children and youth with
disabilities and their families. If you have questions, please contact
Debra Jennings at (202) 245-7389.

> Sincerely,
>
> /s/Troy R. Justesen
>
> Troy R. Justesen

Acting Director

Office of Special Education Programs

cc: Susan DuRant

[^1]: South Carolina's Office of Safe and Drug Free Schools collected
    the drop-out rate data.

[^2]: The regulations under NCLB provide, at 34 CFR §200.20(c), that, in
    order to meet AYP, a school or LEA must ensure that not less than 95
    percent of its students with disabilities in the grades tested
    participate in the State assessments under 34 CFR §200.2.

[^3]: Students with disabilities took the Palmetto Achievement Challenge
    Test (PACT) or PACT-Alternate.