# Enclosure D

# Indiana Special Conditions

# I. Basis for Requiring Special Conditions

Pursuant to 34 CFR §80.12, the Office of Special Education Programs
(OSEP) is imposing Special Conditions on Indiana's Federal Fiscal Year
(FFY) 2008 grant award under Part B of the Individuals with Disabilities
Education Act (Part B). OSEP is imposing the following Special
Conditions to ensure that the State's General Supervision system
(including monitoring, complaints, hearings, etc.) corrects
noncompliance as required by Part B, 20 U.S.C. 1232d(b)(3)(E) and 34 CFR
§§300.149 and 300.600.

The failure of the State's general supervision system to timely correct
noncompliance was first addressed in OSEP's November 22, 2006
verification visit letter. In that letter, OSEP found that the State had
not met its responsibility to ensure that noncompliance is corrected
within one year of its identification pursuant to 34 CFR §300.149
(formerly 34 CFR §300.600). OSEP required that, in the FFY 2005 Annual
Performance Report (APR) due February 1, 2007, the State submit to OSEP
either: (1) documentation that the Indiana Department of Education (IDE)
was implementing effective procedures for ensuring the timely correction
of noncompliance, including being able to demonstrate that each special
education planning district has corrected noncompliance identified more
than one year previously; or (2) the State's plan for correcting and
demonstrating, within one year from the date on which OSEP accepted the
plan, that IDE was effectively ensuring correction of noncompliance
within the one-year timeline. Additionally, as part of its response to
Indicator 15 in its FFY 2005 APR, the State, consistent with the
instructions for the APR, was required to provide data regarding its
effectiveness in correcting noncompliance that it identified during the
2004-2005 reporting period.

In the FFY 2005 APR, the State reported "100% of noncompliance corrected
within one year was not achieved." The State did not provide any data
regarding the number of findings made during 2004-2005, the percent or
number of findings corrected in 2005-2006, or any other documentation of
its effectiveness in correction of noncompliance. Further, the State
failed to submit a plan to ensure the timely correction of
noncompliance, indicating only that: (1) improvement activities have
been greatly expanded; (2) OSEP's verification visit helped identify
areas needing improvement; (3) correction of noncompliance within 12
months would be a top priority; and 4) performance and compliance
results would be posted on the State's website and would serve as
notification to local districts of noncompliance and the start of the
12-month period for correcting noncompliance. OSEP's June 15, 2007 FFY
2005 SPP/APR response table required the State to provide, in the FFY
2006 APR, due February 1, 2008: (1) data demonstrating compliance with
the requirements of 20 U.S.C. 1232d(b)(3)(E) and 34 CFR §§300.149 and
300.600, including data on the correction of outstanding noncompliance
identified in FFY 2004; and (2) in its response to Indicator 15,
disaggregated by APR indicator, the status of timely correction of the
noncompliance findings identified by the State during FFY 2005, and the
noncompliance identified in OSEP's November 22, 2006 verification visit
letter.

The State's FFY 2006 APR, submitted on February 1, 2008, demonstrates
that its general supervision system is not effective at identifying and
correcting noncompliance with Part B and the data the State submitted
were not valid and reliable. In response to Indicator 15, the State was
required to report the percent of noncompliance corrected within one
year of identification, including the noncompliance identified through
monitoring, complaint investigations and due process hearings for FFY
2006 and FFY 2005. The State was also required to include data in its
FFY 2006 APR on the correction of outstanding noncompliance identified
in FFY 2004. Although the State described actions that it is taking to
ensure identification and timely correction of noncompliance and
provided data indicating 100% compliance with correction of
noncompliance as required by the measurement of the indicator, the State
acknowledged that the 100% correction was based only on findings of
noncompliance from complaint investigations and findings of
noncompliance/verifications of corrective action. The State also
reported that it had no monitoring findings for either FFY 2005 or FFY
2006 because it failed to issue any letters of noncompliance to LEAs for
the data it had collected in FFY 2005 or FFY 2006 that showed
noncompliance.

In a memorandum to OSEP, dated June 16, 2008, and a telephone
conversation on the same day, the State informed OSEP that on May 16,
2008 it issued written findings of noncompliance to 330 local
educational agencies (LEAs) (700 findings total) whose verified FFY 2005
(School Year 2005-2006) and/or FFY 2006 (School Year 2006-2007) data
showed noncompliance with APR Indicators 9, 10, 11, 12, and 13, and
informed those LEAs that they must correct the identified noncompliance
no later than one year from the May 2008 identification of that
noncompliance. While these data show progress in the State's
identification of noncompliance and demonstrate that the SEA expects
LEAs to correct noncompliance within one year from identification, the
State has not yet demonstrated that it is ensuring timely correction of
noncompliance, as required by Part B, 20 U.S.C. 1232d(b)(3)(E) and 34
CFR §§300.149 and 300.600. Further, the large number of findings of
noncompliance that the State ultimately identified from FFY 2005 and
2006 suggests that serious noncompliance has gone uncorrected for years.
In addition, we also have confirmed that the State has not issued
determinations based on LEA performance in FFY 2005 on the Part B State
Performance Plan/Annual Performance Report Indicators, as required by
section 616(a)(1)(C)(ii) of the IDEA.

Therefore, OSEP is imposing Special Conditions on Indiana's FFY 2008
grant award under Part B.

**II.** **Nature of the Special Conditions**

Pursuant to the Special Conditions, the State must provide by June 1,
2009 data demonstrating compliance with the requirements that the State
timely identifies and corrects noncompliance as soon as possible but in
no case later than one year from identification as required by Part B,
20 U.S.C. 1232d(b)(3)(E) and 34 CFR §§300.149 and 300.600. To document
its progress in ensuring the identification and timely correction of the
noncompliance, the State must submit two Progress Reports, the first
with its FFY 2007 APR due on February 2, 2009 and a final Progress
Report by June 1, 2009, with the following data:

1\. In the first Progress Report, due February 1, 2009 with the State's
FFY 2007 APR, the State must report:

a.  the specific number of findings of noncompliance that the State made
    in May 2008;

b.  the number and percent of those findings that have already been
    corrected by February 1, 2009;

c.  when corrective action plans (CAPS) for the May 2008 letters of
    findings, and any subsequent letters of findings, were issued and
    the status of the CAPs, including any other actions the State has
    undertaken to ensure that the CAPs are being implemented and that
    the noncompliance identified in the May 16, 2008 letters of findings
    and any subsequent letters of findings will be corrected within one
    year of identification; and

d.  that the State has issued determinations to LEAs for FFY 2005 and
    FFY 2006.

2\. In the final Progress Report, due by June 1, 2009, the State must
report:

a.  the number and percent of findings that the State made on May 16,
    2008 or an earlier date that have been corrected no later than one
    year from identification; and

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b.  any enforcement actions that the State took with any LEAs that did
    not correct

noncompliance within one year from identification and the status of such
nforcement

actions.

III\. **Evidence Necessary for Conditions To Be Removed**

The Department will remove the Special Conditions if, at any time prior
to the expiration of the grant year, Indiana provides documentation,
satisfactory to the Department, that it has met the requirements and
conditions set forth above, which require Indiana to submit data
demonstrating compliance with the general supervision requirements that
are the subject of these Special Conditions under Part B.

IV\. **Method of Requesting Reconsideration**

The State can write to OSEP Acting Director, William W. Knudsen, at the
address below, if it wishes the Department to reconsider any aspect of
these Special Conditions. The request must describe in detail the
changes to the Special Conditions sought by the State and the reasons
for those requested changes.

V. **Submission of Reports**

All reports that are required to be submitted by Indiana to the
Department under these Special Conditions must be submitted to:

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